The Inspector General, General Services Administration, Refuses to Acknowledge Her Plain Error About the Domestic Emoluments Clause

During the 1793 auction, President Washington purchased public, not private land.

|The Volokh Conspiracy |

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

Since January 2017, litigants have alleged that President Trump is violating the Foreign and Domestic Emoluments Clauses. We have filed several amicus briefs in these cases. We contend that the phrase "emolument" used in the Constitution does not extend to business transactions for value. Rather, "emoluments" are the lawful compensation or profits that are derived from the discharge of the duties of an office. 

Our briefs have discussed an important historical incident in the early years of our Republic. In 1793, President George Washington purchased four lots of land at a public auction in the new federal capital. (We wrote about the transactions here.)  If an "emolument" includes anything of value, then President Washington received something of value from the Federal Government, beyond his regular salary—that is, he received the land. Therefore, he would have violated the Domestic Emoluments Clause. The better reading, we contend, is that "emolument" is limited to the lawful compensation or profits that arise from the discharge of the duties of an office. Under this position, Washington was not a lawbreaker.

However, a January 2019 report from the Office of Inspector General, General Services Administration, reached a different conclusion. The report asserted that Washington purchased private, rather than public property at the auctions. (See pp. 15-16.) Specifically, the report stated that the sales "did not provide [President Washington with] a benefit from the United States." Therefore, Carol F. Ochoa, the Inspector General reasoned, these transactions did not implicate the Domestic Emoluments Clause. This conclusion is not correct.

Bob Arnebeck, a historian with particular expertise concerning President Washington and land transactions in the early federal capital, responded to the Inspector General's Report. He explained that our first President purchased public, not private land. And, if there were any doubts about this record, the President's own correspondences repeatedly referred to the land and the sale as "public." We discussed the Inspector General's error at some length on pages 5-10 of our amicus brief submitted to the U.S. Court of Appeals for the Fourth Circuit.

The Inspector General's error was understandable. She was reviewing intricate financial and historical records from two centuries ago in an area where her office and staff may lack the requisite expertise. However, she remains unwilling to acknowledge this serious error. Tillman contacted the Inspector General's Office multiple times, flagging the plain error in the report. Ultimately, Edward Martin, Counsel to the Inspector General wrote back:

I have reviewed the documents you sent me on April 30, 2019. The GSA OIG's Evaluation of GSA's Management and Administration of the Old Post Office Lease, dated January 16, 2019, is a final report and speaks for itself.

The report does not speak for itself. It is in error. And the Inspector General has taken no steps to correct a plain historical error.

On September 25, the House Committee on Transportation and Infrastructure, Subcommittee on Economic Development, Public Buildings, and Emergency Management, held a hearing on the IG's report. We were asked to testify, but could not attend in person. Instead, we submitted a joint written statement that flagged the IG's plain error. Our testimony was flagged at several points during the hearing.

In this exchange, Rep. Mark Meadows asked Inspector General Ochoa about the error :

MEADOWS: I thank the gentleman from California. Ms. Ochoa, let me come to you. After your report was released, I think Seth Tillman, a lecturer for the Maynooth University Department of Law wrote you detailing a factual error in your constitutional analysis of the Emoluments Clause. Are you–are you aware that?

OCHOA: (OFF-MIC)

MEADOWS: –Can you hit your–

OCHOA: –asking that we adopt his particular argument.

MEADOWS: But–but pointing out that he felt like you had a factual error.

OCHOA: He expressed a different view.

MEADOWS: Well, did he say you were correct?

OCHOA: He–he expressed a different view–

MEADOWS: –It's an easy–well, you got counsel behind you if you want to turn around and ask them. I mean, did he agree with your analysis?

OCHOA: No, he did not.

MEADOWS: Okay. So I would ask unanimous consent that we enter into the record the statement from Professor Josh Blackman and lecturer Seth Tillman detailing the exchange with Miss Ochoa's office.

TITUS: Without objection.

MEADOWS: Thank you. I yield back. 

We did not express a "different view." The Inspector General is simply mistaken. And she is not the first public official who made an error about the Washington transaction. She follows in the footsteps of Judge Peter J. Messitte of the U.S. District Court for the District of Maryland. Relying on the Plaintiffs' erroneous briefs, Judge Messitte conflated Washington's 1793 transactions with a proposed transaction in 1794. We hope that both the Inspector General, and Judge Messitte, eventually acknowledge their errors.

NEXT: Today in Supreme Court History: October 7, 1982

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  1. Josh, you’re wasting our time here.

    1. Such a content-free comment wastes far more time.

      1. This is just objectively false.

    2. Naw. Now anybody who does an internet search on this topic will get this post in page 2 of the results, hopefully page 1.

      1. Which does not rebut my assertion in any way.

    3. Hes wasting his time because simple people like you have already made up your mind.

      1. I haven’t made up my mind in any particular way here. I just recognize that Josh is sniping at a government employee for a putative error without really explaining why that error matters. Based on what he’s said here, the point seems to be a triflingly trivial one, buried several inferences down to his preferred interpretation of the Emoluments Clause.

        But hey, any excuse for a bit of self-promotion, eh?

  2. So what you’re telling me is that George Washington wasn’t only a genocidal war-mongering slave-owner, but also corrupt?

  3. It would have been an emolument if Washington had had the opportunity to buy the land, when other people did not. But if he bought it at auction, he had no greater opportunity to profit from owning the land than anyone else, because they could have outbid him, had they wanted to do so.

    So, it would be improper if elements of the government (or someone else’s government) said “say, Mr. Washington, what would you say this plots of land are worth?”, received a reply, and then asked “would you like to purchase them at a substantially lower price?”
    The emolument would be the difference in value between the land’s price and its true value.
    But, in buying at auction, the difference between the price and true value, as set by market, is 0. If the land was worth more than Washington paid for it, he capitalized on his superior estimate of the land’s true value, not on his ability to make land purchases from the government while he was also in position to direct the government.

  4. The current controversy about Trump’s violation of the Foreign and Domestic Emoluments Clauses has nothing to do with its violation but every thing to do with that it is Trump. If it is the case that a person who owns commercial cannot become president and still own the property then the nation is being denied in some cases the better candidate for president. If there is a time which a democrat becomes the president this emoluments clause will not be a problem for him/her if the democrats are the majority party.
    But as evidenced that when Trump was announced as winner of the election there were democrats who was at that time calling for his impeachment, maybe only because he had won over H Clinton who was destined to be the next president and the first woman president. That has been the theme of the democrats every since the election and they have used every excuse even the fact that he is still breathing air as an excuse for EMPEACHMENT!

  5. When you are stalling, it doesn’t matter if it’s pretending to misunderstand this, or pretending you don’t know information isn’t a campaign contribution for the third time, or pretending a fake dossier is real, etc. When you are stalling because you have no real argument.

    1. You have no real argument, is what you’re saying?

  6. Blackman seems to file an awful lot of Trumpist amicus briefs.

    Since he has so much time for this nonsense maybe his school could get him to teach an extra course.

    1. How about attacking the message instead of the messenger?

      You seem to have even more time to waste.

      1. Well, I am retired.

        1. As well as tired and boring. And often wrong. Well not often. Always wrong.

  7. So when does Congress begin the impeachment process against President Washington? Does that mean that Vice President Adams becomes President?

    1. “So when does Congress begin the impeachment process against President Washington?”

      First, a change of venue seems appropriate. Nobody in the District of Columbia can possibly be untainted by repeated references to Washington. His name appears in literally every issue of the Washington Post.

  8. Whether he purchased private or public land is irrelevant. Under the logic of the plaintiffs in the emoluments lawsuit any transfer of value from a third party to the President is a violation of the emoluments clause.

    1. Even if it isn’t a net transfer. The President drops by McDonald’s and buys a Big Mac, he’s gotten “a thing of value” even though he paid for it.

      Counting normal commercial transactions as emoluments has crazy implications. But that isn’t considered a problem, because it’s just TrumpLaw, meant to expire the moment he’s gone.

      1. They want to narrow the definition of an emolument much more than that. They think it should only apply to profits “derived from the discharge of the duties of an office.” A definition, by the way, that they could only find in two contemporary dictionaries of the time. And Prof. Mikhail shows that there is no record that any founding fathers even had those particular dictionaries in their libraries.

        So yep, TrumpLaw. If it defends Trump, slap it out there, even if it makes no sense.

  9. “We contend that the phrase “emolument” used in the Constitution does not extend to business transactions for value. Rather, “emoluments” are the lawful compensation or profits that are derived from the discharge of the duties of an office. ”

    As I’ve pointed out three times now, this assertion is conclusively disproved by John Mikhail et al. But by all means, continue to post it with no backing and no answer to the critics who point out how ridiculous it is. I guess that’s what passes for originalist legal scholarship these days. I’m guessing you and Prof. Tillman are on the short list for the federal bench.

    1. Well of that isnt an appeal to authority without any sense of logic or refutation I dont know what is.

      1. It’s abundantly clear to all that you don’t know what is. Read Mikhail’s 2018 Seegers Lecture and then get back to us.

  10. The more the Conspirators carry water for Pres. Trump, the less likely they will be hired by solid law schools.

    Carry on . . .

  11. Who cares about the domestic emoluments clause? It’s written very differently than the foreign emoluments clause:

    he shall not receive . . . any other Emolument from the United States, or any of them

    No Person holding any Office of Profit or Trust under the[ United States], shall . . . accept of ANY PRESENT, Emolument . . . of ANY KIND WHATEVER . . . .

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