Democracy & Elections

The Lawfare Podcast: James A. Heilpern on Why Section 3 Reaches Presidents

Roger Parloff, James Heilpern, Jen Patja
Thursday, February 1, 2024, 8:00 AM
Did the authors of Section 3 intend for it to apply to presidents?

Published by The Lawfare Institute
in Cooperation With

We're approaching the historic oral argument of the U.S. Supreme Court in Trump v. Anderson. That's the case over whether Donald Trump is disqualified from holding the presidency under Section 3 of the 14th Amendment, which bars certain insurrectionists from holding certain federal and state posts. 

Lawfare Senior Editor Roger Parloff sat down with James A. Heilpern, a Senior Fellow at Brigham Young University Law School. Heilpern co-authored with Michael T. Worley a new article on Section 3 that was just posted online January 1 and yet has already been cited in several Supreme Court briefs, including the merits brief of the voter challengers in Trump v. Anderson. It addresses the disputed issue of whether Section 3 even applies to presidents, and it concludes that it does. The article uses corpus linguistics and other forms of legal research to look at how crucial phrases were used in 1788, when the original Constitution was ratified, and also in 1868, when Section 3 was ratified.

Click the button below to view a transcript of this podcast. Please note that the transcript was auto-generated and may contain errors.



[Audio Excerpt]

James A. Helipern: Sometimes they also will use the word "elect," and they will elect-- they as a general assembly--will elect the governor. And in certain states, we even see these words, "appoint" and "elect," being used in the same sentence in the constitution, clearly in a manner that is interchangeable.

[Main Podcast]

Roger Parloff: I'm Roger Parloff, a Senior Editor at Lawfare, and this is the Lawfare Podcast, February 1st, 2024. We're approaching the historic oral argument at the U. S. Supreme Court in Trump v.. Anderson. That's the case over whether Donald Trump is disqualified from holding the presidency under Section 3 of the 14th Amendment, which bars certain insurrectionists from holding certain federal and state posts.

I sat down with James A. Heilpern, a senior fellow at Brigham Young University Law School. Heilpern co-authored a new article on Section 3 that was just posted online January 1st, and yet has already been cited in several Supreme Court briefs, including the merits brief of the voter challengers in Trump v.. Anderson. It addresses the disputed issue of whether Section 3 even applies to presidents, and it concludes that it does. His article uses corpus linguistics and other forms of legal research to look at how crucial phrases were used in 1788, when the original Constitution was ratified, and also in 1868, when Section 3 was ratified.

This is the Lawfare Podcast, February 1st, 2024: James A. Heilpern on Why Section 3 Reaches Presidents.

So James, the article is called, "Evidence That the President Is an Officer of the United States for Purposes of Section 3 of the 14th Amendment," and it's by you and Michael T. Worley. Tell me a little about who you are and who Michael T. Worley is.

James A. Helipern: Yeah, absolutely. So, like you said, my name is James Heilpern. I wear a lot of hats. Most relevant for this article is I'm a Senior Fellow at BYU Law School. I've been affiliated with BYU, which was my alma mater, for a number of years. I taught there full time for a couple of years back in 2017.

Roger Parloff: And for readers, that's Brigham Young University in Provo, Utah, right?

James A. Helipern: Yes, that's correct. Brigham Young University Law School. I still am there as a part-time fellow, but I also practice law for a D.C.-based law firm specializing primarily in appeals. And then I also do a little bit of litigation consulting work on the side through an organization called Corpus Legal Services.

Roger Parloff: Okay. And, and Michael T. Worley?

James A. Helipern: Michael Worley is one of my closest friends in the world. We were classmates at law school. He was a year ahead of me. And then after graduation and after I clerked, we ended up working at the same law firm. What's interesting about Michael--here's an attorney whose briefs have been cited by the Chief Justice in at least one opinion, and yet, he's one of probably only a handful of lawyers in the world that has cerebral palsy, which is the main reason that he's not joining us today, is because while he's mighty with the pen, podcasts are not his medium. But he's absolutely brilliant. He's currently working for a D.C.-based employer, and we've been friends for a long time and collaborators.

The reason that we ended up working on this article together actually dates back to 2018. He and I co authored an amicus brief in a Supreme Court case called Lucia v. SEC, which asked whether or not an administrative law judge within the SEC was a, quote unquote, "officer of the United States." And together we assembled sort of a wealth of linguistic and historical sources to demonstrate that the original public meaning of this phrase, "officers of the United States" was capacious enough and broad enough to include an ALJ.

And as it happens, in that same article, we made a couple of findings. One of which was that the full phrase, "officer of the United States" at the time of the founding was not a legal term of art. It just was a way of, of distinguishing the officers of the federal government from, say, the officers of Virginia or South Carolina.

Roger Parloff: I think I should probably orient the reader a little bit to why we care so much about this question of what does "officer of the United States" mean. And the reason we're asking about it, of course, is that this is also a term used in Section 3 of the 14th Amendment, which is the Disqualification Clause that is currently before the Supreme Court in terms of whether Donald Trump is disqualified to be president.

And just to try to orient the reader in case you're not already up on these things, Section 3, I'm going to simplify, does not ban all insurrectionists from all offices. It bars a category of insurrectionists from certain categories of offices. The crucial category is--it says that it is people who swore an oath to uphold, to support the Constitution in the process of becoming, quote, "a member of Congress, an officer of the United States, a member of any state legislature or an executive or judicial officer of the state." Obviously the only one of those that might include Donald Trump is "officer of the United States." And so that's why all of this constitutional research about what is the meaning of that phrase is so important right now. And, and that's the part that your article focuses on. You don't focus on, did he engage in insurrection? Was January 6th an insurrection?

James A. Helipern: Yeah. In this brief that Michael Worley and I co-authored back in 2018 in Lucia,  we were talking about just this, the phrase "officer of the United States," specifically with respect to the original Constitution of 1788. And we had made a couple of findings that the term was not a term of art. It was just a way of expressing federal officers. And we also, in the course of our linguistic study, had found a couple of references to the president being an officer of the United States. And then we didn't really think anything of it. The real irony of all of this is that as an aspiring academic, I was given the advice when I started teaching it at BYU that if I wanted to talk, to write about constitutional law, I should find a nice, safe, boring topic that that no one had strong feelings about.

And so, this amicus brief that I wrote in Lucia seemed like the perfect springboard for what has since been, I guess, a five- or six-year writing project where I've written a number of articles about what constitutes an officer of the United States. And the sort of the joy of it is that this was uncontroversial. These were all sort of intellectual, cerebral, nerdy con law stuff that nobody cared about. And, well, over the course of six years, things change. And Michael and I sort of reunited to sort of write this article in part because there were so few people writing on the topic that had thought about the topic, and we'd been thinking about this for a long time. And so we thought, "Well, if anyone is going to sort of dive in to this subject matter, it might as well be us."

Roger Parloff: Right. In fact, let me flash back just a little bit with you. Brigham Young University in Provo, it has a specialty and you have a specialty. Can you describe what this thing called "corpus linguistics" is?

James A. Helipern: Yeah, so corpus linguistics is sort of an emerging legal methodology that seeks to use what we might call "big data" to produce empirical evidence about the meaning of words or phrases. So much of what we do as lawyers is arguing about the meaning of a word. And traditionally, as a profession, we've relied on dictionaries, we've utilized etymology. We try to break down words into their component parts and look at prefixes and suffixes. And legal scholars for a long time have been cognizant of the fact that all of these tools are flawed.

And so, starting about 10 years ago, certain scholars at BYU, most notably Justice Tom Lee--who was previously a BYU law professor, then went on to the Utah Supreme Court and is now back on the faculty of BYU--and an affiliated scholar named Stephen Mouritsen began utilizing these large databases that had been designed by linguists for linguistic research, or historical linguistic research, to produce sometimes hundreds or thousands of examples of how real people used disputed words and phrases at a given time within a given community. This was fairly controversial when Justice Lee wrote the first judicial opinion using corpus linguistics back in 2011. But since then, it's been fairly widely adopted. You now have judicial opinions from, I think it's nine of the U. S. Circuit Courts of Appeals that have utilized these linguistic tools. You have justices across the sort of the jurisprudential spectrum on the Supreme Court that have looked at these: Justice Breyer and and Justice Ginsburg on the left, and then Justice Thomas and Justice Alito on the right. And BYU is kind of the flagship institution for the use of these linguistic tools in the law. And that's actually what I was I was hired to do when I first came to BYU as a fellow, is I was hired to help run what was called the Law and Corpus Linguistics Project alongside Justice Lee.

Roger Parloff: Okay. And one last sort of flashback question before we begin to get to the gist of the matter. You clerked for Edith Clement, on the Fifth Circuit. Is that right?

James A. Helipern: I did, yes.

Roger Parloff: And I think it's safe to say she's not usually considered a raving liberal. She was appointed by George W. Bush. And, and similarly, BYU, I mean, it is a campus, but it doesn't have the same political reputation as Hampshire College or Oberlin, for instance. Is it fair to say you're sort of toward the conservative side of the spectrum?

James A. Helipern: Yeah. Sometimes I doubt whether the words "conservative" and "liberal" have any real meaning anymore. But I certainly consider myself to be conservative. I consider myself to be right of center. I'm a member of the Federalist Society. I've worked for five judges over the course of my career, the two that you mentioned, and then I interned for three more while I was in law school. All five of them would be considered conservative. I consider myself to be a textualist and an originalist.

And, in fact, I will say that in approaching this article, it was really important to me that the Court get this question right, regardless of where that leads. If you go back to, I think it was right before Thanksgiving, I actually had a fairly robust debate with my brother-in-law, who's a good Democrat, about this very question, about whether or not the president is an officer of the United States. And at the time, before really delving into the originalist materials in the constitutional history, I just said to him that this was a tough question, that this was a question that I thought that the Court was really going to have to wrestle with, and that it really needed to do a deep dive on the originalist material, because I didn't think it was an easy question.

Roger Parloff: Now your article came out January 1st, I think. Well, I say came out. A draft was posted on this social science research network. And it's already been cited in At least two briefs, Supreme Court briefs in the Anderson v. Trump case, the key case before the Supreme Court. And of course, we're recording this before most of the amicus briefs have been filed supporting the voter challengers. But you are cited already in the merits brief of the voter challengers. So that is pretty quick impact that has already been achieved. So, the key professors who have really been driving the debate in the other direction, saying that the president is not an officer of the United States, have been Seth Barrett Tillman of Maynooth University in Ireland and Josh Blackman of I think South Texas?

James A. Helipern: South Texas College of Law. That's right.

Roger Parloff: Okay. And you are very familiar with their work. And after doing your research, your paper says you disagree with their conclusion for four reasons. And we're not going to have time to discuss them all, your article is 87 pages. But why don't you just summarize what are the four reasons? And then maybe we can delve into a couple of them.

James A. Helipern: Yeah, absolutely. So I think Josh Blackman and Seth Tillman, who, I want to just emphasize, I think that they're careful scholars. I don't know Seth personally, but I consider Josh a friend. And they've been thinking about officers and offices for a long time. But when we really dove into the historical evidence michael Worley and I did end up coming out on the other side.

One of the main reasons is over and over again in their articles, they emphasize that the reason that the president cannot be an officer of the United States is because in order to accept that he's an officer, you would have to reject the rigid distinction between appointments and elections. The Constitution says that the president is elected and it oftentimes speaks of officers being appointed. And so, in order to say that the president is in office, you have to reject this distinction. And one of the findings in our paper is that, yeah, there's good reason to reject that distinction, because at the time of the founding, when the Constitution was originally drafted and ratified, the words "elect" and "appoint" were largely used interchangeably. At least to the extent that "appointment" was considered a more capacious word, a broader word, and "elect" was one mode of appointment. And we demonstrate this, and we can talk about this moving forward. We found that this sort of linguistic phenomenon, of "appoint" and "elect" being used interchangeably was ubiquitous at the time of the founding, including in the Constitution itself.

Roger Parloff: Let's explore that right now, because it really is one of the crucial findings. Give the example from--because you find that this is true both in formal context and in colloquial context.

James A. Helipern: That's right.

Roger Parloff: And one of them is in the Constitution itself.

James A. Helipern: Yes. So, in the Constitution itself, there's another clause that talks about the Electors Clause. And I don't have the exact language in front of me.

Roger Parloff: I have that language. It's: "Each State shall appoint in such Manner as the Legislature thereof may direct a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress." And of course, this is the basis of the Electoral College.

James A. Helipern: That's right. And if you go back and you look at the presidential election of 1788, and 1789 when George Washington was elected the first president--today we are accustomed to going to the polling place and we get a ballot and it says, "Who do you vote for for president?" And this is actually somewhat of a legal fiction. We, of course, as a people, as a general body, we don't actually elect the President of the United States. The Electoral College does that. And whereas today, the selection of electors is all done behind the scenes after we have this popular election. And states send electors or, appoint electors, that will vote in accordance to the popular election in that state. That was not the case in that first election, and we actually have provided evidence that in the majority of the states, the electors were either chosen by popular vote where a guy would say, "Hey. I'm running to be an elector. Vote for me, Roger." And those names would be the ones on the ballot. Do I want to vote for Roger or John or Frank? And then those people would in turn go and vote for president.

Or, you see the legislatures appointing these people directly. And we have to remember that when a legislature quote unquote, "appoints," how does that process work? Well, they're voting by ballot. It is in itself an election. And so you, ye various state legislatures holding elections and voting by ballot to choose the electors. And yet the Constitution refers to these electors being appointed.

So is it inappropriate for the state legislature to say the mode of election that we choose is by popular vote? Is it wrong for a general assembly to choose to appoint electors by ballot? Obviously not. And so, if electors can be appointed through elections, then certainly we see nothing wrong with the President of the United States being appointed by the election of the Electoral College.

Roger Parloff: Right. You give another remarkable example involving James Madison. Tell us about that example.

James A. Helipern: So I don't have the exact language in front of me. I can give you some context and then maybe you could read it.

Roger Parloff: Sure.

James A. Helipern: In the Constitutional Convention there's some remarkable language by James Madison where he's talking about the debate over how are we going to choose our chief executive. And he says the main question--I'm paraphrasing here--but, he says the main question is whether or not we want to appoint the president by popular vote of the people at large, or whether or not we want to appoint him through other means, through electors. And so again, we see James Madison in this quote using the word "appointment" when today, in our modern parlance, when we do have this more rigid distinction between "election" and "appointment," we would probably say "elect."

Roger Parloff: Right. And the exact sentence, and I'm taking it from your article--and this is in 1787. And so remember, this is--I think the Constitution is drafted in 1787. It's ratified in 1788. He says, "The option before us then lay between an appointment by electors chosen by the people and an immediate appointment by the people." So yes, the choice between the electoral college and a and a direct vote. And in both cases he uses the word "appointment." Then you've found some more examples by some people We consider founding fathers, which, which struck me as very powerful. Can you recall some of those?

James A. Helipern: So yes, absolutely. In sort of more colloquial speech, we see a number of founding fathers who are using the words "appoint" and "elect" interchangeably. So for example, we have two letters written by George Washington, where he is discussing about the need for the Articles of Confederation Congress to appoint or select an individual to serve as the Minister of War of the United States. And in one letter, he talks about a Minister of War being elected. And in the other letter, he talks about the Minister of War being appointed. Same position same mechanism, and yet, he's using two different words. Similarly, we have John Adams, who was appointed by the Continental Congress to negotiate peace with Great Britain at the end of the Revolutionary War. And in one letter, he refers to himself being elected Minister Plenipotentiary. And in another letter, he refers to himself being appointed Minister Plenipotentiary. Again, same position, same mechanism, and yet, he uses two different words.

Now, occasionally Blackman and Tillman have attempted to sort of distance themselves from these more colloquial examples by saying, "Well, those are colloquial speech as opposed to sort of a formal document like the Constitution." But, we also found a number of explicitly formal documents, legal documents, that are using the words "elect" and "appoint" interchangeably. So, for example, in the Articles of Confederation, it explicitly gives the Continental Congress the authority to appoint officers of the government. And yet, When you look at the journals of the Continental Congress, as they are going about doing this, and they're appointing ambassadors, or secretaries, or generals, etc, oftentimes, and we detail a number of these, they use the word "elect." The Continental Congress elected so and so to be Minister of Foreign Affairs, for example. And you also see this analog in state constitutions, which were, of course, often served as inspiration for the, the federal constitution when it was written.

And at the time when all of these state constitutions were drafted in 1775 and 1776, the governors and judges were almost universally chosen by the General Assembly. Today we think of electing governors. We think of,--n a lot of states, we elect our judges. But that was not the case during the founding generation. Most of that authority was granted to the state legislatures. And yet, in the state constitutions, we see repeatedly when they are talking about the legislature appointing a governor or appointing a judge, they oftentimes will use the phrase, "We're going to appoint him by ballot." They were of course voting. But sometimes they also will use the word "elect" and they will elect--they, as a general assembly--will elect the governor. And in certain states, we even see these words, "appoint" and "elect," being used in the same sentence of the Constitution, clearly in a manner that is interchangeable.

Roger Parloff: Yeah. Now, before we leave this important fact that in the late 18th century, appointment and election were often used interchangeably. Let's go back to the Appointments Clause itself, which has a special place in the theories of Blackman and Tillman. This is sort of the defining clause for them, that they believe shows that the president is not an officer of the United States. And it says, "The president shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, dot, dot, dot." And they say, "See, to be an officer of the United States, you have to be appointed by the president." But the words that immediately come after that are "appoint all other officers of the United States whose appointments are not herein otherwise provided for." And in reading your article, I discovered--and I'd been sort of trying to keep up on this issue for 3 years--some things I didn't know, I hadn't seen before. And I ended up writing a whole article based on these things you mentioned in passing, which is that Scalia had written a 2014 concurrence. The concurrence begins--and that's sort of important. This is not a footnote. This is the first words, which is where you lay out where everything starts from. And he says, "Except where the Constitution or a valid federal law provides otherwise, all officers of the United States must be appointed by the president, etc."

James A. Helipern: Right. And so, the seemingly clear implication of these words is that there are, in fact, other positions identified in the Constitution that are not appointed by the president. But are nonetheless officers of the United States. Tillman and Blackman, reading these words, were a little confused by the implication of this sentence. And so, you have to admire the tenacity and the chutzpah of Seth Tillman here. He decides that he's going to write a personal letter to Justice Scalia. And and he asks Justice Scalia, "What did you mean by this phrase in your concurring opinion? And in a shocking turn of events, Justice Scalia actually writes him back.

Roger Parloff: And I have the exact words of his note if you don't have it in front of you.

James A. Helipern: Yeah, why don't you go ahead and read it.

Roger Parloff: He says, "I meant exactly what I wrote. The manner by which the president and vice president hold their offices is, quote, 'provided otherwise,' unquote, by the Constitution, as is the manner by which the speaker of the House and the president pro tempore of the Senate hold theirs.

James A. Helipern: And to Blackman and Tillman's credit, they don't attempt to hide the ball on this one. They actually, in a law review article that they published a few years ago, they actually discussed this exchange with Justice Scalia. And to their great scholarly integrity, they actually included in their article, a scanned photo of the actual letter that Tillman received from Justice Scalia.

And then they proceed to explain why they think that Scalia was incorrect.

Roger Parloff: They give two reasons. One is a memo he'd written 40 years earlier when he was in the Department of Justice, head of the Office of Legal Counsel, which cuts the other way. But then, the other goes back to this word "appointed," and they ask rhetorically, "Did Scalia think presidents were appointed?" and they ask it pointedly, like the notion is absurd. And of course, in your article, you now address that.

James A. Helipern: That's right. In modern parlance, to say that we have an appointed president, in modern parlance, that does sound absurd. But to the founding generation, it clearly was not. They're using the words "elect" and "appoint" interchangeably all the time. And so, it would be very natural to say that the president was appointed. And in fact, George Washington, on a number of occasions, talked of himself being appointed to the presidency. And we detail a number of his speeches in our article in which he says that he was appointed to the presidency.

I'll also just mention on this other point, Blackman and Tillman, they favor the 1970s version of Justice Scalia. But, I think it's important to emphasize that at the time that Justice Scalia wrote that memo, he was working for the Office of Legal Counsel, the OLC, and the OLC's job is-- he had a client. His client was the federal government, and his job was to justify whatever the president wanted to do. That's what the OLC does. I've written two articles that have disputed, taking great issue with OLC opinions. So I don't even necessarily think because Justice Scalia was writing for a client, which was the federal government, I don't necessarily think that those views reflect his own views.

And even if they did, in any field of academic inquiry, if you see one paper written 40 years [later] that contradicts another paper, wouldn't you naturally assume that the latter paper, that was written 40 years later, with the benefit of four extra decades of scholarly research and thinking about the issue reflects an evolution in the thought of the scholar? And I think that that is potentially what we're seeing with Justice Scalia as well: As he spends more time interacting with the Constitution and investigating the Constitution, he becomes persuaded that he is himself wrong.

Roger Parloff: That sounds convincing to me.

Now there's one other--we mentioned in the beginning you had sources of disagreement with--at least--with the Blackman and Tillman conclusions. We don't have too much time. But, very, very briefly one of the others had to do with, I believe, corpus linguistics evidence about the phrase, how the phrase, "officer of the United States" was used, both at the founding in 1788 and 80 years later in 1868 when Section 3 was ratified. Can you just, very broad brush, discuss that?

James A. Helipern: Yeah. So, President Trump, in a number of his briefs submitted to the Colorado Supreme Court and also to the United States Supreme Court, he says that the phrase, "officer of the United States" is a term of art. And he's of course, not alone. Steve Calabresi has said this. Michael Mukasey has said this, specifically saying it's a term of art, which means that the term means more than the sum of its parts. Now, Blackmun and Tillman, actually citing Michael Worley and I in our amicus brief, they acknowledge that at the time of the founding, it was not a term of art. And yet, they continue to act or, or imply--or, while they say it's not a term of art, at least our reading of their argument is that they continue to treat it as if the full phrase means more than the sum of its parts. And you see this in the fact that often times when evidence is produced that says, "The president is an officer," or "It's an officer of the government," or "It's a constitutional officer," or "a national officer," they sort of dismiss this evidence, and they say, "Ah, but it doesn't say that they're an officer of the United States."

But if the phrase, "officer of the United States" is not a term of art, then that is exactly what we would expect. We would expect individuals and, and government institutions to use close synonyms when they're just speaking extemporaneously or even in official documents because there's nothing magic or special about the full phrase, "officer of the United States," other than that it distinguishes a federal officer from, say, a state one or a private officer. And so, we think that by demonstrating that officer" of the United States" is not a term of art, it dramatically expands the universe of evidence that the president is and does in fact fall under this umbrella term, "officer of the United States," and falls under the gambit of Section 3 of the 14th Amendment. Because all of a sudden, anytime you see in the debates over the 14th Amendment, congressmen or senators referring to the president as a "national officer," or a "United States officer," or a "federal officer," or just "officer," that becomes evidence that he was also an "officer of the United States" because he's an officer, and who else could he be an officer of other than of the United States?

Roger Parloff: Right. Now, you posted your article on January 1st of this year. And Tillman and Blackman wrote a response, a criticism, on January 4th, and it was entitled, "A New, Flawed, Rushed Article in the Section 3 Debate." I think you can find it on Reason, or probably the Volokh section of Reason, V-O-L-O-K-H. Can you discuss their criticisms and any changes you may have made as a result?

James A. Helipern: Sure, yeah. They spent a long time discussing they identified a typo that we had in our initial draft. We had identified in our article, in early statute that was passed by Congress that explicitly identifies the president and the vice president as officers of the United States. And in the footnotes our citation was right, but we accidentally said that it was the the Postal Act of 1792 when it was actually the Postal Act of 1799. Typos creep into early drafts all the time and this is one of the reasons we say on every single page of our article, "Draft comments and suggestions welcomed and encouraged." So they spent a long time harping on that.

Roger Parloff: And then they also criticize, as you mentioned, you had said that they implied that the "officer of the United States" was a term of art and they took great umbrage to that.

James A. Helipern: Yeah, and we do identify the fact; even in our original draft, we said that they have said that it's not a term of art, but they implied it. And they took great umbrage with that.

Again, I think any fair reading of Blackman and Tillman's own words would say that they view the whole phrase as more than the sum of its parts. And that's just one of the scholarly disagreements that we have. And we don't think that the historical record supports the conclusion that the phrase "officers of the United States" is more than the sum of its parts.

Roger Parloff: And I'll just say that when I read their criticism, it was the first time I realized, I had always assumed that they took the position that it was a term of art. And actually, after they wrote that criticism of you on January 9th, they submitted their amicus brief. in the Trump v. Anderson case. And I'll just read a sentence: The phrase, "office under the United States" was used in the Articles of Confederation in the constitution. Here, the framers employed a, quote, "employed a term of art, obviously transplanted from another legal source. And it brings the old soil with it" unquote, quoting a Supreme Court ruling. So yes, it's the Supreme Court ruling that uses the term, "term of art," but, you're quoting the Supreme Court ruling. And it does sort of imply that that's your opinion. I'm glad we've clarified it. That isn't their opinion, but, I had been confused as well. Anyway, I really appreciate your coming on the podcast. I think we're going to have to leave it there. But thank you so much, James Heilpern, and please thank your co-author, Michael Worley as well.

James A. Helipern: Absolutely. Thank you so much, Roger, for having me on. It's been fun.

Roger Parloff: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad-free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts.

Look out for our other podcasts, including Rational Security, Chatter, Allies, and The Aftermath, our latest Lawfare Presents podcast series on the government's response to January 6th. Check out our written work at The podcast is edited by Jen Patja, and your audio engineer this episode was Noam Osband of Goat Rodeo. Our music is performed by Sophia Yan. As always, thank you for listening.

Roger Parloff is a journalist based in Washington, D.C. In recent years, he has regularly contributed to Yahoo Finance and Air Mail News, and has also been published in The New York Times, ProPublica, New York, and For 12 years, he was the main legal correspondent at Fortune Magazine. He is an attorney who no longer practices. He is a senior editor at Lawfare.
James Heilpern is counsel at Schaerr Jaffe LLP where he specializes in complex litigation and corpus linguistics,
Jen Patja is the editor and producer of The Lawfare Podcast and Rational Security. She currently serves as the Co-Executive Director of Virginia Civics, a nonprofit organization that empowers the next generation of leaders in Virginia by promoting constitutional literacy, critical thinking, and civic engagement. She is the former Deputy Director of the Robert H. Smith Center for the Constitution at James Madison's Montpelier and has been a freelance editor for over 20 years.

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