The emoluments clauses litigation, Part 3 â€" so what if the president does not hold 'Office … under the United States'?

(Matt McClain/ The Washington Post)

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 officers, and not elected officials within the federal government. As a result, the president is not subject to the foreign emoluments clause. Our second post explained how the practices of presidents during the early republic, the first Congress and Alexander Hamilton, while serving as America's first treasury secretary, confirm that they understood that the president was not subject to the foreign emoluments clause and its "Office … under the United States" language. Both posts were based on amicus briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia.

This post will offer an FAQ of what happens if the president does not hold "Office … under the United States." Here we respond to several questions advanced by the plaintiffs and their amici, as well as others raised in the Volokh Conspiracy comment thread. For full length treatments of these queries, see Tillman's many publications on this subject.

1. Does the incompatibility clause bar the president from concurrently serving in the House or Senate?

The incompatibility clause states that "no person holding any Office under the United States" may serve in either the House or Senate. Professor Steven G. Calabresi and now-Justice Joan L. Larsen explained decades ago that this clause was an ethics provision, not a "general separation-of-powers provision." As illustrated in Federalist No. 76, the framers saw the English Constitution as corrupt because the king could bribe members of parliament (MPs) with lucrative office. But the king never bribed MPs by making them king. Likewise, the president could bribe members of Congress with lucrative positions, but the president could not make members of Congress president. Simply put, the primary purpose of the incompatibility clause had nothing to do with barring the president from concurrently serving in the House or Senate.

There are many bad consequences the Constitution does not expressly preclude. The (federal) Constitution does not expressly bar a person from concurrently holding two state positions. Nor does it expressly bar a person from concurrently holding an appointed Judicial Branch position and an appointed Executive Branch position (John Marshall served as both chief justice and secretary of state during the Adams administration). Nor does the Constitution expressly bar a person from concurrently holding two House seats, or two Senate seats, or a House and Senate seat. All these results are (arguably) bad. But the fact that a result is bad does not mean it is addressed by the Constitution's incompatibility clause and its "Office under the United States" language.

Of course, some of the bad joint office holdings described above, just like joint presidential-congressional officeholding, might be barred on structural grounds. For example, Professor Akhil Reed Amar has written that even though, as a textual matter, the vice president should preside at his own impeachment trial, other constitutional principles would bar such a conflicted proceeding. Perhaps, similar structural constraints might bar a president from concurrently serving in the House or the Senate. But even if such an implied structural constitutional bar exists, that limitation against concurrent officeholding is not rooted in the text of the incompatibility clause and its "Office under the United States" language.

2. Under the disqualification clause, can Congress prospectively bar an impeached officer from being elected to Congress or to the presidency?

If the House impeaches a president, vice president or officer of the United States, then that defendant is tried by the Senate. If the Senate tries and convicts (by a two-thirds vote), then the convicted party (if still in office) is removed. The Senate may also impose a second punishment on the convicted party. Under the disqualification clause, Congress may bar the convicted party from prospectively holding "any Office of honor, Trust or Profit under the United States." This provision grants Congress the power to prevent a convicted party from being appointed to a federal position, but does nothing to prevent a convicted party from being elected to the House, Senate or the presidency.

Congress has disqualified only three impeached officers (all federal judges) from holding future office, and none have subsequently run for elected federal positions. As a result, we have no substantial law here and little commentary. We have already explained that Justice Joseph Story indicated that elected officials did not fall under the scope of the Constitution's general "officer of the United States"and "Office … under the United States" language. This latter language is at least as wide as the disqualification clause's "Office of honor, Trust or Profit under the United States" language. Story's position is also supported by Hamilton's roll of officers. Of course, we also believe the practice of George Washington and other founders who succeeded him as president confirms that the "Office … under the United States" language in the foreign emoluments clause does not reach the presidency. The same result should apply here. An impeached, tried, convicted, removed and disqualified defendant is barred from being an appointed federal officer, and not barred from being an elected official.

We also think that our position is the one that is normatively sound. The impeachment process is a political process that allows Congress to cleanse the government between elections: when there is no time to wait for an appeal to the people. But the impeachment process is a political process. The people doing the impeaching may not only be wrong, but they also might be the wrongdoers. Our position in regard to the scope of disqualification allows the voters, not Congress, to have the last word. If the voters return a disqualified defendant to elective office it is because where in doubt, it is the voters, not their agents in Congress, who should have the last word.

3. Does the elector incompatibility clause bar the president from serving as an elector?

The elector incompatibility clause provides: "No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." The president is not expressly mentioned. Our position is that the president and vice president can serve as electors, even if they are standing as candidates. Again, we look to Hamilton for support. In Federalist No. 68, Hamilton stated:

[The framers] have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes … . And they have excluded from eligibility to this trust [as federal elector], all those who from [their] situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias.

Hamilton's exposition of the elector incompatibility clause was wholly concerned with decisional independence, not pre-commitment bias.

Statutory officers appointed by the president are excluded from serving as electors precisely because the president (or his immediate subordinates) appointed them, because the president is in a position to remove them, and because the president may appoint or promote them to additional or higher offices. By contrast, the president and vice president (and their successors) are not subject to presidential appointment, removal or supervision in the ordinary course of business. As such they are not "officers … under the United States," and there is no danger in allowing them to serve as electors per Hamilton's analysis.

To put it another way, if pre-commitment bias arising from self-interest were the rationale for the elector incompatibility clause, then candidates who are not incumbents would be precluded from acting as electors, and electors would be precluded from voting for themselves (and for family members, and perhaps even for fellow party members). But the Constitution does no such thing.

4. Is the president subject to the religious test clause?

The religious test clause provides "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Our position is that "Office … under the United States" extends to all appointed officers, and that "public Trust … under the United States" extends to all elected officials. Thus the religious test clause covers all federal positions, appointed and elected, including the president.

What are the competing views? Those who have taken the position that the Constitution's "Office under the United States" language extends to all federal positions, appointed and elected, are left arguing that the religious test clause's "public Trust under the United States" language is pure surplusage. Those who argue that "Office under the United States" extends to appointed officers and the president and vice president have made no effort to explain the scope of the religious test clause's "public Trust under the United States" language, much less what to make of the contrary evidence arising in connection with presidential practice, the First Congress, Story's "Commentaries," and Hamilton's roll of officers. The virtue of the argument put forward here is that our position accounts for the Constitution's varying text, drafting history, and post-ratification practice. The competing theories can only appeal to modern good governance norms and modern linguistic intuitions.

5. What about George Mason and Edmund Randolph?

During the Virginia ratifying convention, George Mason and Edmund Randolph took the position that the foreign emoluments clause applies to the president. Randolph opined that the president "may be impeached" for violating the foreign emoluments clause. (If Randolph is correct that impeachment is the proper remedy for the president's violating the foreign emoluments clause—and he is not—then plaintiffs' grievances are being litigated in the wrong court.)

Randolph's and Mason's positions are problematic because they also thought that members of Congress could be impeached. Specifically, they believed that the Constitution's general office-language (that is, "Officers of the United States" as used in the impeachment clause) extends to representatives and senators. Randolph and Mason's positions on the impeachment and foreign emoluments clauses are not independent, separate or distinguishable: Both positions arise from their view that the scope of the Constitution's general office-language extends to elected officials. Their view in regard to the impeachment clause's office-language was contemporaneously rejected by James Monroe, ratifier and future president, and ultimately by the Senate sitting as a court of impeachment. There is no principled way to rely on their closely related view in regard to the scope of the foreign emoluments clause's office-language.

6. What about Presidents Jackson, Van Buren, Tyler and Lincoln?

Plaintiffs and their amici contend that the actions of Presidents Andrew Jackson, Martin Van Buren, John Tyler and Abraham Lincoln suggest that they acted under the assumption that the foreign emoluments clause applies to the president. However, these antebellum presidents never asked for consent to keep foreign gifts. Rather, each simply asked Congress to dispose of those gifts. Jackson said "our Constitution forbids the acceptance of presents from a foreign State," and "placed [the medal] at the disposal of Congress." Van Buren wrote "I deem it my duty to lay the proposition before Congress, for such disposition as they may think fit to make of it." Tyler wrote that foreign gifts "will be disposed of in such manner as Congress may think proper to direct." The House resolved that gifts received by Lincoln from the King of Siam would be "deposited in the collection of curiosities at the Department of the Interior," but there was no request for him to keep it. In May 1861, President Lincoln deposited with the State Department a diploma of citizenship he received from San Marino. Because the gift was addressed to President James Buchanan, a century later the Office of Legal Counsel concluded that that Lincoln treated the diploma as a "gift[] to the United States, rather than as personal gift[]." The House and Senate were fully able to consent to these foreign gifts—and indeed consented to other foreign gifts at the time—but the presidents never asked for such consent.

To the extent that these presidents operated under the assumption they were bound by the foreign emoluments clause, such practices would have represented a sharp break with the traditions of President Washington other founders who succeeded him as president during the early republic. There is no indication that any of these antebellum presidents were aware of the earlier precedents established by their predecessors—including actors who took an active hand in framing the Constitution, ratifying it and putting it into practice. This later-in-time evidence, in which presidents never actually asked to keep foreign gifts, is less probative.

7. What about the 2009 Office of Legal Counsel opinion?

In 2009 the Office of Legal Counsel (OLC) affirmed in a memorandum that "the President surely 'hold[s] an[] Office of Profit or Trust' … ." (emphasis added). The OLC offered no evidence whatsoever to support this conclusion, and did not reference the "Office … under" drafting convention, the precedents established by Washington other founders who succeeded him as president during the early republic, or the practices of the First Congress, or Hamilton's roll of officers. The OLC's mere unexamined assumption is entitled to little weight. The glib word "surely," by itself, does not prove the argument.

While the OLC has not revisited its unsupported conclusion, the Congressional Research Service (CRS), an institution with a reputation for probity and quality analysis, has changed course. As recently as 2012, the CRS concluded that "The President and all federal officials are restricted by the Constitution, at Article I, Section 9, clause 8 … ." However, more recently, after becoming aware of the research presented in Tillman's scholarship, the CRS modified its position. Now the service hedges, noting that foreign emoluments clause "might technically apply to the President." This change is not without significance.

To date, the Justice Department has declined to argue that the president is not covered by the foreign emoluments clause—simply assuming the answer—though the agency has, as is its practice, carefully avoided taking an explicit position on this constitutional question. Having convinced amici that the Condensed Report is not an authentic Hamilton-signed document, we believe we will also convince the OLC in the not too distant future. Much like the taxing-power argument in the Obamacare litigation, which was basically ignored in the lower-court litigation, the "Office … under the United States" argument is a silver-bullet that can save the case on appeal.

8. Isn't there a difference between foreign-government gifts given to President Washington and foreign-government transactions made with President Trump's businesses?

The presidential emoluments clause provides "The President … shall not receive within that Period any other Emolument from the United States, or any of them." This clause concerns only the receipt of an "Emolument" from the United States, or one of the states in the Union. In contrast, the scope of the foreign emoluments clause is far broader. It applies to the "accept[ance] of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." Unlike the Seventh Amendment, which guarantees a jury trial where the "value in controversy shall exceed twenty dollars," the foreign emoluments clause applies to a mere "present," regardless of its value. If the president were subject to the foreign emoluments clause—and he is not—then there is no obvious constitutional difference between President Washington accepting an ornately framed portrait from the French government and President Trump accepting hotel receipts from the French government. The former is a "present," and the latter (at least under the plaintiffs' flawed reading) is an "emolument." Both would be equally prohibited. However, neither is prohibited because the president is not subject to the foreign emoluments clause. And further, as we will discuss in our fourth post, an "emolument" is limited to "compensation or pecuniary profit derived from a discharge of the duties of the office."

9. How can you be right if the framers were "obsessed" with corruption?

The previous questions ultimately boil down to a final intuition: These arguments can not possibly be right because the framers drafted the foreign emoluments clause to eliminate corruption. Indeed, as Professor Zephyr Teachout has written throughout her impressive body of scholarship, the framers were "obsessed" with corruption. We do not mean to criticize Teachout, who, unlike so many of the Johnny-come-latelies, actually wrote about the foreign emoluments clause prior to the 2016 election. But we think that this an untethered purposivist argument is not enough to trump the body of textual and historical evidence we have provided. As Will Baude noted in 2016, Tillman's arguments have "shifted the burden of proof" to those who claim that the president is subject to the foreign emoluments clause. Citing a general purpose behind the Constitution is not enough.

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Our next post will turn to the meaning of "emoluments" as used in the presidential emoluments clause and the foreign emoluments clause.