emoluments clause

The Congressional Research Service Has Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President

CRS has relied on Tillman’s Scholarship about who holds an “Office . . . under” the United States

|The Volokh Conspiracy |

[This post is co-authored with Seth Barrett Tillman]

The Foreign Emoluments Clause provides that "no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Since 2017, plaintiffs in three lawsuits have argued that President Trump is violating this provision. Does the phrase "Office . . . under" the United States apply to the President? In a series of amicus briefs, filed along with the Judicial Education Project, we contend that this phrase is limited to appointed officials in all three branches of government. Therefore, the elected President is not restricted by this provision.

In 2009, the Office of Legal Counsel (OLC) stated, in a conclusory fashion, that the Foreign Emoluments Clause "surely" applies to the President. Three years later, the Congressional Research Service ("CRS") reached a similar conclusion: "The President and all federal officials are restricted by the" Foreign Emoluments Clause. To date, OLC has not revisited this position. (Though the Department of Justice has cast some doubt on the 2009 conclusion, stating that it was reached "without discussion.") CRS, however, has altered its position. 

In 2016, CRS hedged a bit. CRS stated that the Foreign Emoluments Clause "might technically apply to the President." This change was significant, and warrants praise. CRS acknowledged that this issue may not be as simple and straightforward as once thought. And we attribute that shift to Tillman's scholarship in this area. 

More recently, CRS has explained its revised position. On September 25, 2019, the House Subcommittee on Economic Development, Public Buildings, and Emergency Management held a hearing that concerned the Foreign Emoluments Clause. (We submitted a joint statement for that hearing, which we intend to blog about in a future  post.) Michael A. Foster, a legislative attorney for CRS, submitted a statement. Only seven years earlier, CRS stated, without any analysis, that the President was subject to the Foreign Emoluments Clause. Now, CRS devoted nearly three full pages of analysis, with two dozen footnotes, to the "important threshold issue" about who "is subject to" the Foreign Emoluments Clause. The statement referenced the "significant academic debate about whether Office of Legal Counsel's conclusion comports with the original public meaning of the Foreign Emoluments Clause."

Foster's subcommittee statement cited Tillman's scholarship several times. First, CRS cites Tillman's textualist taxonomy, in which "the Foreign Emoluments Clause does not apply to elected officials such as the President, but only to certain appointed federal officers." (We discussed that taxonomy on the Volokh Conspiracy in 2017.) Second, beyond Tillman's "textual and structural arguments," CRS also cited "Founding-era historical evidence" raised by in our amicus briefs:

To support the view that the Foreign Emoluments Clause does not apply to the President, academics have observed that, among other things: (1) a 1792 list produced by Alexander Hamilton of "every person holding any civil office or employment under the United States" did not include elected officials such as the President and Vice President; (2) George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador while President without seeking congressional approval; and (3) Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking congressional approval.

Without a doubt, CRS also cited evidence and arguments that the Plaintiffs have relied upon which supports the contrary view. CRS, however, does not adopt one side of this debate over the other; rather, it flags legitimate arguments which exist on both sides of the issue. In doing so, CRS has now cast doubt on the Office of Legal Counsel's 2009 conclusion that the Foreign Emoluments Clause "surely" applies to the President. 

In a subsequent post, we will discuss how the Department of Justice Civil Division has taken a position  in recent briefs that is in tension with the 2009 OLC Opinion.

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  1. My view: Anything that makes it legal for President Trump (and all future presidents) to accept what-used-to-be-seen-as-bribes-but-now-is-totally-kosher-“gifts” without limit is fine with me. The main problem with our government is that there is not enough swampy and unethical behavior, so any change in policy that encourages this sleazy behavior can only result in good results.

    1. …can only wind up with good results.
      [As long as I am being snarky: Thank God there continues to be no Edit button at the new and dis-improved VC website.]

    2. (2) George Washington accepted gifts from the Marquis de Lafayette and the French Ambassador while President without seeking congressional approval; and (3) Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government, without seeking congressional approval.

      The problem is that in the era closest to the adoption of the constitution, such gifts were not considered bribes.

      1. Lafayette wouldn’t fall under the clause anyway and Jefferson tacitly acknowledged that he shouldn’t have accepted the bust, nor any other substantial gift.

        1. “Jefferson tacitly acknowledged that he shouldn’t have accepted the bust, nor any other substantial gift.”

          Cite required.

  2. The “but those other guys make good arguments, too” stance will certainly carry equal weight along with “the emoluments clause does not apply to the president”, so nobody should take the latter as meaning the CRS has taken a position here. Or something.

    To be clear, the Unitary Executive Theory still only applies to republican presidents, right? We can still screech about tyranny and the like later?

    Astounding.

    1. “the Unitary Executive Theory still only applies to republican presidents,”

      If you state your understanding of the theory, maybe we can answer the question.

    2. No, unitary executive applies to all presidents.

      1. As our electorate improves in predictable ways — and becomes increasingly less hospitable to Republican candidates in national elections, to a degree not even voter suppression and structural amplification of yahoo votes can overcome — I expect clingers’ view of the unitary executive to evolve.

  3. Does it even matter who it applies to? I seriously doubt that the founders intended for elected officials to abandon their private lives upon winning election and start from scratch again once their terms are up in some weird political psuedoslavery system. Absolutely absurd to suggest that staying at a Trump hotel gives foreign officials any more or less sway than stroking his ego.

    1. Yes, placing your business holdings in a blind trust is absolutely the same thing as “pseudoslavery”…

      1. Placing your business holdings in a blind trust on assuming the Presidency is a relatively recent development, probably a result of professional politicians whose wealth consists of savings and investments, not actively run companies. (Which tend to dramatically lose value if you do something like that.)

        Nobody thought ordinary business earnings were “emoluments” until they started groping around for an excuse to think Trump a criminal.

        1. Why hasn’t anyone been looking into all the emoluments that Joe Biden and his son received!? They were so crooked they needed to solicit a house as an emolument from Ukraine just so they could have a place to put all their Ukrainian emoluments. Why isn’t anyone looking into this?

          1. As far as I know, Hunter Biden was not a government official, elected or not, so his case is irrelevant. Regarding Joe Biden, it would help if you specified what emoluments he received?

        2. The statute on blind trusts does not apply to the president and vice president.

          “Nobody thought ordinary business earnings were “emoluments” until they started groping around for an excuse to think Trump a criminal.”

          Nobody even remembered there were “emolument” clauses in the Constitution until Trump. When he is gone, everyone will forget again.

          1. Bob,
            True enough, at least until a similarly-situated businessman/woman (be it Dem or Rep) is again elected president. For better or worse, you just don’t face these sorts of issues if you’ve been a professional politician.

            It’s why prior Rep and Dem presidents did not face this sort of scrutiny . . . nor should they have. (Including Bush, who owned part of a MLB team *before* being president.)

      2. So if I want to seek elected office, I must undertake an extensive legal cost to temporarily restructure everything in my life, potentially billions of dollars worth of assets.

        How about no?

        1. “No,” is fine. “No,” means you are disqualified for an office you apparently think is beneath you anyway. And you have no right to an elected office. So don’t run. You are better off, and the public is far better off.

    2. “founders intended for elected officials to abandon their private lives upon winning election ”

      Washington, Jefferson, Madison all had working farms [plantations] while president.

    3. “Absolutely absurd to suggest that staying at a Trump hotel gives foreign officials any more or less sway than stroking his ego.”

      If you don’t think others engage in such conduct believing it would work, or that Pres. Trump would not be swayed by financially flattery, you are as daft as your generally comments indicate.

  4. If only there was someone on the Volokh Conspiracy who was interested in the mischief rule…

  5. This is great news for members of Congress who, also being elected, will no longer have to restrict their emoluments to domestic sources.

  6. Even if there WAS a good intellectual case for this, you’ve got to realize that the timing stinks on ice, right?

    And it’s so pointless, because nothing Trump is accused of meets the pre-Trump understanding of an emolument.

    1. It meets my pre-Trump understanding, which was grounded in the notion that bribery in high office is almost always disguised as business transactions.

      1. But you still have to establish that the business transaction really was a bribe. By showing, for instance, that the ‘customer’ paid for the product, but didn’t take delivery. Or paid above the going rate.

        If a diplomat stays at a Trump hotel, and pay the same for the room as anybody else would have paid, it IS an ordinary business transaction. Just as if the British ambassador bought a ham from Washington’s farm, but paid the same for it as anybody else would have.

        You can’t just treat the mere existence of the transaction as evidence of a bribe, when there are non-criminal explanations available.

        1. Brett, the emoluments clause is there in addition to laws against bribery, not as a re-statement of those laws. The emoluments clause demands that certain office holders refrain from certain transactions, even when there are non-criminal explanations available. Why? Because there are also criminal explanations available.

          Dignity and legitimacy of office under the constitution depend on giving no cause for any of those criminal explanations to be bruited. That is a different, and intentionally more demanding, standard than the one defended by laws against bribery.

  7. But since a Secretary of State is appointed, not elected, the charitable fund they might have created and run (and from which they receive benefits like travel, banquets, positive public exposure, etc.) receiving contributions from a foreign government might be considered foreign emoluments, right?

    1. Yeah, if Hillary ran the Clinton Foundation while SecState, that would be bad.

      1. Oh, you think it ceases to be bad if she merely plans on resuming running it after she leaves office? Emoluments aren’t emoluments if you bank them, and don’t touch them until you leave the office?

        Gifts aren’t emoluments, and ordinary business earnings are?

        1. “Emoluments aren’t emoluments if you bank them, and don’t touch them until you leave the office?”

          Of course her husband gave foreign speeches while she was in office.

          Emoluments aren’t emoluments if you launder them thru a family member.

          1. That’s certainly Biden’s position on the matter.

        2. Your standards seem to be shifting mightily depending on whether we’re talking about Hillary or Trump.

          Not to mention that no conflict of interest compliance requires speculation about what you will be controlling after you leave the job.

          1. “Your standards seem to be shifting mightily depending on whether we’re talking about Hillary or Trump.”

            Not at all. They are/were both acting technically legal.

            You are the one with one standard for Clinton and one for Trump.

            1. Technically legal. Still a double standard, based on how you judge Hillary’s actions and how you judge Trump’s.

              I’ve made why I distinguish between the two of them quite clear elsewhere in the thread.
              Not that I think the Clintons are in any where squeeky clean, but the right has so far turned up little of substance with respect to the Clinton Foundation, and not for lack of trying.

              The Trump organization, on the other hand…(Plus, of course the differing levels of control Trump versus Hillary exercised while they were active in their government positions.)

              1. The standard Brett propose holding Hillary to is well above what anyone is talking about with respect to Trump.

                1. No, it’s not. Trump is running businesses, he gets money for providing goods and services. As long as the goods and services are provided, and the money received for them is at the going rate, there’s nothing particularly suspect about it. You can’t just define ordinary commerce to be corruption.

                  Hillary was running a “charity”, which is to say that donations were gifts. Gifts to an office holder are inherently suspect in a way that commercial transactions aren’t.

                  That the number and amount of the donations imploded the moment she lost the election is pretty indicative of the fact the donors weren’t donating the money for charitable purposes. Her losing an election certainly shouldn’t make the charity less attractive as a charity.

                  1. You can’t just define ordinary commerce to be corruption.

                    Right. But you can define ordinary commerce as a violation of the emoluments clause, in cases (however innocent) where that commerce could give rise to imputations of corruption.

                    The emoluments clause is not about criminal corruption. It is about standards for keeping charges of criminal corruption—including mistaken charges—at a safe preventive distance from government legitimacy.

                    1. I’ve got bad news for you re: Trump’s rates:
                      https://www.citizensforethics.org/4th-of-july-trump-hotel-rates-skyrocket/

                      Your circumstantial case that demand was related to the position of the person in question would seem to apply to the many, many foreign government officials who are suddenly staying at the Trump hotels.

                      But the main root is that your distinction between a charity and a business makes no sense legally or morally. You’re basically arguing all gifts to charity are more suspect than all business transactions.

                      That’s some weak-ass pretext to be angry at Hillary and exonerate Trump.

      2. “if Hillary ran the Clinton Foundation while SecState, that would be bad.”

        Trump no longer officially runs the Trump Organization either.

        So we all good now I guess.

        1. Officially doing a lot of work there.

          I don’t think you want to compare the level of involvement of Trump with the Trump organization versus Clinton and the Clinton foundation.

          1. “I don’t think you want to compare the level of involvement of Trump with the Trump organization versus Clinton and the Clinton foundation.”

            Her daughter and a group of Clinton retainers ran it. I’m sure they never spoke to her about anything.

            1. Clinton Foundation :

              • Given the highest possible rating (four-star) by Charity Navigator, who scoring the CF 93.91 of 100 for finances, accountability & transparency

              • American Institute of Philanthropy’s CharityWatch gives the CF an “A” rating for efficiency, finding the Clinton Foundation spent 88 percent of its cash budget on programs, compared to 12 percent on overhead, such as fundraising, management and expenses.

              • Some 34,997 organizations have provided enough to get one of GuideStar’s four “transparency seals”; of those, 1,061 have earned the highest level, Platinum. The Clinton Foundation is one.

              • The Clinton Foundation brokered a deal to get medicine to 11-12 million people in Africa with AIDS. Without question, the Foundation saved millions of lives.

              • They’ve also gotten malaria medicine to tens of thousands of people in the Phillipines, opened healthcare clinics in India, airlifted Ebola medicine to outbreaks, etc

              Trump Foundation :

              • Shut down as a fraud

              • Wasn’t even legally registered in the state it operated

              • Board almost exclusively immediately family members, sometimes going years without meeting

              • One exception was Alan Weisselberg, the Trump Organization CFO. He was listed as the Foundation Treasurer for over a decade but never attended a meeting. While testifying under oath, he said no one ever told him he was on the board

              • Used tax-exempt funds to purchase an autographed Tim Tebow helmet and a giant oil paintings of Donald Trump for his golf clubs

              • Used tax-exempt funds to pay costs of Trump’s for-profit businesses, such as local zoning fines

              • Used tax-exempt funds to pay little Don Jr’s seven dollar Boy Scout registration fee

              1. You and your elitist standards, mainstream best practices, and reality-based arguments are not welcome among the clingers.

              2. “The Clinton Foundation reported total revenue of $38.4 million for 2017, the fewest dollars the foundation has taken over the course of a fiscal year in more than a decade — and a sharp decline from the $249 million raised during Clinton’s first year as secretary of state.” https://www.opensecrets.org/news/2018/12/clinton-foundation-revenue-low/

                Just a coincidence that once she no longer has political power [or potential power], the fine charity has a major drop off.

                Coincidence.

                1. Well, take what solace you can from a dip in the Clinton Foundation’s fundraising. The charity remains impeccably run, with an exceptional degree of efficiency, accountability and transparency. Try reading the CV of each leadership team member via the link below. You’ll find accomplished professionals with strong & deep experience in philanthropy. Of course the Foundation has already accomplished many extraordinary things, such as saving millions of lives in Africa (noted above). No Clinton – Bill, Hillary, or Chelsea – receives any salary, funding, or remuneration from the Foundation.

                  Meanwhile : Trump’s foundation was run as a petty scam and looted for spare cash. Quite the difference, eh?

                  https://tinyurl.com/y3t8nd9g

                  1. It isn’t as clear cut as you make it out to be. The charity paid people well to provide services to it, those people also provided free services to the Clintons, which accordingly didn’t show up on the charity’s books.

                    Still, that donations dropped off catastrophically as soon as the Clintons were in no position to do favors for anybody is rather telling.

                    In any event, if you wanted to bribe me, you could do worse than make a donation to my favorite charity in my name; Spares me doing to, and money is fungible, after all. Granted, it actually IS a positive thing to say about somebody that they can be bribed in this way, it demonstrates they’re not total monsters. Not the sort of person who won’t care if you donate to their favorite charity, because they don’t really have one.

            2. The only issues Hillary discussed on her personal email account were yoga lessons and wedding preparations with her daughter. Any suggestion that she did anything else is conspiracy theory nonsense only supported by facts, statements of third parties, and Mrs. Clinton’s own admissions.

              1. So you’re going to assume, with zero evidence, that Hillary was secretly running the Clinton Foundation while SecState.

                This is what happens when you let policy differences define everything else in your reality.

                1. “So you’re going to assume, with zero evidence, that Hillary was secretly running the Clinton Foundation while SecState.”

                  Donald isn’t running the Trump organization either while President.

          2. You can’t be serious.
            You need to look at the payroll at Clinton Inc.
            When you do, you will find dozens of political cronies warehoused there and receiving paychecks, during the tenure of Sec Clinton. Biding their time until they could address Clinton’s wife as Madame President, and claim the position in the adminstration they were promise
            There are news accounts people getting partime consulting fees from the State Dept, and Clinton Inc, and if that was legal. Of course Clinton’s wife had nothing to do with that, only a happy coincidence.

            1. Yeah, that book didn’t fair too well once people started fact checking it.

              Even as written, your case is circumstantial, at best. There is no doubt some cross-pollination between an American international charity organization and the American diplomacy and foreign aid enterprise.

              Find the news accounts, and then maybe check subsequent fact checks of those accounts.

  8. And here we see another childish DNC semantics argument that will fail like the last all of them so far. Shocking. It’s almost like the DNC are a one-trick donkey.

  9. Is part of being a prior-lawyer humiliating yourself publicly by trying to make flimsy fantasies the truth in some desperate attempt to get something to stick to the wall? Because you could get that impression watching the DNC work.

    1. Who do you think is with the DNC here?

      1. Hardly anybody I’d imagine. Oh, are you under the impression I’m trying to attack the site? I’d call the site out if I was. Assume you are projecting a tiny little bit. We all do it. No worries.

        1. Then what are you talking about?

          1. Sarcasto,
            I don’t think you have to pay too much attention to Zo. I’m sure she/he is only repeating what the voices in her/his head are screaming.

            1. This is a vice of mine – digging into other people’s voices. And these days this blog is fertile ground.

              My dad was a psychiatrist, so at least I come by it honestly.

  10. Emoluments are fine. Obviously. All politicians come out of office with far more wealth than when they entered office. The check on politicians is always at the ballot box. If your guy or girl is using the office they hold to gain personally, only voters can be trusted to hold them accountable.
    Now, what of “Foreign”? First impression is the notion of eliminating foreign influence on a single branch, the Executive Branch, Thus the President, or Vice President. And then, the cabinet level heads that need congressional approval. Foriegn Influence that would come from Governments, directed at political office holders, in Congress through gifts, and business dealings did not warrant direct mention in the constitution. Why. Why the President, but not the Speaker of the House?
    A simple explanation is the Emoluments Clause does not include any elected persons. The Emoluments clause only address persons that are not subject to recall by the people.
    In my mind, if I am drafting this particular Constitutional guard rail attempting to address Federal govt corruption, by foreign influence, and my intent was to include the Executive and his cabinet, that’s exactly the phrase I would have used.
    The constitution through out, leaves almost all remedies to be handled by the people at the ballot box.
    Thus the conclusion the Emoluments clause covers only appointed officials is in sync with the Constitution.

  11. I think the clause does apply. But I also think that proceeds from ordinary business transactions are not emoluments within the meaning of the clause.

    As other commentators have pointed out, many previous presidents were farmers or businessmen, and farmers in particular, including some of the founding presidents, continued exporting their crops to foreign countries while president. History matters to what the clause means.

    There are limits, and government officials can’t conceal bribes by disguising them as business transactions. Transactions have to be genuine, and terms can’t be wildly off market value or noticeably favorable, which means more scrutiny is warranted than in the case of regular citizens. But nonetheless, ordinary business transactions are not emoluments within the meaning of the clause.

  12. Hillary Clinton raked in a quarter of a billion dollars in foreign money.

    1. Handwaiving that Hillary is corrupt worked great in the election, but maybe back up your accusations a bit?

  13. I’ve never been amenable to the argument that “past presidents did this, so this is okay.” None of the early presidents really lived up to the lofty ideals they fought for, to say nothing of later presidents.

    Some of the examples are crap, too. Gifts are disallowed from “any King, Prince, or foreign State”. Lafayette was none of those and it was a personal gift. The portrait was certainly intended as a gift from the state, essentially laundered through the diplomat by King Louis XVI, but the letters involved make it sound like a personal gift from the diplomat. As for Jefferson, he was a hypocritical Russophile: “I had laid it down as law for my conduct while in office, & hitherto scrupulously observed, to accept of no present beyond a book, a pamphlet, or other curiosity of minor value; as well to avoid imputations on my motives of action, as to shut out a practice susceptible of such abuse. but my particular esteem for the character of the Emperor, places his image in my mind above the scope of law.” Jackson, Van Buren, Tyler, and Lincoln clearly believed that they fell under the scope of the clause.

    That said, I don’t think Trump is violating the clause. He’s making money as a businessman, not an employee, and so far there are no revealed gifts. It could change, considering the attention given to his hotel, but it isn’t there now.

  14. Article II, section 3, last clause: “…and shall commission all the officers of the United States.”

    The President does not ‘commission’ himself. He is required by the Constitution to commission all officers of the United States. He is therefore not an officer of the United States.

    1. The foreign emoluments clause doesn’t restrict “Officers of the United States,” it restricts “Person[s] holding any Office of Profit or Trust under [the United States].” There’s a presumption that when a legal document uses different terms, the terms have different meanings.

  15. Let’s take these unsound assertions one by one.
    HAMILTON’S 1792 LIST

    The analysis by these professors repeatedly overlook several critical points about this document (“Hamilton’s list”).

    For one, the title of the list deliberately and specifically indicates that only those government positions that are “civil offices” are the subject of concern.

    That — specification “civil office” — is consistent throughout many documents associated with Hamilton’s list. A Treasury Department Circular from September 13, 1792; a letter from Hamilton to Thomas Jefferson on October 6, 1792; and a letter from Hamilton to John Adams from February 27, 1793. They all specify Hamilton’s list as one limited to “civil offices.”

    The Constitution clearly and directly specifies “civil office[s]” as appointed offices created by acts of Congress (including Senatorial consent of presidentially-appointed ambassadors, judges, and so on).

    Art. 6, Par. 2:

    “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States which shall have been created.”

    Prior to Article VI, the Constitution had already “created” the president, vice president, and members of the House and Senate. Everything else—cabinet secretaries, attorney general, revenue inspectors, etc.—would come later.

    “Civil” commonly pertains to those things “relating to the organization or internal affairs” of a state or body politic.

    The usage of “civil office” throughout the colonial, Revolutionary, and Early Republic eras of American History is consistent with the concept of appointed offices or general government employment.

    Indeed, Thomas Jefferson’s 1804 “Notes on New Orleans Characters”—in considering the reputations of certain prominent individuals in that city—frequently distinguishes between

    A) “political,”
    B) “civil,” and
    C) “military,” office.

    Jefferson’s usage underscores the notion of “civil” office as being something separate both from military and from elected (political) office.

    “Mr Bregny de Clouet, Rich ignorant Creole, more fit for Military appointment than a Civil post.”

    “Mr Boreé, (planter). he is rich & enterprising fond of agricultural improvements, however he is ignorant & destitute of any knowledge or talents relative to political or Civil government…”

    “Paul Lanusse Merchant; well acquainted with commercial business, but unfit for Political or Civil appointments.”

    Furthermore, The Federalist #55 plainly draws a line between elected (political) members of the House and Senate and appointed government positions, or “civil” offices.

    “The members of the Congress are rendered ineligible to any civil offices that may be created or of which the emoluments may be increased, during the term of their election.”

    Other late 18th Century examples in American English abound of “civil office” applying narrowly to appointed or hired positions, and often purposefully differentiated from elected positions.

    “Very few [great men] are dead and still fewer have deserted the cause;—they are all except the few who still remain in Congress either in the field, or in the civil offices of their respective states… The only remedy then is to take them out of these employments and return them to the place, where their presence is infinitely more important.”

    “Resolved—That every officer so released and giving notice as aforesaid shall until entry into actual service be allowed half pay of the Commission to which by the foregoing resolve he stands intitled; Provided always that in case of his receiving any civil office of Profit such half pay shall thenceforth cease.”

    “The inclosed resolution of Congress answers your Excellency’s letter of the 26th ulto., relating to the appointment of Col. Davies to the War Office of Virginia. You will observe that it determines his rank in the Army alone, to be the bar to his acceptance of a civil office.”

    The identification of “civil office” as a specific term in the Constitution, and not a common sense generalization, brings to light another instance of cohesion with the rest of the document.

    Art. 2, Section 4 states that “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment.”

    This squares perfectly with the accepted practice (cemented in precedent by the 1797 case of William Blount) that members of the House and Senate are not subject to impeachment.

    The instance of cohesion goes still an even greater distance. Had the term “civil office” not been specific in Art. 2, Sec. 4, then it would have read “all Officers of the United States, shall be removed from Office on Impeachment.” That, textually, could have been read to include military offices. Rendering military offices subject to congressional impeachment, besides imposing vast administrative hurdles, would have injected a disastrous political element to military discipline.

    So it is thoroughly unsurprising that Hamilton would not have included the apex, political positions in his 1792 report. And viewed in that light, it is not difficult to invalidate the great leap Tillman makes with Hamilton’s list.

    Hamilton had, it should be observed, included the salary of the president, vice president, and all congressmen in an “Estimate of Appropriations” report to the House of Representatives on November 14, 1792.

    This was just a HANDFUL OF MONTHS before his report to the Senate.

    Nowhere in the title of nor within Hamilton’s introductory preamble to that document—the “Estimate of Appropriations”—is “civil office” referenced.

    And the existence of the “Estimate of Appropriations” may be useful in explaining why the Senate might have requested a separate document including the expenses incurred by civil officers only.
    .

    1. I find the issue interesting but don’t have an informed opinion. I’m not sure exactly what you establish – that the Pres/VP are not “civil offices”? That “civil offices” are not the only kind of “office”? It appears that officials/bureaucrats in the executive branch constitute “civil officers” so I think it important to determine if the Pres/VP are included there. You suggest they are not and/or were reasonably excluded from that particular list. So the question is whether they are nonetheless considered “office[s] of profit or trust” under the foreign emoluments clause. You may be right that the Hamilton letter isn’t strong evidence, but I’m not sure it’s nothing.

      Let us continue the quote you began, Article I, Section 6, Clause 2:

      “…or the emoluments whereof shall have been increased during such time: and no person holding any office under the United States, shall be a member of either House during his continuance in office.”

      A distinction appears to be made between elected (congressional) office and “any office.”

      1. The Blackman/Tillman analysis would have it that “Office of Honor,” “Office of Trust,” “Office of Profit,” “Public Trust” and their various derivations are a stable and coherent system of meaning applying variously to subsets of elected and appointed positions in the government.

        That analysis does not stand up, because those terms get shuffled around, sometimes capitalized, sometimes not capitalized, throughout the document. On top of that, there are documents from Founding Fathers like John Adams, Hamilton, and Washington all using the terms in ways that utterly disagree with the Blackman/Tillman analysis.

        “Civil office” on the other hand is a far more coherent taxonomic term that is used to apply to appointed offices — all the architecture of federal civilian government that could only be created once the Constitution was ratified and a duly elected Congress empowered to do so.

        “Civil office” would not apply to the president or vice president, nor to members of the House or Senate, because these are A) political offices filled by elected individuals and B) all conceptually created in the pre-ratified Constitution.

        Seen in that light, Hamilton’s list provides no evidence that the president or vice president are “civil offices.”

        1. But a conclusion that the president and VP are not civil offices would seem helpful to Tillman’s argument, given the certain application of the foreign emoluments clause to civil officers who comprise the rest of the executive branch. Maybe it’s an otherwise obvious conclusion and doesn’t foreclose application of foreign emoluments to the pres/vp.

          There is in Art II, Sec 1, c2 the statement that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This suggests that elected officer is different from Office of Trust/Profit, similar to the previously quoted reference differentiating congress members from “any office.”

          This reading does get us to an interesting place with Article VI’s dictate: “but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

          If there is a consistency, this would suggest the the religious test clause does not apply to elected officials. It’s been a largely undebated and unexamined belief that the clause does apply, but I can see plausible arguments for why it wouldn’t (whatever one thinks of that on a policy level). The “or” looks like a typo but accepting that is not the case, it appears that the meaning of a “public trust” has not be much examined. See https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1609&context=jcl
          (per fn48, Tillman advised the author that many law review articles even misquote the clause as “of public trust”)

          Beyond that, I don’t see the great variability of usage you describe. I also now have a serious questions as to whether the religious test does not apply to elected officials and whether there is a typo – the law review article doesn’t do much to dissuade me on the latter point.

          1. “But a conclusion that the president and VP are not civil offices would seem helpful to Tillman’s argument, given the certain application of the foreign emoluments clause to civil officers who comprise the rest of the executive branch. ”

            But that’s just it. Nothing in the Foreign Emoluments Clause narrows its application to those holding “civil office.” The provision dictates “no person holding ANY office of profit or trust.” [Caps mine]. Civil, political, and military offices would all be included.

            This simply comports with everything we can know about the Framers and their intentions. Federalists, antifederalists… No one was advocating for more foreign interference or European-style courtly emoluments.

            I feel you’re also missing the point with the clause about Electors. Senators and representatives aren’t the only elected offices. POTUS and VPOTUS are elected as well. But of course it would be preposterous to reserve the possibility that they could be electors in their own elections. That’s just antithetical to separation of powers doctrine generally.

            The religious test possibility you seem to seek to open is also antithetical to Founding Era political theory among the Framers, and unsupported by history. Voters in many New England states didn’t WANT this level of religious freedom in their elected leaders, and this clause in the Constitution is one that they specifically complained about during the ratification process. They objected explicitly because of the possibility “Mohemetans” or “Hindoos” would come to hold elected office. Everyone knew the Constitution’s provision of no religious test applied to elected and appointed positions.

            1. I’m not supposing that the wording, “any office of profit or trust” is limited to “civil office,” I’m also not supposing the term encompasses all offices. I’m keeping an open mind. However, having now looked at the list, I think you’re right the list isn’t great evidence. At best it is inconclusive.

              I think you are missing the point about Electors. If “Office of Trust or Profit” includes elected office, then there would be no need to list “Senator or Representative” also.

              Your use of “antithetical” is doing too much work. Many antithetical things were permitted by the Constitution. There was concern for non-Christians (and Catholics) being elected. Not having a religious test was a matter of debate. It doesn’t follow that the language of the Constitution forbidding tests necessarily applied to elected office. I fully understand the easy acceptance that it does, but maybe there is a more interesting truth there.

              The fact that the Constitution spells out the qualifications for elected office, and doesn’t require a religious test, very arguably addresses the issue completely. Consider the two clauses:

              “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

              James Madison apparently viewed the oath to support the Constitution to be a sort of religious test (Letter to Edmund Pendleton, October 28, 1787). The Constitution was a great compromise, including and not including certain phrases to suit different constituencies. Those who didn’t want non-Christians in office may have taken comfort in the requirement of that oath.

              It is extremely believable that the clauses above were aimed at the same idea in different ways for different groups. The first part addresses almost everyone in government, including on the state level. The second is a subset of that. States long had religious tests, so this understanding looks correct in at least one dimension (and indisputable if “under the United States” meant only the federal level). Question is whether the second clause was meant to apply to everyone on the federal level. We have the anomalous language “Office *or* public Trust” which doesn’t help clarify. I find it completely plausible that the latter clause didn’t apply to those in elected office, without being antithetical the the Founders’ political theory.

  16. 2. George Washington accepted gifts from the Marquis de Lafayette

    For starters, Washington, as president, did not accept “gifts” from Lafayette. He accepted one single token item from the Frenchman he may have considered a surrogate son. This was the key to the Bastille prison in Paris, received by Washington in 1790.

    The key to the Bastille is a pound and change of iron. It is bereft of jewels. It may have had great sentimental value to Washington, but it would fail miserably as an item of fungible value in 1790.

    The destiny of the French Revolution was very much still actively being written in 1790, and the American approval of the bloody gyrations taking place in France would vary wildly over ensuing years. There is no reason to believe that the Bastille key would have amounted at the time to anything more than the sort of curiosity the key to a prison in Aleppo, Syria, would be today.

    The Bastille key’s status as a foreign emolument is highly questionable on other fronts as well. Recall the clause’s provision that the “present, Emolument, Office, or Title of any kind” be received from a “king, prince, or foreign state.”

    Lafayette was at the time a member of political groups that read to the eye and sound to the ear like official instruments of a nation state: the Garde National de Paris and the Assemblée Nationale Constituante. A major reason these bodies strike modern sensibilities as government-sanctioned is that they were styled after the same revolutionary, republican impulses that had produced the American Revolution. The National Guard and the National Assembly were designed to sound legitimate because it was their intention to challenge the legitimacy of the king.

    But it was Louis XVI whom the United States recognized as the legitimate authority in France. The Founding Fathers may have been opposed to monarchy. But they were not prepared to succor the violent overthrow of established governments by every revolutionary junto to come around the bend.

    James Madison’s The Federalist #39 sums up the Founders’ principles well. That essay expresses that majorities of the people under national governments, or the concurrence of a majority of states under federal governments, are “essential” to “alter or abolish established government.”

    This and other key criteria about the revolutionary movement in France was not discernible to Americans at this time. And even the official deeds and utterances of the king himself might have been considered suspect. For ever since October of 1789, Louis XVI had been forcibly removed from the Palace of Versailles and installed at the Tuileries, in Paris. The king was essentially under house arrest—a prisoner of a popular uprising. His actions and pronouncements were all made under extreme duress, and historians now know that Louis was planning to escape and undertake whatever possible actions to mount a counterrevolution.

    Lafayette’s National Guard, indeed, derived its legitimacy not from a majority of the French people but from a medieval charter of the City of Paris, allowing it certain forms of self-government independent go the monarchy. And the membership of the National Guard had largely participated in the storming of the Bastille in 1789—which was a potent symbol of the royal prerogative and abuse of power.

    In summation, the true seat of authority in France at the time Lafayette sent Washington the Bastille key can be disputed even by modern thinkers with the benefit of centuries of records and scholarship. The issue could only have appeared even more of a murky, moving target from the vantage point of New York and Philadelphia between 1789 and 1791.

    It is not possible to pin down whether or not Lafayette can be construed as a member of a foreign state. By the National Assembly’s own June 19, 1790, decree, Lafayette could not have been a member of the nobility, for on that day it was announced:

    “Hereditary nobility is forever abolished. Consequently, the titles of Prince, Duke, Count, Marquis, Viscount, Vidame, Baron, Knight, Lord, Squire, Noble, and all other similar titles shall neither be accepted by, nor bestowed upon, anyone whomsoever.”

  17. “It puts the emoluments on its skin, or else it gets the hose again.”

  18. 3. George Washington accepted gifts from…the French Ambassador while President without seeking congressional approval;

    This refers to a framed, full-length portrait of King Louis XVI, given him in 1791 by French ambassador Jean Baptiste Ternant.

    At first blush, one could easily be forgiven for assuming the portrait was a sumptuous oil painting created by one of the Continent’s great masters.

    It was not.

    The portrait was a black and white print. It was not a color atelier copy reproduced by a master painter’s or apprentice’s hand, but instead by a mechanical process.

    Additionally, the portrait was part of an “ambassadorial kit” sent by France not only to the United States, but also to thirteen other countries.

    France very much had a political aim in sending any portrait. It was to awe and pressure American leaders to pay back the millions in loans they had accepted from Louis XVI’s government, and to abide by the treaty of alliance that factions of American politicians had already begun to abuse.

    Importantly, in judging the would-be “foreign emolument” of the Louis XVI print Washington received from Ternant, one must be aware that Ternant did not pass along a copy to Washington alone.

    After Ternant’s Revolutionary War service and time spent back in France, he returned to American shores with 20 copies of this portrait. Ternant dispensed them to many other members of the U.S. government.

    Secretary of State Thomas Jefferson and Secretary of the Treasury Thomas Jefferson—whose status as appointed officers under the United States was never in doubt—also accepted the same Louis XVI prints.

    Hamilton and Jefferson were well aware the Foreign Emoluments Clause applied to them.

    All this just confirms that an ambassadorial portrait was considered by all to be a decoration of minimal value. The portraits—rendered in various forms that composed the only visual media in a time predating photography—were political tools. They were not dispensations of material value proffered to induce extralegal influence. In other words, the receipt of political portraits neither played to officeholders’ necessities nor their avarice.

    1. While the print was not fancy the frame certainly was. It was personalized for Washington and was clearly intended as a gift. Impressing and thereby influencing government officials with gifts, even if they were purely symbolic, is exactly the sort of thing the clause is supposed to prevent. The clause does not mention value.

      I think this is just an area where the earliest presidents fell short. Gifting and bribery was common in European diplomacy and would’ve been normal to these former aristocrats if not accepted, especially considering the extent of it in French diplomacy and our close ties with them. Formalized bribery demands from French officials led to the Quasi-War in 1800.

      1. The Founders were well aware of the grifting and bribery common in European courts — and this is one reason why the emoluments clauses were incorporated in the Constitution.

        The frame may have been gilded. But common walking-around-in-your-pocket coins of the day (of de minimis value) probably contained as much gold as the frame.

        Furthermore, documents show that prints with the same frame were distributed to other U.S. officials who were definitely covered by the Foreign Emoluments Clause. Secretary of State Thomas Jefferson was one of them. He took the portrait and frame and did not lose sleep over offending the Constitution because he knew the combination was not valuable. He had an entirely different approach to a portrait and frame covered in diamonds and jewels which he did accept, on the sly. He secretly had an underling remove the jewels and sell them in Amsterdam. He kept the frame and the portrait.

        1. The clause does not require the gifts to be financially valuable. There’s no indication that purely symbolic gifts are not covered, which is why presidents can appeal to Congress to allow them to keep those.

          1. “The law does not concern itself with trifles.”

  19. 3. Washington accepted gifts from…the French Ambassador while President without seeking congressional approval;

    This refers to a framed, full-length portrait of King Louis XVI, given him in 1791 by French ambassador Jean Baptiste Ternant.

    At first blush, one could easily be forgiven for assuming the portrait was a sumptuous oil painting created by one of the Continent’s great masters.

    It was not.

    The portrait was a black and white print. It was not a color atelier copy reproduced by a master painter’s or apprentice’s hand, but instead by a mechanical process.

    Additionally, the portrait was part of an “ambassadorial kit” sent by France not only to the United States, but also to thirteen other countries.

    France very much had a political aim in sending any portrait. It was to awe and pressure American leaders to pay back the millions in loans they had accepted from Louis XVI’s government, and to abide by the treaty of alliance that factions of American politicians had already begun to abuse.

    Importantly, in judging the would-be “foreign emolument” of the Louis XVI print Washington received from Ternant, one must be aware that Ternant did not pass along a copy to Washington alone.

    After Ternant’s Revolutionary War service and time spent back in France, he returned to American shores with 20 copies of this portrait. Ternant dispensed them to many other members of the U.S. government.

    Secretary of State Thomas Jefferson and Secretary of the Treasury Thomas Jefferson—whose status as appointed officers under the United States was never in doubt—also accepted the same Louis XVI prints.

    Hamilton and Jefferson were well aware the Foreign Emoluments Clause applied to them.

    All this just confirms that an ambassadorial portrait was considered by all to be a decoration of minimal value. The portraits—rendered in various forms that composed the only visual media in a time predating photography—were political tools. They were not dispensations of material value proffered to induce extralegal influence. In other words, the receipt of political portraits neither played to officeholders’ necessities nor their avarice.

  20. 4. Thomas Jefferson similarly received and accepted diplomatic gifts from Indian tribes and foreign nations, such as a bust of Czar Alexander I from the Russian government.

    Jefferson’s bust of Czar Alexander was sent to him not by the Czar or anyone in the Russian government.

    It was sent to him by Levett Harris, the American consul-general assigned to St. Petersburg.

    “I have been induced to avail myself of this occasion to present to your Exclly. a bust of the Prince whose Character I have attempted to eulogize.”

    L. Harris to T. Jefferson, 04/06/1790

    Moreover, the bust was a plaster copy, not an original marble artwork, of de minimis value.

    As for the gifts from Indian tribes, could an assortment of tomahawks, buffalo hides, stone bowls, and tobacco pipes “operate” on Jefferson’s “necessities” or “appeal to his avarice” as set forth by the test of what may be considered emoluments in The Federalist #73? No.

    What’s more, such items at a Sotheby’s auction today might achieve jaw-dropping monetary bids or in-kind tax deductions if granted to a museum. In 1805 this would not have been the case in a country where the memory that many Indian tribes had fought with the British during the Revolution (and would do so again in the War of 1812) and Native Americans were often perceived as “merciless savages” (Jefferson’s own phrasing in the Declaration of Independence).

    1. You left out an important part of the quotation from Harris: “The flattering attention with which I have been honored at his Court, as the Agent of a Nation for whose Government his Majesty has personally expressed to me his high esteem, and the wisdom and prudence of whose measures, his Ministers have assured me, were a subject on which he frequently dwelt with interest, are a communication not less agreeable to me to make personally to your Excellency.

      I have been induced to avail myself of this occasion to present to your Exclly. a bust of the Prince whose Character I have attempted to eulogize … ”

      It’s pretty clear that the bust was sent through Harris to Jefferson, but the original source was the Emperor. He was induced by the Emperor, not some weird feelings he had for Jefferson. It’s not as if they were selling plaster busts of the Emperor and Harris went to buy one; it had to be commissioned. The only person who could have done that, considering the original was the Emperor’s property, was the Emperor himself.

      1. I am well aware of the whole quote and there is nothing dispositive in your citation that the bust came from the emperor. If the Czar wanted to send a gift to the president of the United States it certainly would have been an official act. Regardless, it’s still a token item of de minimis value, especially in a world without photographs.

        1. “…a communication not less agreeable to me to make personally to your Excellency” indicates that the Emperor induced Harris. Otherwise there was no communication from the Emperor, while Harris said there was. There’s also this part: “… and of being the medium of conveying to my Government the most signal proofs of his regard for the United States” right before the whole passage.

          How would Harris have come into possession of a plaster copy of a marble bust kept by the Emperor? They didn’t just make those for commerce. It had to have come from the Emperor, however indirectly. There’s no reason that it would have been an official act: the US was unpopular with most of the Russian nobility after independence was achieved and we hadn’t formalized relations yet.

          Again, nothing requires the gift to be valuable. Symbolic gifts are covered as well.

          1. Yes — an absolute monarch of vast power and wealth is going to send a small, throwaway, plaster copy bust of himself to another head of state, and do it via a diplomatic functionary. In the diplomacy of the day, this would only be conceived as a massive insult to Jefferson.

          2. Gormadoc, I don’t know who Hennessey is, but he knows enough about putting history in context that you probably ought to sign off. You aren’t going to beat him.

      2. You really think in an absolute monarchy like period Russia they WEREN’T selling busts of the Czar in ever street market in St. Petersburg?

  21. I take it that the “mischief” argument didn’t go over so well?

  22. The notion that the founding fathers, who were so obviously concerned about corruption in the federal government, and equally concerned with the power of the executive, would have intended to exempt the president himself from anti-corruption strictures, is far and away the stupidest, most ludicrous “originalist” claim ever invented. And that’s saying a lot. Moreover this argument has been exhaustively debunked by John Mikhail et al. https://balkin.blogspot.com/2019/09/the-2018-seegers-lecture-emoluments-and.html

    But in the service of defending President Trump, no bullshit argument is too far-fetched. Tillman and Blackman should be ashamed.

    1. Unironic standing ovation.

  23. But _why_ would the Founders have wanted to exclude elected officials? Is there any good reason to do so?

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