The Emoluments Clauses litigation, part 2—the practices of the early presidents, the first Congress and Alexander Hamilton

Gilbert Stuart's "Portrait of George Washington." (PRNewsFoto/Dallas Auction Gallery)

The Foreign Emoluments Clause provides that "no Person holding any Office of Profit or Trust under [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." In our first post, we showed that the drafting convention "Office … under the United States" covers appointed, and not elected, positions within the federal government. As a result, the President is not subject to the Foreign Emoluments Clause.

This post, based on amicus briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia, will explain how the practices of presidents during the early republic, the first Congress, and Alexander Hamilton, while serving as America's first secretary of the treasury, confirm that they understood that the president was not subject to the Foreign Emoluments Clause and its "Office … under the United States" language.

Washington and his Successors During the Early Republic Openly Accepted Foreign Presents Without Seeking Congressional Consent

In 1791, President George Washington received, accepted, and kept a diplomatic gift—a framed full-length portrait of King Louis XVI from the French ambassador to the United States. There is no evidence that Washington ever sought or received congressional consent to keep this valuable gift. In addition to the portrait, Washington also received the main key to the Bastille accompanied with a picture of that fortress, from the Marquis de Lafayette, who at the time was a French government official. Lest anyone mistakenly believe that the key was merely a private gift from Lafayette to his friend Washington, this gift was discussed in a diplomatic communication from the French government's representative in the United States to his superiors in the French ministry of foreign affairs.

Both of these items were prominently displayed in the federal capital. The portrait and valuable ornate frame, which included the Washington family crest and the monogram of the French king to "embod[y] … amicable Franco-American relations," hung in Washington's principal room. To this day, the key is on public display at Mount Vernon. The foreign provenance of these gifts from foreign governments would have been immediately recognizable to anyone who saw them. Indeed, the provenance of the key was widely reported in contemporaneous newspapers. If the Foreign Emoluments Clause applies to presidents, then the president is precluded from accepting not just "emoluments," but also "any present … of any kind whatever" from foreign states absent congressional consent. Yet, there is no record of Washington seeking or receiving congressional consent. Nor is there any evidence of any dissent—dissent in Congress among anti-administration members, dissent in newspapers or any dissent in any private correspondence. Washington's accepting these items and his doing so without any recorded contemporaneous objections or any objections among subsequent scholars are strong evidence that no one thought he had done anything wrong (i.e., violated the Constitution's Foreign Emoluments Clause)—until plaintiffs in the Emoluments Clauses cases determined that Presidents Trump and Washington (by implication) were not merely corrupt, but obviously corrupt.

Washington's conduct, particularly his public acts, is entitled to special solicitude when construing the Constitution. Parties bear a heavy burden in asserting that Washington did not understand the Constitution he helped define. As Professor Akhil Reed Amar observed, "Washington defined the archetypical presidential role," and as "America's first 'first man,' [he] set precedents from his earliest moments on the job." Given that plaintiffs and their amici are effectively alleging that Washington publicly violated the Constitution absent any noticeable opposition, the burden on them is even heavier.

Moreover, Washington was not the lone president to accept foreign gifts. For example, President Thomas Jefferson received a bust of Czar Alexander I, a diplomatic gift, from the Russian government. Jefferson received, accepted and kept this diplomatic gift. Jefferson's "particular esteem" for Alexander "convinced him to break his [personal] rule of not accepting gifts while in public office." There is no indication that Jefferson felt his decision was controlled by the Foreign Emoluments Clause. As with Washington, there is no evidence Jefferson ever sought or received congressional consent to keep the bust.

Jefferson also received presents from Indian tribes, which he considered "diplomatic gifts" from foreign nations. During their great trek, Meriwether Lewis and William Clark exchanged many gifts with the Indian tribes in "diplomatic and social contexts." Lewis and Clark ultimately delivered many of these gifts to Jefferson. Jefferson did not seek or receive congressional consent to keep the gifts. He put them on public display at Monticello, where they remain on display today. What all these presents from foreign states had in common was that the presidential recipients believed (as best as we can tell) that keeping the presents had no constitutional implications under the Foreign Emoluments Clause. Further, unlike Washington, who had a close personal friendship with Lafayette, Jefferson kept diplomatic gifts from the czar and from foreign Indian leaders: all people he had never met. Further, unlike Washington, who was unanimously elected twice by the electoral college, Jefferson had active political opponents who would report and object to malfeasance.

The First Congress Used the "Office … Under the United States" Drafting Convention to Include Only Appointed Positions

In a 1790 anti-bribery statute, Congress declared that a defendant convicted of bribing a federal judge "shall forever be disqualified to hold any office of honor, trust, or profit under the United States." This statute's language closely tracks the language in the Foreign Emoluments Clause. If per the Constitution's Foreign Emoluments Clause, the president holds an "Office of Profit or Trust under [the United States]," then this 1790 statute, enacted one year after the Constitution went into force, would be deeply problematic.

Congress does not have the power to add, by statute, new qualifications for federal elected positions. In Federalist No. 60, Alexander Hamilton wrote that qualifications for membership in Congress are "defined and fixed in the Constitution, and are unalterable by the [national] legislature." Likewise, a statute that required the president to "attain[] the Age" of 40, instead of 35, would be plainly unconstitutional.

If the plaintiffs are correct, i.e., if elected positions, such as the president, hold an "Office … under the United States," then this 1790 statute would also be plainly unconstitutional. The better view is that plaintiffs' intuition is incorrect. Courts should avoid an interpretation of "Office … under the United States" under which the first Congress unconstitutionally added qualifications for the presidency and other elected positions. Rather, the more reasonable interpretation is that members of that body (which included many framers and ratifiers) understood that "Office … under the United States" did not extend to elected positions. The preference for this latter construction, which raises no constitutional doubts and comports with longstanding "Office … under the United States" drafting conventions, is further bolstered by the special solicitude that is afforded to the first Congress.

It is certainly true that early Congresses took actions that were later disapproved of by the courts. But such disputes concerned highly controversial legislation, such as the Sedition Act, or in the case of the Judiciary Act of 1789, implementation of a new, complex statutory system. There is no record indicating that the 1790 act's "Office … under the United States" provision was hotly debated in Congress or by the public. And, unlike the Judiciary Act of 1789, which essentially built a new and complex structural constitution for the judiciary, the 1790 Act made use of long-standing principles and policies, and most importantly, language. Indeed, the phrase at issue here—"Office … under the United States" – had a long-established pedigree. There is every good reason to conclude that, because "office … under the United States" in the 1790 Act (and in other subsequent federal statutes) could not have reached elected officials, the same language in the Constitution does not reach elected officials, such as the president.

Alexander Hamilton Used the "Office … Under the United States" Drafting Convention to Include Only Appointed Positions

In 1792, the Senate directed Washington's secretary of the treasury, Alexander Hamilton, to draft a financial statement listing the "emoluments" of "every person holding any civil office or employment under the United States." As Adam Liptak recently observed in the New York Times, this "language tracks but is a little broader than what is in the [Foreign] [E]moluments [C]lause." Hamilton took more than nine months to draft and submit a response, which spanned some 90 manuscript-sized pages. The report included appointed or administrative personnel in each of the three branches of the federal government, including the legislative branch (e.g., the secretary of the Senate and clerk of the House and their staffs) and the clerks of the federal courts. But Hamilton's carefully worded response did not include the president, vice president, senators or representatives. The editors of the "Papers of Alexander Hamilton" marked this document "DS," meaning "document signed," which indicates that this document was signed by Hamilton.

The Senate asked for a list of "every person holding any civil office or employment under the United States," and that is precisely what Hamilton delivered—to the exclusion of any elected official. If the Constitution's "office … under the United States" language reached elected officials, then quite plainly Hamilton misunderstood the meaning of the Constitution's language, which used language which he helped draft and ratify. It is counterintuitive to suggest that Hamilton misunderstood this frequently used language. The better reading is that Hamilton accurately responded to the Senate's precise request: Elected officials do not hold office under the United States, and so they were not listed.

Plaintiffs and their amici have cited a scrivener's copy of Hamilton's report. That scrivener's copy, drafted by an unknown Senate functionary, lists the president and vice president, but this document was not signed by Hamilton, and it was drafted after Hamilton's death. (Our position in regard to the authenticity of these two documents—the Hamilton-signed document and the subsequent scrivener's copy—is supported by Kenneth R. Bowling, John P. Kaminski and other experts.)

Whatever value this latter report has, it should not be accorded the same weight as the actual document signed by Hamilton and transmitted to the Senate as an official executive branch communication. Indeed, courts should accord the Hamilton list (i.e., the Hamilton signed list) at least the same weight as a modern-day comptroller general's memorandum.

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Plaintiffs' position, notwithstanding its intuitive appeal, must be rejected. Good history trumps modern linguistic intuitions. Washington and other founders who succeeded him as president did not act lawlessly, and if any of them had done so, surely there would be some record, somewhere recording some objection or dissent. But there is no such record (at least none which we or the plaintiffs or their amici have produced). The first Congress should not be understood to have enacted a patently unconstitutional statute. Alexander Hamilton, a meticulous lawyer, should not be presumed to have misunderstood the Constitution and its language which he helped draft and ratify. Rather, the text and history of the Constitution, and probative post-ratification practice during the early republic, strongly support the counterintuitive view: The president does not hold an "Office … under the United States."

In our third post, we will address certain implications of the Constitution's taxonomy of "offices" and "officers," including whether the president can concurrently serve in the House or Senate.