The emoluments clauses litigation, part 4—an emolument is the 'profit derived from a discharge of the duties of the office'

(Matt McClain/ The Washington Post)

Our first, second and third posts, based on briefs we submitted to the District Courts for the Southern District of New York and the District of Columbia, explained that because the president does not hold an "Office . . . under the United States," he or she is not subject to the foreign emoluments clause. This drafting convention refers to appointed officers, not elected federal officials. The president, however, is subject to the presidential emoluments clause, also known as the compensation clause or the domestic emoluments clause. Art. II, § 1, cl. 7 provides "The President . . . shall not receive within that Period any other Emolument from the United States, or any of them." The presidential emoluments clause expressly bars the president from receiving an "emolument" from the United States or any state in the Union. Indeed there is a certain symmetry in that the Constitution has three separate emoluments clauses: one for Congress (sinecure or ineligibility clause—Art. I, § 6, cl. 2), one for the president (presidential emoluments clause—Art. II, § 1, cl. 7), and one for appointed officers (foreign emoluments clause—Art. I, § 9, cl. 8).

The plaintiffs in the current litigation assert that President Trump has violated and continues to violate the presidential emoluments clause by receiving profits derived from business transactions with state governments. They have defined an "emolument" to consist of "anything of value," whether "monetary or non-monetary." This post will analyze the meaning of the word "emolument" in the presidential emoluments clause, as well as in the foreign emoluments.

"Emoluments" Refer to "Compensation" Derived from the "Discharge of the Duties of the Office."

Although the term "emoluments" is now somewhat archaic, it has long had a settled meaning. As the Supreme Court explained in Hoyt v. United States (1850), the term "emoluments" "embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office." To put it in its simplest terms, an "emolument" is the lawfully authorized compensation that flows from holding an office or employment. See State ex rel. Anaya v. McBride, 539 P.2d 1006, 1012 (N.M. 1975); State ex rel. Benson v. Schmahl, 145 N.W. 794, 795 (Minn. 1914); State ex rel. Todd v. Reeves, 82 P.2d 173, 176 (Wash. 1938) (Blake, J., dissenting) (citing Hoyt, 51 U.S. (10 How.) 109 (1850)).

The presidential emoluments clause does not bar presidents from holding a second federal office, or even a state office. However, they cannot accept any compensation, that is, emoluments, from that second office. They can only receive the emoluments associated with the presidency. In other words, a president can hold a second government (domestic) position (there is no incompatibility), but he or she cannot take the compensation associated with that second position.

To put it another way, "emoluments" should be understood as the compensation which is to be fixed by law by the body that creates the office or position under discussion, or by the body charged with fixing the office's or position's regular compensation. Pursuant to Article II, Section I, clause 7, the emoluments for the presidency are established by Congress. Congress, and only Congress, has the power to determine the emoluments of each and every federal position and office, including the presidency. Voluntary actions by third parties, or even by the president, cannot change a position's emoluments. With or without the cooperation of the president, a state government, or a foreign power for that matter, cannot change the "emoluments" of the presidency: only Congress can do that.

Further, accepting plaintiffs' contrary position leads to bizarre structural consequences. The ineligibility clause provides: "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, or the Emoluments whereof shall have been [i]ncreased during such time." Under this provision, the president is barred from appointing a senator to a Cabinet position, if that Cabinet post's "emoluments" were increased during his or her Senate term.

Imagine if a state legislature purports to raise the "emoluments" of a Cabinet position by $100 per year by state statute. Have the emoluments been increased? Under the ineligibility clause if its "emoluments" have been increased, a senator cannot take the position, even if the person refrains from accepting the increase. If plaintiffs are correct, and third-parties (like states) can change a federal position's emoluments, then the emoluments have been increased, and the president cannot make the appointment. Plaintiffs' position would give every single state (and every foreign government) a veto power over presidential appointments. Plaintiffs' ahistorical position makes no structural sense. Such bizarre consequences go far to establish that the president's emoluments are compensation as determined by Congress, and only by Congress. A president's business transactions with third parties (the federal government, a state government, or a foreign government), cannot be constitutionally proscribed emoluments.

If there were any doubt that the Hoyt Court's narrow definition of "emoluments" applies to the presidential emoluments clause, one need only consider that President Washington's conduct set the standard.

Benefits from President Washington's "Public Sale of Lots" were not "Emoluments"

On Sept. 18, 1793, President George Washington crossed the Potomac. He was greeted with two brass bands, which escorted him on the first parade that was held in the federal capital district. He traveled from the future site of the White House to the future site of the Capitol. The Columbian Gazetteer, a New York newspaper, reported that upon his arrival, the master of ceremonies "deposited" the Capitol's cornerstone, adding that "the presence of Washington, gave magnificence to the scene, and brilliancy to the performance." Similar accounts were published in newspapers in Boston and South Carolina.

That very same day, historian James Thomas Flexner recounts, "there was to be an auction of lots," which had been actively advertised in newspapers as far away as Philadelphia six months earlier. The auction would be supervised by three commissioners that Washington had appointed in 1791: David Stuart, Daniel Carroll, and Thomas Johnson. These prominent figures played important roles in the early years of our Republic. Stuart was a member of the Virginia convention that ratified the Federal Constitution. Daniel Carroll was a member of the Federal Convention that drafted the Constitution and served in the First Congress. Thomas Johnson was the first governor of Maryland following independence, a member of the Maryland convention that ratified the federal Constitution, and served as an associate justice of the Supreme Court during his tenure as a commissioner.

As the lots in the new federal capital were put up for sale by the auctioneer's chants, Flexner wrote, "there were few raised hands, few shouting voices." One account, according to historian Bob Arnebeck, recalled that some eighteen buyers were present at the public auction. Washington, who had "hoped [this auction] would be more successful than its predecessors . . . leaned forward in suspense," Flexner recounted. And then, he "br[oke] the silence to buy four lots on the East Branch." The certificates for the purchase of lots 5, 12, 13, and 14, preserved in Washington's papers, were recorded as the "Public Sale of Lots."

George Washington received valuable plots of land (i.e., purported "emoluments") from the federal government. To the plaintiffs and their Amici, our first president, under the watchful eye of three prominent members of our founding generation and in full public view in the new federal capital, willfully violated the Constitution. Washington, a trained surveyor of land, would have known that his purchases would be publicly recorded for all to see. This is not the model of a diabolical schemer, attempting to evade his constitutional duties through subterfuge. There was none: it was all done in public. Washington was acutely aware of how his every action would be scrutinized. In a letter to his nephew, and future Supreme Court Justice, Bushrod Washington, the president explained that "my political conduct . . . must be exceedingly circumspect and proof against just criticism, for the Eyes of Argus [the all-seeing, many-eyed giant of Greek mythology] are upon me, and no slip will pass unnoticed that can be improved into a supposed partiality for friends or relations."

It is only now, more than two centuries after Philadelphia, that certain legal historians are making the ahistorical claim that President Washington's business dealings with the federal government is and was prohibited by the presidential emoluments clause. Are we really to believe that not only did the commissioners willingly, openly, and notoriously participate in a conspiracy to aid and abet the president in violating the Constitution's presidential emoluments clause, but that they also left—for themselves and their posterity—a complete and signed documentary trail of their wrongdoing?

Finally, we know of no contemporary opposition to Washington's participation in the land auction, even though he appointed and had supervisory power over the commissioners who presided over the auction. Even at that time, anti-administration officials could have seized upon any maladministration or unethical conduct. In 1793, there were some 13 anti-administration Senators and some 40 anti-administration Representatives.

That no opposition was registered strengthens the inference that Washington's bids were not perceived by the public as anything other than perfectly legal and perfectly fair. Indeed, just as Washington's contemporaries failed to object to his doing business with the federal government, later commentators who had access to these historical records also failed to discuss any such potential objections based on the presidential emoluments clause in regard to Washington's Sept. 18, 1793 land purchases. The one historian (i.e., the one historian not connected to current litigation) to address the scope of the term "emoluments" and its applicability to business transactions has squarely rejected this argument. Attempts to paint Washington as a grossly negligent, if not a crooked dealer, are contrary to the overwhelming weight of evidence. Likewise, efforts to tar the reputation of the commissioners, who were respected officials in the Early Republic, are unsupported by any evidence. The far simpler answer is that business transactions are beyond the scope of the phrase "emoluments" in both the presidential and foreign emoluments clause. Plaintiffs' attempt to redefine these provisions should fail as a matter of law.

A Corpus Linguistics Analysis of "Emoluments"

The Supreme Court's decision in Hoyt and President Washington's practices go far to demonstrate that the word "emoluments" in the presidential emoluments clause cannot mean "anything of value," whether "monetary or non-monetary." This position is bolstered by a new analysis performed by James C. Phillips and Sara White, titled The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799. Phillips and White presented their paper at the recent South Texas Law Review symposium on the foreign emoluments clause, and their paper will be published later next year.

Here is an excerpt of the abstract of this cutting-edge analysis, which Professor Larry Solum said was "Highly recommended. Download it while it's hot!":

…This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship….

We constructed three corpora for our analysis that covered 1760-1799: one of books, pamphlets and broadsides from a mix of ordinary and elite authors (53.4 million words), one correspondence of six major "Founders" (43.9 million words), and one of legal materials (48.6 million words). From each we sampled about 250 instances of the use of the term emolument (and read over 150,000 words of context-the equivalent of a Harry Potter novel). We found that the broad, general sense of emolument was the most common compared to the narrow, office/public employment sense in the "ordinary" corpus (54.6% to 34.1%, 11.2% ambiguous), but that the general sense was less common than the narrow sense in the "elite" corpus (29.3% to 64.8%, 5.9% ambiguous) and the "legal" corpus (25.6% and 68.7%, 5.7% ambiguous). When just looking at instances in our sample where the recipient is an office, we found the narrow sense dominated: "ordinary" corpus (84.2%), "elite" corpus (88.0%), "legal" corpus (94.2%). And the narrow sense was even more common when looking in the context of emoluments from government: "ordinary" corpus (86.7%), "elite" corpus (92.6%), and "legal" corpus (97.3%).

This paper concludes that the congressional and presidential emoluments clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the foreign emoluments clause is more ambiguous given its modifying language "of any kind whatever." Further research into that phrase is needed.

Here is a video of Phillips and White presenting their paper:

https://youtube.com/watch?v=o6KUPzL4HBM%3Flist%3DPLMIM2V8Vm4Yp9iiTdiAcrKTda6y_Pvyc2

The Justice Department has cited Phillips and White's position at some length.

The Word "Emolument" in the Presidential Emoluments Clause Is Narrower than its Usage in the Foreign Emoluments Clause

It is worth stressing that the word "emoluments" in the presidential emoluments clause is arguably even narrower than its usage in the foreign emoluments clause. The latter refers to "any present, Emolument, Office, or Title, of any kind whatever." Though this issue has never been addressed by any court, we submit that the clause's "any kind whatever" language does not turn a non-emolument (e.g., a business transaction) into an emolument. Rather, this provision is best read to extend the force of the foreign emolument clause's emoluments-language to ambiguous cases. To illustrate this principle, courts have long divided on whether pensions and other perquisites accruing to former officeholders are "emoluments," and on whether reimbursing an officeholder's expenses are "emoluments." See 5 A.L.R.2d 1182, § 1-4. The "of any kind whatever" language in the foreign emoluments clause resolves this lingering question.

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Our final post will address certain jurisdictional and pleading issues in the emoluments clause litigation.