The Outsider Legal Genius Who May Rescue Trump

Seth Barrett Tillman, an associate professor of American constitutional law at Ireland’s Maynooth University, is not the first interview subject to have sent me reading suggestions before we met, but he is the one whose emailed packet of PDFs most unsettled whatever prior idea I had of him.

Thanks to debates over the emoluments clause’s applicability to the presidency, and, more recently, over Donald Trump’s eligibility for the White House under the insurrection clause of the 14th Amendment, Tillman is known in academic legal circles for arguing that the president, for constitutional purposes, is neither an “officer of the United States” nor an “officer under the United States.” He sent me four pieces of writing that made this novel assertion look tame. Tillman has a growing reputation as a consequential contrarian, but he had gone deep enough and far enough into untouchable regions of inquiry to cheapen any label anyone might attach to him.

In two academic papers published in 2021, Tillman, who is an Orthodox Jew, argues that the North Carolina House of Commons’ failed 1809 attempt to expel Jacob Henry over the Jewish legislator’s objections to the state’s religious test for public office has been misremembered to the point of mythology: Henry likely did swear the oath he was alleged to have refused, and there is scant evidence he considered himself Jewish. After a rigorous and richly footnoted plunge into North Carolina constitutional history, as well as an exhaustive close reading of all existing records of the House of Commons debate over Henry’s attempted expulsion, Tillman offers the revisionist argument that Henry was nearly thrown from office not because of his commitment to Jewish religious beliefs that he may not have ever held, but because Henry, who was of Jewish heritage, had sworn his oath of office on a Christian Bible, an act which his legislative colleagues could have “perceived as a kind of lie.” His opponents then “pounced and sought to entrap him,” Tillman wrote.

It is only through a long process of misremembering that Henry’s defense is now considered a watershed in the history of American pluralism. “There are multiple aspects of the standard narrative involving the Jacob Henry story that just don’t make any sense and that people just have mindlessly repeated for almost two centuries now,” Tillman told me when we met in early February. “What are we doing as a society that we tell stories that don’t make any sense, and there’s no recognition that the story on its face wasn’t palatable, wasn’t believable?”

The third piece he sent me was a satirical fake historical document, a letter from Irish President Éamon de Valera to Churchill, Roosevelt, and Stalin in April of 1945 pleading with them to stop their atrocious assault on the Axis powers. “You and your territories are no longer at any substantial risk (except for an occasional V-2 rocket—which are unguided and frequently land in little-populated areas). In these circumstances, your continued use of massively devastating weapons—which, of necessity, must kill many wholly innocent nationals of the Axis Powers—is no longer justified (to the extent their use was ever justified),” writes Tillman in the voice of de Valera, who urges the allies to “declare a cease-fire, end all blockades and … allow the long-suffering peoples of the Axis nations to feed themselves.” Astoundingly, this piece appeared long before this past October, in the spring 2015 issue of the Claremont Review of Books, evidence both of Tillman’s prescience and of how drearily predictable the mangling of humanitarian concepts and the laws of war have become.

But the most astonishing entry in the Tillman archive was a semi-autobiographical essay that the law professor labeled a work of short fiction, called “Purim and My Bangladeshi Friend,” from 2013. The narrator is an Orthodox Jew who befriends a South Asian immigrant during their shared morning commute from Philadelphia to Wilmington, Delaware. In one of their daily discussions, the man wonders why Pakistanis are so haughty toward Bangladeshis like himself, even though they were both proud Muslims and his side had won the brutal civil war they’d fought in 1971. The Tillman stand-in has an explanation, but warns “you are not going to like it. I suspect that the reason some Pakistanis look down on some Bangladeshis some of the time ... is that they think Bangladeshis are ... are ... the children of raped women.” After a few minutes of silence, the Bangladeshi man admits that his friend might be right. For much of the world, the narrator continues, the rape of a subject population’s women “is just how all men they have ever known or heard about have acted. And if some men somewhere during war time did not act that way, then that means that those men were either timid or weak.”

This brings our narrator to the Book of Esther, which is the story of what happens to a Jewish woman whose tribe can’t protect her. “An adult, who struggled with the text, would realize that Esther did not win a ‘beauty contest’; she was not free to opt-out; she was not free to leave at will. Simply put, she was a kidnapped woman: a woman whose family, friends, and community were either unwilling or unable to save her from a tyrant. A tyrant who used a public contest to demonstrate his empire’s dominance over conquered peoples by taking their women.”

I read “Purim and My Bangladeshi Friend” in almost disembodied amazement: The author was a thinker who had burst through the usual inner barriers to say something both necessary and genuinely shocking. Even on an iPhone screen it was almost shaming to encounter a mind so unafraid.

A recent profile in The New York Times had made Tillman out as an eccentric, a Dublin-based legal expert with obscure academic interests who also happened to be an Orthodox Jew and a compelling advocate of positions that sound too nuts for respectable people to take seriously, however original they may be. Many of us savor the titillation of a brilliantly made argument in favor of something facially ludicrous, and it is exhilarating to watch reality invert itself to obey one person’s superior powers of thought. My favorite example of this phenomenon is Bill James’ meticulous case in The New Bill James Historical Baseball Abstract, published in 2001, that Pete Rose might not have bet on baseball, an essay whose brilliance is hardly tainted by Rose’s 2004 admission that he did in fact bet on baseball.

Tillman was no mere seeker of contrarian thrills, though. Neither was he a player of empty postmodern language games: Because truth exists for him, there is something to be learned from the occlusion of specific truths. When I met Tillman in Parsippany, New Jersey, in the Judaica-filled dining room of an in-law’s townhouse, I congratulated him on arriving at the darkest interpretation of the Purim story that I’d ever come across. I noted that even commentators who take a hard-nosed political approach to Esther, like Yoram Hazony, can drift into apologia, arguing, for instance, that the Jewish reprisal killings in the book’s later chapters are the inevitable result of the Persian king’s inability to rescind his genocidal order.

“This is one of those things that happens all the time when we talk about religion or the Bible or even lots of history,” Tillman told me, “We have this problem and then we have a solution and people say, well, that’s the solution. And the solution isn’t a solution. … If the king is a king and has total sovereign, absolute power, how does he get away with saying there’s this constitution behind him that limits his authority to rescind? He can kill anyone he wants any time he wants: He gets rid of Haman on the spot. There’s no trial. There’s no one to tell him, ‘no.’”

Human nature in general, not just its various subsets of law, history, and religion, often prefers useful fictions to uncomfortable truths, especially when a figure as unique and polarizing as Donald Trump enters the equation. “We are too willing to accept explanations that have no explanatory force,” Tillman said.

I met Tillman late on a Friday morning. He had set out a tea service and narrow disks of Bendicks bitter chocolates—the beloved English-made sweets were about to lose their kosher certification, and his family in Dublin was now stocking up on them. He wore a gray vest, and he often smiled from deep within a thick, whitening beard, which existed in striking balance with a crowning wave of orderly black hair. He often spoke quickly, in excited yet organized mini-essays of speech, though Tillman also wields a law professor’s looming threat of catching you unaware of your own nonsense.

The previous day Tillman had been at the Supreme Court in Washington with South Texas College of Law professor Josh Blackman, his research and writing partner, to attend the oral arguments in Trump v. Anderson, the case that would determine whether a ruling of the Colorado state Supreme Court could exclude Donald Trump from the state’s ballots over the ex-president’s allegedly insurrectionist conduct on Jan. 6, 2021. The high court ruled unanimously in Trump’s favor nearly a month later.

During the arguments in February, the former president’s lawyers led with an idea that Tillman and Blackman had honed over the course of a nearly decadelong collaboration, the argument that had convinced an earlier Colorado trial court not to toss Trump from the ballot: Per Tillman and Blackman, the framers of the Constitution did not intend for “officer of the United States” to refer to a holder of high elected office but to officials appointed by the the president, cabinet members, or courts, which meant that voters still held the final say over whether an alleged “insurrectionist” could be president. Both the conservative Neil Gorsuch and the liberal Ketanji Brown Jackson had asked probing questions hinting at their possible openness to this unusual and, until recently, not very broadly endorsed reading of the Constitution, though court-watchers know better than to guess a justice’s state of mind from their pronouncements during oral arguments.

The Colorado case was the furthest any group of Americans had ever gotten in disqualifying a plausible opposition presidential candidate from an election. That the offices and officers issue had become relevant to a historic Supreme Court case was not the kind of validation Tillman had ever sought or expected. He told me that when he began researching the original meanings of the various office-related titles in the U.S. Constitution he did not think the topic would ever be litigated, and saw its lack of political salience as aiding in a clearer comprehension of the past. “The things I wanted to understand, the things that I thought were important to know, become more difficult to write about the more currency they have,” Tillman explained. “That is: If you’re trying to understand the past, the present often gets in the way and the past often gets rewritten to make itself useful to the present.”

Thus the Supreme Court’s particular views on Tillman’s ideas had little bearing on his larger project of exhuming the intended meaning of the Constitution’s language. “I won’t lose any sleep if all nine justices think I’m wrong,” he told me in February. “I’d rather all nine thought I were right, but it’s not a reflection on them or on wider society if they agree with me or not.” Over the course of his life, Tillman had strived for intellectual freedom and achieved it, something that seemed to matter more to him than anyone’s recognition or approval, no matter who they were. If the conditions under which he’d reached his ideal might seem strange, Dublin being a hotbed neither of American constitutional law theory nor of frumkeit, it is more a reflection on the current atmosphere than on Tillman himself.

Tillman was raised in a secular household in the Bronx and Rockland County. He told me he had wanted to be a legal academic ever since he was an undergraduate at the University of Chicago, though he believed he had to get a lucrative job out in the real world in order to realize this aspiration. After college, Tillman worked as a commodities trader in Chicago. For a time, his office shared a building with a Chabad house—the law professor became more religious in his early 30s and now describes himself as a Chabadnik, though he half-quipped that in his view he’s “not very good at it.”

One day, toward the end of a comfortable trading career, the writer of what Tillman said was his best law school recommendation, the Nobel Prize-winning economist George Stigler, popped up in The New York Times obituary page. Tillman realized he couldn’t put off his desired future as a legal academic for very much longer. When Tillman entered Harvard Law School he was already in his early 30s, markedly older than most of his fellow students, and more aware of the existence of a world outside the legal professions. “The younger students, the ones who went directly from college to law school, many of them would hang on every word their professor said, like it was truth from God, and I didn’t feel that way at all,” said Tillman. “My attitude was: Show me.”

The practice of law—as a clerk for a federal judge in Alabama, then as a civil litigation specialist in Washington, D.C., and Wilmington, Delaware—was for Tillman a necessary step toward a life of teaching, writing, and research. He was willing to take nearly any scholarly job that would pay him a livable salary and allow him to pursue his intellectual interests. In 2012 an online academic jobs board listed an opening for an American constitutional law lecturer at Maynooth University, a major branch of Ireland’s national university located outside of Dublin.

Josh Blackman encountered Tillman’s writings in the early 2010s, just as Tillman started his academic career. They first met at a conference in Chicago in 2014 and began writing together not long after. Houston is six hours behind Dublin. There are times of the year when Shabbat begins in Dublin at around 9:00 a.m. Houston time. Blackman doesn’t check or send email on Shabbat, meaning there is a 30-hour period each week when the two cannot be in communication. Complicating matters is that Fridays are an important day in the courts, which will sometimes announce their rulings at the very end of the week. The pair have often had to collaborate on briefs or blog posts within tight windows, while the sun is rapidly setting in Dublin.

Blackman and Tillman can turn around writing so quickly because the real work has already taken place, over the course of hourslong debates and conversations over the phone. As in any worthwhile intellectual partnership there are differences of sensibilities, opinion, and worldview that are either smoothed over or synthesized: Tillman speaks in sweeping conceptual terms, like he’s laying out the argument for an unwritten essay; Blackman is often more direct and laserlike, as if he’s a judge issuing a bench order.

Ireland turned out to be an ideal environment for Tillman. An observant Jewish life is possible in Dublin, where Tillman said it was not difficult to find kosher food, or a religious school for his children. The relatively small number of Jews in town doesn’t bother him: “I’m not going to feel isolated anywhere,” he assured me. Even if European speech norms fell far short of the U.S.’s First Amendment protected free-for-all, Irish universities were less likely to enforce a rigid institutional ideology than their American counterparts, and his research areas had nothing to do with any hot-button issues on his side of the Atlantic. The collaboration with Blackman kept Tillman in the thick of the American legal debates that interested him, which he had the added benefit of being able to observe from a safe distance. Tillman’s students were interested in the U.S. Constitution as an important body of law in comparative legal studies, rather than as ammunition in their society’s political wars. “One of the reasons I’m able to do the things I do and ask the questions that I’ve asked is precisely because I’m not writing on things Irish and European,” he explained. “There’s less interest in Ireland in what I’m doing, and therefore more opportunity for me to do it.”

Ireland underwent rapid change in the 2010s, going from a fairly homogenous society rooted in a fading Catholic traditionalism to a suddenly fiercely secular one where some 20% of the population was born abroad. Those shifts had little bearing on what a theorist of American constitutional law could or couldn’t do. In the U.S., meanwhile, almost all areas of academia, popular culture, and the arts were gradually being treated as minor branches of politics, the only realm that mattered anymore.

American academia became yet another institutional complex organized around enforcing the correct ideologies. It was hardly surprising that academic legal celebrities were overwhelmingly supportive of the idea that Colorado could kick Trump off its ballot. The fact Tillman was an entire ocean away from the right-thinking Harvard and Yale law faculties protected him from U.S. academia’s herd mentality while giving his critics a pretext for dismissing him. “Tillman challenges orthodoxies, things that people took for granted,” Blackman explained to me. “He makes them rethink it, and they don’t like doing that. The immediate response is, ‘he’s gotta be nuts. It can’t be that this guy in Ireland can rethink everything—it’s wrong.’” Luckily, Blackman noted, Tillman “doesn’t seek their approval.”

“It happens a great deal in academic life,” Tillman told me, “that the people at the center often feel very threatened with even considering the idea that there’s something essential they don’t know.”

Tillman’s various projects often probed different versions of a unifying thematic question: “What if there’s something we forgot in part because no one ever thought they had to write it down?” as he put it to me. He believed that the meaning of seemingly innocuous or self-evident terms in the Constitution belonged to this category of vanished knowledge. As early as the mid-1990s, Tillman noticed that even textualist scholars, most notably Akeel Reed Amar, treated the Constitution’s offices and officers language as if every title meant the exact same thing. Retrieving any possible original, intended meaning required inventive new approaches.

The framers of the Constitution hadn’t bothered to define “office under the United States,” just as their counterparts in Britain didn’t think they needed to define its predecessor phrase, “office under the Crown.” Tillman looked for “corresponding language” between the U.S. Constitution and the legal systems of other former British colonies—the Aussies did actually define “officer of the Commonwealth of Australia,” which it turned out did not refer to a holder of high elected office. Tillman consulted with parliamentarians around the common-law world to see what ambiguous mirror phrases in the U.S. Constitution meant under their systems, something that allowed him to construct “a taxonomy of different office and officer language.”

The whole topic seemed abstract enough never to reach a courtroom, though that didn’t make it insignificant. “My attitude was, sometimes it’s important just to know,” said Tillman. “Sometimes we can learn something important by understanding how knowledge is corrupted or destroyed or forgotten.” Tillman’s attitude endured even as the politics of his research area radically and abruptly changed. On Nov. 9, 2016, Americans elected Donald Trump as their next president of the United States.

The arcane legal theories deployed in pursuit of Donald Trump are a function of the zero-sum, existential logic of Trump-era politics. If Trump is indeed a threat to the survival of American democracy, it stands to reason that no possible line of attack against him should go unused. Exotic theories involving underexamined sections of the Constitution have thus been deployed alongside absurdist stories of Russian collusion or a looming fascist dictatorship. Intellectual honesty, the search for truth, and basic logic have all been frequent casualties of this approach, undermining the social authority of the press, academia, medicine, and the law. The prestige of these professions was largely grounded in a broad, popular acceptance—now largely squandered—that they were society’s tribunes of rigor and openness, and that an advanced democracy couldn’t function without them.

The case to strike Trump from the Colorado ballot marshaled dubious constitutional reasoning in service of establishment fantasy politics: Perhaps Trump didn’t need to be convicted of any crime in order to be regarded as an “insurrectionist” under the 14th Amendment, meaning he could be stricken from the ballot and deprived of another term in office on the say-so of those who disliked him. The whole maneuver was premised on the idea that a state could act alone in declaring a federal candidate constitutionally ineligible for office; it of course assumed, as most everyone used to, that the president is an “officer of the United States.”

Tillman, having begun his exploration of the offices and officers issue long before Trump ever declared his candidacy for president, can credibly say that he has no partisan interest in the outcome of any of the cases against the ex-president. Tillman noted to me that William Baude, a University of Chicago law professor who is one of the major theorists behind the ballot disqualification push, wrote Tillman’s recommendation for promotion to associate professor at Maynooth.

While the Supreme Court case has raised Tillman’s profile, from one perspective it represents an unfortunate political intrusion into his intellectual ideal. Tillman, with Blackman as his co-author, had successfully reclaimed an otherwise lost American past, only for their contribution to be drafted into America’s Trump-era political derangements. Tillman seems to understand this process, and the tendencies in human society that it exposes, on a broader scale and a longer timeline than the critics who accuse him and Blackman of crankery—or, for that matter, than the people who celebrate the relevance of their ideas to a pro-Trump legal battle.

Tillman has sometimes focused his distinct methods of curiosity, skepticism, and close textual analysis on Jewish topics—most recently Israelite notions of kingship. Why, for instance, is Jonathan so supportive of David’s claim to the throne when his father, King Saul, wants Jonathan himself as his successor? The usual explanation, that Jonathan is a loyal friend dazzled by David’s awesome personal attributes, doesn’t really explain the warrior-prince’s total lack of interest in a kingship that’s been gift-wrapped for him.

“I think really what’s going on there is something very difficult for us to understand today, because it has to do with a much deeper, older past,” Tillman said. “And the deeper past is what happened with Moses and with Joshua.” Joshua, the first post-Exodus national leader of the Israelites, was not the son of Moses,” the law professor pointed out—there is, he speculates, “an older conception of monarchy” hiding on the surface of the Tanakh, one in which the king was expected to choose a highly qualified successor rather than a close male relative. The Israelites wouldn’t be unique in this regard, Tillman explained. “The Chinese would say it was only in later times, after there was a moral and cultural decline, when people weren’t the wise, sage kings of the past, where the expectation became you’d leave the kingdom to your son, or your nephew, or your family, which was seen as a step down in civilized norms.”

If Tillman is correct, then over the course of thousands of years, Jews have forgotten how to read the most basic political realities of our formative era into our most studied and cherished books, including the Torah itself. Perhaps a similar fog has descended over Americans in the course of 250 years separate from the ephemera of our politics, which are in any case pretty mild compared to the civil bloodshed of the Israelite monarchy. The standard narrative about Purim or Jonathan was no more acceptable than, as Tillman put it, “this idea that the Founding Fathers, who sat in the heat of Philadelphia for months and had committees to standardize the language of the Constitution, just picked different office- and officer-related language out of the blue.”

On March 4, the Supreme Court ruled 9-0 in favor of Trump’s inclusion on the Colorado ballot, but without deciding on whether the president is an “officer of the United States.” In the days after the decision, Blackman and Tillman both stressed that the matter was far from settled. “The scope of this holding is really only in the context of an election,” Tillman pointed out over a Zoom call from Dublin. Congress could use the insurrection clause as justification for rejecting electoral votes for Trump were he to win the 2024 election, and if Trump went on to serve as president anyone adversely affected by his decisions could claim the Constitution didn’t permit him to hold office in the first place. The offices and officers question could come before the court again, but in a country driven even crazier.

Did the persistence of a constitutional obscurity, and the dedication of partisans to exploiting it in order to preclude an undesired democratic result, reveal a strength or a weakness of the U.S. system? Here, it was possible to spot a difference of opinion between Blackman and Tillman.

“Trump just makes obscure constitutional law great again,” Blackman sighed the week after the ruling. “Trump has this unique constellation of facts that really test the boundaries of what the law permits.” Blackman didn’t seem to think the discovery of exciting new frontiers in constitutional theory was worth the attendant innovations in lawfare, the use of legal processes to circumvent the normal run of politics.

The Supreme Court will soon have to rule on Trump’s claims that he was immune from prosecution over alleged criminal acts as president, another instance where the ex-president and his opponents are battling over fundamental questions of law and democracy in the months before Americans are supposed to vote. “To be completely honest, I would much rather have never had to deal with any of these cases,” said Blackman.

For Tillman, the alleged tendentiousness of the ballot exclusion push recalled much grimmer possibilities. “We have to allow people to make use of the legal system to challenge their political opponents even on weak theories because if we don’t the only alternative is violence,” Tillman told me from Dublin. “What appears to some people as irresponsible lawfare is the price we all pay for the rule of law.”