The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[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?
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.