The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?

[I'm delighted that Profs. Josh Blackman and Seth Barrett Tillman, have passed along this response to the recent decision in the Emoluments Clause litigation against President Trump; naturally, I'd be delighted to post a response in turn from their adversaries. -EV]


In a series of writings and briefs, we have maintained that President Washington's practices refute the legal claims that President Trump has violated the Foreign and Domestic Emoluments Clauses. President Washington received valuable gifts from foreign governments without seeking congressional consent. Furthermore, he purchased land from the federal government in a public auction. Based on our understanding of the Foreign and Domestic Emoluments Clauses, these acts were perfectly lawful. However, under the constructions put forward in ongoing litigation, President Washington publicly violated both provisions. Those opposing President Trump respond that President Washington was either mistaken or he brazenly violated the Constitution he helped to define. These litigation positions are contrary to a weight of bona fide authority.

Time and again, the Supreme Court has looked to Washington's decisions and practice when interpreting the text and structure of the Constitution. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter fittingly "derive[d] consolation from the reflection that the President and the Congress between them will continue to safeguard the heritage which comes to them straight from George Washington." Washington's public acts such as accepting diplomatic gifts, are entitled to special solicitude when construing the Constitution. In America's Unwritten Constitution, Akhil Reed Amar wrote "Washington defined the archetypical presidential role," and "[a]s America's first 'first man,' [he] set precedents from his earliest moments on the job."

Until recently, no court had opined on the validity of Washington's practices with respect to the Emoluments Clauses. The Honorable George B. Daniels of the U.S. District Court for the Southern District of New York concluded that the case was not justiciable. Therefore, in December 2017, he granted the government's motion to dismiss. (That case is currently on appeal to the Second Circuit.) However, on July 25, 2018, the Honorable Peter J. Messitte of the U.S. District Court for the District of Maryland denied the government's motion to dismiss. And in doing so, Judge Messitte devoted nearly five pages to the arguments we raised in our briefs.

Though he rejected each and every one of our positions, we are grateful to the Court for shining a light on these important historical issues. Judge Messitte put on notice the Fourth Circuit, and all other courts, that any ruling for the Plaintiffs ought to address our arguments. Stated differently, if President Washington was correct, then President Trump should prevail. In order for the Plaintiffs to prevail, the courts must demonstrate that President Washington was wrong. In July 2016, Professor Will Baude wrote that the Tillman has "singlehandedly shifted the burden of proof." In any event, in ordinary civil litigation, the burden of persuasion rests with Plaintiffs. Because Judge Messitte's opinion is marred by plain historical errors, the Plaintiffs have not carried that burden.

Washington's Completed Land Transactions

In its opening brief, DOJ explained that President Washington bought four lots of land (lots nos. 5, 12, 13, and 14 in square 667) at an auction in the new federal capital. That land was purchased on September 18, 1793. According to the Plaintiffs' definition of "emolument," President Washington received something of value from the federal government, beyond his salary--that is, he received the land. Therefore, he would have violated the Domestic Emoluments Clause. Judge Messitte rejected the relevance of this evidence. Why? He asserted that "the surrounding facts [of the auction] . . . are seriously incomplete." Specifically, he posed a series of questions: "What sort of public auction was held? How was it advertised? How many bidders were involved?" Slip op. at 45–46.

Judge Messitte poses these questions as if they were unknowable. Yet, our Amicus Brief expressly answered each of these questions, and more. We showed that the auction was an open auction with oral bids. We showed that it was advertised six months prior to the auction in a newspaper in Philadelphia—then America's commercial capital and its former national capital. We showed that there were some eighteen bidders. Blackman-Tillman Br. at 28–29. These conclusions were well supported by primary documents and good secondary authorities.

President Washington's Prospective Land Transactions

Subsequent to that initial purchase of the four lots in September 1793, President Washington expressed an interest in purchasing further land in the federal capital. DOJ Memo at 43. In March 1794, he wrote to the Commissioners for the District of Columbia about a second proposed purchase (not in square 667, but in square 21). Washington stated: "I should be glad to know what my prospect is." He added, "I am as ready to relinquish, as I was to imbibe the idea, of this purchase." (emphasis added). In this letter, he suggested he would "relinquish" the "idea" of buying the land.

Yet, Plaintiffs conflate the completed and proposed transactions. They argued that Washington was "ready to relinquish" the property which he had already purchased in 1793. Pl.'s Opp'n at 45. They insinuated that Washington expressed doubt about the validity or finality of the 1793 purchase. This mischaracterization of the record confuses a straightforward primary source. DOJ did not concede this point in its reply. Rather, the government responded that even if Plaintiffs' characterization were correct, then the first and only actual completed transaction still illustrates that Washington benefited from doing business with the federal government. Furthermore, his commissioners (including a Supreme Court Justice) facilitated the purchase. Reply at 25–26. Indeed, Washington made the purchase in full view of the public at an advertised auction. DOJ's characterization of two transactions—a completed one and a proposed one—was entirely correct.

Judge Messitte squarely adopted Plaintiffs' characterization of the contested facts surrounding these transactions. He likewise conflated the two transactions: the completed one and the proposed one. Judge Messitte wrote: "as Plaintiffs note, Washington later made clear that [Washington] was 'ready to relinquish' the property if necessary, which itself calls into question the actual relevance of this transaction." Slip op. at 46 (emphasis added). The Court erred here. Washington was not talking about relinquishing the property he had already purchased in 1793, but instead was referring to a prospective land transaction. Unfortunately, Judge Messitte relied on the Plaintiffs' plain factual error to obscure how President Washington understood his own constitutional authority. Moreover, Messitte's characterization also obscures how the commissioners, as well as their contemporaries, understood the actions of the President. Even worse, the Court stated that the Plaintiffs' position was "clear." Yet, Judge Messitte offered no explanation why he rejected the DOJ's contrary, and correct, position.

It is common enough for a Court to make an error with regard to its use of a historical document. Judges make mistakes, as do we all. Rather, the point here is that Judge Messitte's opinion was announced in the context of an early Rule 12(b) motion, rather than after an evidentiary hearing, e.g., in the context of a Rule 56 motion; in effect, he took judicial notice of a key disputed historical fact. Judge Messitte should not have adopted an incorrect interpretation of a contested document, nor should he have then characterized his announced position as "clear." The far better course would have been to provide a reasoned explanation for his conclusion, following an adversarial hearing. See Oneida Indian Nation of N.Y. v. New York, 691 F.2d 1070, 1086 (2d Cir. 1982) (explaining that "when facts or opinions found in historical materials or secondary sources are disputed, it is error to accept the data (however authentic) as evidence" and that the "better course is to conduct an evidentiary hearing").

If Judge Messitte's interpretation of the Domestic Emoluments Clause and its "emoluments"-language were correct, then Washington violated the clause, and his three commissioners conspired to help him do so in full light of day. The choice before us is a simple one: either: (1) President Washington and his three commissioners (including a Supreme Court Justice) were right, and Judge Messitte is wrong; or (2) Judge Messitte is correct, and President Washington and his three commissioners were wrong. But that is the choice before us. Judge Messitte's opinion obfuscates that choice by characterizing this straight forward event—President Washington's 1793 land purchases—as a "purported" and "potential" violation: it was either a violation or it was not. Future proceedings can correct this error: the 1793 Washington land purchase—at an advertised, public auction—serves as an on point Executive Branch precedent that the President is permitted to derive benefits from doing business with the federal government, notwithstanding the "emoluments" language in the Domestic Emoluments Clause.

Despite the presence of this evidence in the record, Judge Messitte still characterized the land auction as a "purported potential Domestic Emoluments Clause violation by President Washington." Judge Messitte implied that he, and not President Washington, is the more faithful arbiter of the Constitution. Parties bear a heavy burden in asserting that "President Washington did not understand" the Constitution that his precedents helped define. Judge Messitte's conclusion that the Constitution's "emoluments"-language reaches business transactions was based upon Plaintiffs' characterization of Washington's 1793 land transaction, but that analysis was marred by plain historical error. Judge Messitte, in effect, concludes that Washington violated the Domestic Emoluments Clause by transacting business with the federal government. Judge Messitte's analysis leaves unanswered the obvious question: Why are Plaintiffs and the Court unable to point to any one of Washington's contemporaries, any opposition in Congress, or in the press, any contemporaneous or subsequent legal scholar or historian—who noticed this illegality prior to the election of President Trump? The most likely explanation is simple: they did not notice any illegality because they did not think there was any illegality to notice.

The Weight of President Washington's Practices

Finally, Judge Messitte reasoned in the alternative. Even if the "single" land transaction supported the Defendant, that evidence must be weighed against other "historical evidence, textual support, and executive branch precedent to the contrary." Slip op. at 46. Judge Messitte is correct that he must weigh the competing streams of authority. Alas, his scale is one-sided: he considers the Washington land transaction as the only evidence in support of the Defendant. (This evidence was put forward by the DOJ.) But there was other evidence—lots of it.

The Blackman-Tillman brief dedicated an entire free-standing brief section describing evidence of diplomatic gifts given to George Washington and to his successors, i.e., other Presidents during the Federalist Era and Early Republic. Washington and his successors received, accepted, and kept these diplomatic gifts—all absent congressional consent. The public knew about these gifts, and they were discussed in contemporaneous diplomatic communications. Until this litigation, no historian or contemporaneous or subsequent legal scholar (as far as we know) ever suggested that Washington or his successors violated the Foreign Emoluments Clause. Nor can one find a trace of protest in congressional debate or in the press. Why not? We posit that there was no protest, because presidents were not understood to be bound by the Foreign Emoluments Clause.

Moreover, the Court concluded that de minimis gifts and transactions were beyond the scope of the Constitution's "emoluments"-language. We do not take issue with that conclusion here. (However, Professor Andy Grewal noted that "no dictionary has ever defined an emolument as 'anything of value but with some de minimis exceptions where potential of corruption does not exist.'") Rather, here, we point out that Plaintiffs and their many supporting amici put nothing in the record from which Judge Messitte might reasonably conclude that the value of these diplomatic gifts had de minimis value. To the contrary, we have long anticipated this sort of argument. In our brief, we describe the "framed full-length portrait of King Louis XVI" as a "valuable gift," and the portrait was mounted inside a "valuable ornate frame." These were not de minimis gifts. We are (again) ready to put forward experts to support our position. Judge Messitte was perfectly correct to engage in balancing or weighing the competing streams of authority. However, he discounted Washington's 1793 land transaction based on plain error. Furthermore, he failed to consider the many diplomatic gifts given to President Washington and his successors in the Early Republic. The Court only considered the evidence on one side of the scales: this approach cannot be described as balancing in any meaningful sense.

There are other problems with Judge Messitte's opinion, which we will discuss in due course. For example, he defines "officers of the United States" and "office . . . under the United States" as interchangeable. He indicates that both terms refer to all federal officers in our government, whether elected or appointed: "As the Domestic Emoluments Clause illustrates, the term 'United States' is used in the Constitution to distinguish between the federal and state governments." Slip op. at 12. The Court makes no effort to explain why this is the case: why does the Constitution use divergent language (i.e., "office under the United States" and "officers of the United States") to express the same concepts? Nor does his opinion grapple with the severe structural problems this approach creates. Asher Steinberg—who agrees with some, but not all of our arguments—ably points out these issues.

For now, it is enough that we point out that the District of Maryland's five-page rebuke of our brief rests on plain historical error. Moreover, that error was enabled by errors in the Plaintiffs' briefs. On appeal, the burden remains on the Plaintiffs to show that the District of Maryland, and not President Washington, is the more faithful arbiter of the Emoluments Clauses.

NEXT: N.J. Court Orders Google to Vanish Plaintiff's Photo -- Published at the Chicago Tribune -- From Search Results

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I'm pretty sure it wasn't just Washington who violated the plantiffs' interpretation of the emoluments clause, but a fair number of Presidents until recently.

    1. Presidents, senators, judges, ambassadors, cabinet officials....

      John Bryson was Secretary of Commerce under Obama. Before that, he was a director for Boeing. Probably had a fair chunk of Boeing stock.

      Say, don't they get billions in revenue from foreign governments?

  2. Wait, we're saying that the President doesn't hold an "Office of Profit or Trust under" the United States?

    1. According to Tillman's original brief, Hamilton by Washington's orders Drew up a list of officer in an "Office of Profit or Trust under" the United States. It included every cabinet officer, judges, ambassadors, etc. But not a single elected officials, not the President, VP, Senator, or Congressman. Which makes a good point, how many Senators or Congressman over the years would fail the standard they are trying to set for Trump?

  3. And that full-length portrait of King Louis - was it a gift in the sense that Washington could take it back to Mount Vernon after he left office, or was it a gift to the U. S. to be held onto by whoever was President?

    1. I believe it's still hanging at Mt. Vernon.

      1. I'm not sure I'm comfortable with that, even if it *was* Washington who did it.

        1. Ah, here it is.

          Shortly after Washington got that gift in 1791, King Louis was deposed and executed.

          Does that make it not a gift of a king, or the French state, anymore?

          But he should have left the portrait in the executive residence for future Presidents - though I wonder what the British would have done with it when they briefly seized Washington, DC?

          1. If I were Washington's defender, I'd say that the portrait ceased being a gift of France or its King after France killed the king and became an anti-monarchical Republic.

            It would have become just a leftover from a prior French regime.

            1. If it was a gift from France to the US, it would still belong to the US regardless of the government in place. If was given to Washington by the French Ambassador and Washington thanked him, not for the country but personally. Washington clearly believed it was a personal gift.

              1. Which makes it irrelevant to the emoluments clause, which refers to presents from any King, Prince, or foreign State.

  4. Washington was widely viewed as the most honorable and moral man in the country. Not to mention that he was actually "in the room", as President of the Convention when these issues were debated and decided. Also present was future President James Madison

    1. I'm actually less persuaded by the fact that Washington didn't see any problem with the sorts of actions these plaintiffs complain of, (History has transformed him into a god, but he was just a fallible man.) than by the fact that nobody else seems to have seen anything wrong with them until now. Through multiple administrations run by businessmen who didn't recuse themselves from their businesses.

      People will, in all innocence, overlook their own wrongs, but even Washington had enemies who wouldn't have.

      1. multiple administrations run by businessmen who didn't recuse themselves from their businesses.

        The last businessman President I recall was Carter, who certainly did "recuse himself" from his business.

        Then there is this:

        For the past 40 years, every president and presidential candidate who has had anything other than the most vanilla of investment portfolios ? Barack Obama, who had most of his money in Treasury bonds, fell into that category ? has put or has promised to put their assets into a blind trust to prevent any kind of conflict of interest between what's good for the country and what's good for their retirement....

        Donald Trump, though, has refused to entertain this even though he has a much more extensive and eclectic array of holdings that includes golf courses in the United Arab Emirates, skyscrapers in Turkey and condos in the Philippines.

        So who do you have in mind?

        1. And, of course, history started with Carter, right? Weren't any businessman Presidents before those past 40 years?

          For most of the history of the country, we were electing businessmen, and they weren't putting their businesses into blind trusts. In a country founded in the late 1700's, "the past 40 years" is a tiny fraction of our history.

          That's my point: Those bind trusts are a recent development.

          1. He said the "last" businessman. Of course, he didn't say history started with Carter.

            And, the provisions are specifically not concerned with "business" but a specific type of business, which "for most of our history" did not involve the multinational business connections with domestic and foreign states and parties of the like of Trump. When it suits, Trump is special. When it does not, Trump becomes a boring average middle of the road business person.

            To the degree there was a certain limited mixing of government and private business, over the years, we got more strict in being concerned with it. So, early on, attorney generals regularly continued to do private business, something now deemed totally unethical and probably if one researched it illegal.

            1. Well, I approach the Constitution as an originalist, and while what's deemed unethical might have changed, what can be deemed an "emolument" would not change barring a constitutional amendment.

              So I take practice across most of the nation's history as definitive: Simply engaging in the ordinary transactions of business doesn't cut it. You'd have to demonstrate that money was being laundered to the President through the business.

              Strikes me as just more TrumpLaw, in any case.

              1. The original understanding was (as noted by the preamble to the committee of detail report, James Madison, John Marshall et. al.) that the Constitution had open-ended terms whose meanings would be applied as experience warranted. The term "emolument" has a basic core meaning but the specifics would depend on current understanding.

                But, I realize "originalist" has various meanings. At any rate, the Constitution has always been applied using the method I referenced, so practice matters. You don't use "practice across most of the nation's history as definitive" in other areas, such as campaign finance regulation. Anyway, the plaintiffs had their own historical argument that refuted take here.

                Finally, Trump is not merely "Simply engaging in the ordinary transactions of business" but even if he was, being the business partner a king would have been a problem during the Washington Administration. "TrumpLaw" to you is over and over and over again "they are going after my guy."

                1. To emphasize one thing.

                  If "ordinary business practice" was the test, full stop, you can have people covered by the ban running a business with a king with foreign clients in a business deeply enmeshed in foreign policy and nothing would be wrong with it.

                  Ordinary businesses can be set up like that. And, the litigation has shown how foreign and state government actors are directly taking part in his business. This is exactly the sort of possible corruption that the bans were in place to address. Not (though the text very well might be open-ended enough to cover more) any sort of "business" of those covered.

                  I realize you are a conservative but many some libertarians here are equally concerned about such things no matter who is in power. Government corruption being their concern. And, a full accounting of the emoluments ban -- including discretionary provisions if Congress actually wanted to do more -- covers what is at issue.

                  1. "You'd have to demonstrate that money was being laundered to the President through the business."

                    Yes, money going to Trump's company, is not being "laundered" exactly perhaps -- it is somewhat more exact. This qualifier doesn't amount to much.

                    If the 2A was defined this narrowly, and there was long historical practice to back it up in various ways, you might not like it as much. Ditto the 1A, well parts of it.

  5. What I find funny about this whole thing is that Trump, being possibly the richest President ever, is probably the least likely to be bribed. Obama's wealth increased far more than his mere salary, the rest presumably coming from speaking fees. Those are far more likely to corrupt Obama than Trump because Obama had no independent income. Was the Nobel prize not an emolument? Those things come with a $million or so, don't they?

    1. I think there have been a number of upstanding Presidents who were less likely than Trump to accept bribes solely on moral and ethical grounds. Financial "need" is not the only factor in the decision to accept/not accept a bribe.

      There have also been a number of Presidents who likely were not as upstanding but much more clever about how they masked emoluments than Trump is likely to be. Trump would likely instantly tweet about any emolument so he may be less likely to receive them as the person offering "If you do X, I guarantee you that our professional organization will pay you $500K speaking fee within 18 months of the end of your term" doesn't want to be exposed as engaging in bribery.

      One argument about Obama's Nobel Prize is that it is not granted by a foreign government but rather by a private entity. The complication is that the supposedly independent members of the committee making the decision on who gets the prize are appointed by the Norwegian Parliament as specified in Nobel's will.

      1. As a fraction of the total economy, Trump almost certainly isn't the richest President. He apparently is adjusted for inflation, but he's a big fish in an ocean, compared to our early Presidents' being middle sized fish in a pond.

        1. I don't know how you figure "our early presidents" (as a bloc) were richer but perhaps try to tone down the certainty given various expert analysts disagree here. Jefferson is listed near the top, but given his debts, for instance, don't know how "rich" he truly was.

          If we want to compare, Trump also is especially involved in the sort of financial affairs that were particularly a concern, being involved in a multinational business empire with direct involvement in very large ways of foreign governments, particularly Russia, that are much greater than others.

          Trump is not merely some "middle sized fish" in comparison even if his net wealth compared to others might be smaller than a few other residents of the Oval Office. If we want to quantify things to provide watered down versions of constitutional provisions, let's be comprehensive about it.

          1. I stated my point clearly: As a fraction of the total economy.

            1. A misleading stat and even then it's curious -- how was Washington a "middle sized fish" exactly? Never mind. It's comes off as spin.

    2. Trump, being possibly the richest President ever, is probably the least likely to be bribed.

      We actually don't know how rich he is. We do know he is one greedy MF, and a stunningly dishonest person. So I doubt your assertion is anywhere near correct.

    3. What I find funny about this whole thing is that Trump, being possibly the richest President ever, is probably the least likely to be bribed.

      It has been reported that President Trump's grifting extended to using assets from his charitable foundation to fund his son's Seven Dollar ($7.00) Boy Scout membership dues. That would render this observation not merely unpersuasive but indeed foolish.

      This is a man who inherited enormous wealth yet still abused a charitable foundation for personal gain, swindled people seeking education at Trump University, stiffed legitimate creditors as a matter of course, charges taxpayers for government use of his properties as he golfs every weekend, and repeatedly used bankruptcy petitions to avoid just debts.

      Or, as some see him, an incorruptible hero.

      1. "This is a man who [...] charges taxpayers for government use of his properties as he golfs every weekend"

        That may have been a persuasive argument, were it not for the fact that Trump golfed every weekend before being elected as well; in other words, his habit did not change upon his election. Meanwhile, it is the Congress through its own legislation that requires the President to be accompanied by a certain entourage of armed guards and to fly on certain government-provided transportation. In other words, it isn't Trump "charging taxpayers" at all. If it bothers you so much, consider either 1) contacting your Congressman, or 2) actually voting next time.

        1. Trump golfed every weekend before being elected as well;

          So what?

          He also claimed that he probably wouldn't have time for it as President.

          Oh, and by the way, Trump's opponents did vote. In fact, as you may recall, he got fewer votes than his opponent.

    4. What I find funny about this whole thing is that Trump, being possibly the richest President ever, is probably the least likely to be bribed.

      Rich people often get that way because they're very focused on making money. That actually makes them easier to bribe, not harder. The bribes just have to be bigger.

      Trump seems to be more focused on making money than most. Stiffing charities, self-dealing his own charity, stiffing contractors, running scams, etc, etc.

      If you've got the cash and a way to give it to him I'd posit that Trump is a pretty easy guy to pay off.

  6. Was the Nobel prize not an emolument? Of course not, progressives are as pure as the driven snow.

    1. I don't think the Nobel committee is a foreign Prince, state, potentate, etc.

      1. It's appointed by a foreign state. The Norwegian Parliament appoints the Nobel Peace Prize Committee, who awards the Nobel Peace Prize in the presence of the King of Norway, in the city hall of Oslo.


        I mean, I suppose if some foreign state decided to bribe the president by using a Visa card, it's technically Visa, not the state paying the bribe.

        1. I cannot see any reasonable argument that the Nobel Prize was not an emolument. He should have requested official permission from Congress for it. However, by not objecting, Congress did provide fairly clear approval.

          1. The matter was investigated. One news article noted, for instance:

            "Plus, the Justice Department lawyers added to their reasoning past precedent ? noting that two previous sitting presidents (Theodore Roosevelt and Woodrow Wilson) had won the Peace Prize as well as a sitting vice president, Secretary of State, and a U.S. Senator."

            There was a reasonable argument present that it was not covered but yes Congress not objecting then or in the past is relevant. But, Congress at times lets unconstitutional things go -- some of its own acts were declared unconstitutional -- so that only goes so far.

            1. I don't think the failure of Congress to object is persuasive.

              There are lots of reasons why they might let it go.

              1. It is of limited value at least when there is a long practice.

                But, I would not merely rest on it.

        2. It's appointed by a foreign state.

          So? Does the Norwegian government dictate who gets the prize?

  7. Washington is a truly great person because of some stuff he didn't do.

    He didn't get beaten by overwhelming British forces - he played rope-a-dope with them until he could get relieved by the French, and then was able to strike a fatal blow.

    He didn't become a Caesar or Cromwell (or Bolivar or Napoleon on Ben Bella, etc., etc.) - he became a republican (small r) leader devoted to the historic Constitution he helped set up.

    But he did a few things that weren't idea - like with slavery, or accepting this painting.

    1. Slavery was of course legal during Washington's terms. The emoluments clause on the other hand was already in force before and during his terms.

      There is a big difference between "ideal" and "legal". Generally legislative bodies (should) deal with the former and courts (should) deal only with the latter.

      1. There was the Fugitive Slave Act of 1793, which Washington signed, though later a (proslavery) Supreme Court suggested it had constitutional defects.

  8. If plaintiffs win this case, how is it resolved? Sale of Trump hotels?

    1. An election do-over, but this time Hillary wins, and we wake up from our Long National Nightmare.

    2. With lawsuits against every public official "of trust" (or more) who owns stock.

      Merck and Pfizer bring in billions from foreign governments. And they're on the DJIA.

    3. The judge ordered that arguments be submitted as to relief as part of his opinion.

      I suppose there are various possible solutions including Congress eventually agreeing to the emoluments though that wouldn't address the domestic emoluments issue.

      Part of the purpose of the litigation is discovery -- to provide access to documentation showing his profits and involvement in activity that might violate the constitutional requirements. Not dismissing the lawsuit allowed that to continue. Also, to the degree the problem is certain clientele (such as state governments), it can be a matter of not allowing such a customer base in a way that violations the provisions.

      OTOH, if a "President" is not even covered, the resolution could include Congress not even having the power to optionally limit certain types of emoluments etc. that benefit them.

  9. The judge was appointed by Clinton, surprise surprise, or actually not.

  10. The claim that Washington's land purchases are a useful precedent is ludicrous.

    As described in the OP, these purchases were made at open, well-publicized, well-attended, auctions. In other words the land was purchased at market price, and any benefit he got was readily available to anyone else who outbid him at the auction. It had zero to do with him being President. He didn't get some sort of employee discount on the land.

    As for the gifts from ambassadors, if they were personal gifts they were not covered. If not, it's possible to posit, as Blackman and Tillman do, that there was no protest, because presidents were not understood to be bound by the Foreign Emoluments Clause, though aside from some paper-thin arguments about what "under" means, I don't see why not. It makes zero sense to say that there was a fear that all government officials, other than the President, might be corrupted by gifts from foreign governments, but no concern at all that the President could be similarly corrupted.

    Alternatively, it is possible to posit that no one really wanted to make an issue of it and attack Washington. It's also possible to ask whether, Blackman and Tillman notwithstanding, the gifts were in fact, de minimis. Maybe they weren't. Who knows, but the evidence presented in the OP, and apparently the brief, is no evidence at all. It is an assertion by the authors that the gifts were valuable. Not particularly convincing.

    1. "As for the gifts from ambassadors, if they were personal gifts they were not covered."

      Wait, personal for whom, giver or recipient?

        1. Don't be ridiculous. Ambassadors do not give gifts out of their own pockets; they are their government's representatives, and every gift they give is from their government. And government gifts are never given to states; they are always given to the recipient personally, regardless of what the recipient's country's laws may provide.

    2. Kind of ridiculous your mental gymnastics to keep from conceding Tilman is right. By your reasoning all Trump has to do is make sure the transactions are publicised. And is anyone claiming they aren't at market price?

      1. I think you're missing the point.

        You can't really give someone a gift by selling them land via a well publicized public auction, if you try to give them a discount someone will just bid up the price...

        As for Trump, I think his Mar-A-Lago fees doubled after winning office, and his DC hotel is certainly able to charge much higher rates than it would otherwise and get lots of business from representatives of foreign governments. The "market price" has lost meaning because it's a market for his exclusive property, they'll pay whatever they have to in order stay at the hotel and curry favour.

        1. However, that would become an unreasonable ban on any business owner to become president. If that counts as an illegal receipt, what doesn't? You cannot make a law that cannot be complied with.

          I still cannot understand the mental gymnastics that this is illegal, but Obama's Nobel wasn't.

          1. an unreasonable ban on any business owner to become president.


            My opinion, for what it's worth, is this. Business or other income that is unconnected with being President is OK. Income that the President gets because he is President is not.

            That's why the auction business in the OP is nonsensical.

            Yes, it's a difficult distinction sometimes, and getting the details right would be hard, but maybe we could try, and maybe an ethical President could take steps on his own.

            Take the hotel. Are the rates comparable to other luxury hotels in DC? Could he ask that foreign diplomats stay elsewhere? Could he have a management company run it and pay him a fixed fee?

        2. Does it hurt twisting yourself into that pretzel shape?

      2. By your reasoning all Trump has to do is make sure the transactions are publicised.


        Read my comment again. It's not that the transaction is publicized. It's that the auction that led to the transaction was well-publicized and well-attended, so it is quite reasonable to say that Washington paid a market price, and received no advantage from being President. Anyone there could have outbid him and gotten the claimed benefit for themselves.

        1. Then by your reasoning then any sales of Obama's Dreams of My Father to foreign or domestic public libraries after he became president violated th emoluments clause.

          1. It might have.

            I'm not a big fan of Presidents cashing in.

            Even after leaving office I think they should, as a matter of propriety, avoid things like highly paid speeches or corporate board appointments. Teaching, writing, running your business, etc., are fine, but some things are just unseemly.

    3. So, if diplomats from a foreign state decided to purchase rooms at one of the hotels Mr. Trump owns, rooms at market rate which have prices that are well publicized, which anyone else could buy....

    4. You're right, it is ridiculous, which makes me wonder why anyone even brought it up. Unless someone can argue that he got a sweetheart deal, purchasing land doesn't constitute receiving income any more than buying groceries does. (And nobody is going to believe that the president isn't allowed to buy groceries.)

      1. Does the president buy groceries from the government? Or a foreign government? If not, I don't understand your analogy.

  11. The funny Latin phrase with the modern meaning of anything worth more than a used gumball wrapper with the Bazooka Joe punchline scratched off may not have meant the same thing back then, if it was used at all?

    "Here's a painting worth (about $5000 today as a new thing)" is a cheap gift. "Here's (about $50,000,000 today) of land" is not and much more problematic.

  12. Given the Alien & Sedition Acts, I find the actions of the founding fathers less than wildly useful for constitutional interpretation. They, like every elected official subsequently, occasionally did unconstitutional stuff. Lincoln (not a founding father, but apparently equally an angel) purported to suspend the writ of habeas corpus, knowing full well that he didn't have the authority to, and Washington apparently took a painting home. Neither of those things changes the meaning of the constitution.

    1. "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it".

      I think there was a reasonable argument == and even Reverdy Johnson who later defended someone during the trial of those involved in the assassination plot == thought so fwiw = Lincoln did not violate the clause.

      But, the overall idea is on point. Madison himself changed his mind over time and admitted as well that what he did in office (as to accepting congressional paid chaplains or the like) might have been a political compromise as compared to a completely loyal following of constitutional demands.

  13. But seriously, wasn't the common meaning of "emolument" back then the stipend that came with the title?

  14. Seriously though. Peter J. Messitte is a district court Judge with the United States Government. That is an "office of trust".

    We need to ask the question, has he received any "gain, profit, or advantage, direct or indirect, from foreign states, of more than de minimus amounts," in his 25 years on the bench? Note, knowledge or quid pro quo isn't required.

    In accounting for "de minimus", I believe we should apply the IRS standard. Which is "any" cash or cash equivalent standards.

    Then, we need a quick look at Judge Messitte's stock holdings. It does not matter if they are blind or not. It only matters if any company in those stock holdings has gained any revenue from foreign states.

  15. Hot Dog, there was a justice frankfurter? That's awesome.

    1. His prot?g?s were called Happy Hot Dogs because his first name was Felix ("happy").

      1. Those are both wieners! You both win!

  16. Arguments were made to show how the Washington situation is not comparable in certain ways, but you know what, maybe he was wrong. He was wrong about things. John Adams was too -- he was wrong to sign the Alien and Sedition Act into law, which we now in at least part think is unconstitutional. Things developed since then in various ways at any rate. Finally, the other side argued from history too and got another place.

    The bottom line requires not to determine what Washington thought but what we today, using full experience of history, think the text and document means.

    1. With the full-length portrait of King Louis that Washington brought back to Mt. Vernon, we can say he simply slipped up, based on standards existing at the time - probably he didn't think he would be corrupted by keeping a gift from a now-overthrown regime. He should have left the portrait in government custody.

      I don't know what this says about Trump, I haven't followed closely enough - I hope he leaves any gift portraits, statuettes, etc. in the White House as public property.

    2. The bottom line requires not to determine what Washington thought but what we today, using full experience of history, think the text and document means.

      Yes. And the knowledge we have today as well.

    3. For instance, take the land sales issue.

      At the time, many in government actually benefited from inside information and made a killing on land sales. The matter was a concern even then, including involving blatant bribery, as seen for instance in the facts and controversy around Fletcher v. Peck / Yazoo Land Scandal. The rules still were more lax than today.

      When determining the proper reach of the multiple emolument provisions in question, including the proper reach of congressional action (one argument is that this is a political question, not one for the courts), we are not limited to what Washington and his society thought about the specifics of the question.

      They were wrong about things and/or things changed over time.

      1. IIRC the Ga legislators who were involved in the Yazoo scandal were voted out of office, and the next legislature concelled the land grants, leading to lengthy controversy about the rights of good-faith purchasers under the old grants.

  17. I'm not sure he's right, but kudos to Prof. Tillman for having such an impact on the debate. And kudos as well to David Farenthold of the Washington Post for the impact of his reporting on Trump's finances. His articles were also cited in Judge Messitte's opinion.

  18. Of possible relevance, here is H. L. Mencken's article "Star-Spangled Men" from his Prejudices, 3rd series. At the bottom of p. 134, he seems to suggest that American soldiers have been unconstitutionally (?) accepting foreign honors in World War One.

  19. Reagan received an Arabian stallion from the President of Mexico.
    Where was the outrage then?

    1. They were just stallion for time.

    2. Gifts to the President from foreign governments are officially owned by the National Archives, but Presidents have the option of buying them at market value if they want to.

      1. I reed that as well. Any record of the archives receiving the horse? Of course not. Reagan kept it at his California ranch. Any record of him paying the archives for the horse? No. It was a gift. he kept it.

        1. They must have misfiled the horse at the National nobody knows where it is, but for many years afterwards their glue shortage was solved.

          1. Expensive glue. That horse was worth 7 figures.

            1. That made me think of the joke whose punch line is "the chicken was delicious!"

  20. Josh,
    Just go with the flow and start bringing lawsuits against senators and House members from community property states whose spouses' companies do business with foreign states.

    Doug Emhoff (Kamala Harris' husband) as a shareholder over at DLA Piper looks like a pretty obvious violator under the Maryland standard.

Please to post comments