The Office of Legal Counsel Has Not Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President. But the Civil Division Has.

DOJ’s Schrödinger’s Briefs in the Emoluments Clauses litigation are in tension with a 2009 OLC Opinion

[This post is co-authored with Seth Barrett Tillman]

In a recent post, we explained that the Congressional Research Service ("CRS") has shifted its position concerning the Foreign Emoluments Clause. In 2012, CRS stated that "The President and all federal officials are restricted by the" Foreign Emoluments Clause. In 2016, CRS hedged a bit. The office stated that the Foreign Emoluments Clause "might technically apply to the President." And last month, CRS declined to take a position on this question in light of the "significant academic debate about whether Office of Legal Counsel's conclusion [in its 2009 memorandum] comports with the original public meaning of the Foreign Emoluments Clause." This debate largely centers around Tillman's scholarship on the Constitution's "office" language―a subject he has written on continuously since 2008.

While CRS has modified its position in response to this "significant academic debate," the Office of Legal Counsel ("OLC") has not. In 2009, OLC stated, in a conclusory fashion, that the Foreign Emoluments Clause "surely" applies to the President. And OLC has said nothing since, throughout nearly three years of litigation concerning the Foreign Emoluments Clause. (Of course, this silence may be due to the fact that no "client" in the Executive Branch has asked the OLC to review its prior advice.) Nevertheless, the Department of Justice ("DOJ") Civil Division, which is litigating the Foreign Emoluments Clause cases, has taken a different position. 

We flagged this shift in a February 2018 post: 

DOJ has not affirmatively argued [for the Tillman] position [about the scope of the Foreign Emoluments Clause], but in a letter to the Southern District of New York, DOJ lawyers stated that "[t]he Government has not conceded that the President is subject to the Foreign Emoluments Clause." The DOJ's letter represents a shift from a 2009 Office of Legal Counsel ("OLC") opinion, which stated, without any analysis or explanation, that the Foreign Emoluments Clause "surely" applies to the President.

Subsequently, DOJ made similar statements in the U.S. District Courts for the District of Maryland ("We assume for purposes of this Statement that the President is subject to the Foreign Emoluments Clause") and the District of Columbia ("For purposes of his motion to dismiss, the President has assumed that he is subject to the Foreign Emoluments Clause on the assumption that he holds an 'Office of Profit or Trust' within the meaning of the Clause.").

The government's position emulates Schrödinger's Cat: maybe the Foreign Emoluments Clause applies to the President; maybe it doesn't; don't ask; we won't tell. Without question, the government knows how to take a decisive position on similar questions. For example, DOJ argued in a 2018 Supreme Court brief that an Administrative Law Judge must be considered an "officer of the United States" for purposes of the Appointments Clause, even though the historical record and established body of judicial precedent was in conflict. Yet when it comes to the President and the Foreign Emoluments Clause, the Department of Justice proceeds with all deliberate agnosticism.

In an April 30, 2018 filing, the Civil Division cast further doubt on the OLC opinion. The brief described this issue of whether the President is subject to the Foreign Emoluments Clause as a "novel question," not one—as Plaintiffs insist—that is settled by longstanding Executive Branch precedent. The Civil Division brief also raised a red flag by contending that OLC reached its conclusion "without discussion." While the 2009 opinion spans thirteen pages in length, the Civil Division now points out the obvious: the memorandum's analysis about the scope of the Foreign Emoluments Clause and its application to the presidency is only one word long: "surely." The brief also made a series of "observations" about the "historical evidence" that Tillman has advanced--the very same evidence that CRS has found persuasive. 

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

First, the brief discussed the import of a 1790 statute enacted by the First Congress:

Amici point to the First Congress's enactment of a statute in 1790 forever barring a person convicted of bribing a federal judge from holding "any office of honor, trust, or profit under the United States." ECF No. 40 at 12 (citing Act of Apr. 30, 1790, ch. 9, § 21, 1 Stat. 112, 117 (1790)). According to Amici, the First Congress would not have enacted such a statute if it thought that elected officials hold "offices under the United States" because the First Congress presumably knew that only the Constitution could set the qualifications of elected offices and the Office of the President. See id. Indeed, the Federalist recognized that the qualifications of Members of Congress are "defined and fixed in the Constitution, and are unalterable by the legislature." The Federalist No. 60 (Alexander Hamilton), at 409 (Jacob Cooke, ed., 1961). The same necessarily would be true of qualifications for the President. That is, the 1790 Act enacted by the First Congress would in fact run afoul of such restrictions if applied to Members of Congress or the President, if such officials hold "offices under the United States."

We discussed this statute in a September 2017 blog post:

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.

Here, the Civil Division seems to agree with our logic.

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

Second, DOJ discussed the relevance of Alexander Hamilton's 1792 financial statement:

Amici also point to then-Secretary of the Treasury Alexander Hamilton's compilation of the "salaries, fees, and emoluments, for one year, ending the 1st of October, 1792, of persons holding civil offices or employment under the United States, (except the judges)." Amici assert that the President was not included on that list, citing to the National Archives' online version of Hamilton's cover letter to the Senate with a table of contents. See ECF No. 40 at 14 n.51. The editor of the National Archives' page noted that the actual list consists of 90 pages of manuscript and that "for an abbreviated version of [the manuscript], see [American State Papers], Miscellaneous, I, 57–68." As Amici recognize, see ECF No. 40 at 15, the "abbreviated version" did include the President. Regardless of the weight to be placed on either version of the list, the important point to be drawn from the Hamilton list of "salaries, fees, and emoluments" is that it did not appear to include any official's financial gains arising from private business pursuits. As Amici note, see id. at 14 n.49, that is consistent with the President's interpretation of an "emolument" as a profit derived from a discharge of duties in an office or employment. See MTD at 19.

Here, DOJ does not dispute the relevance of Hamilton's list to the meaning of the "office . . . under the United States" drafting convention. Rather, the Civil Division focuses on another important element of this document: Hamilton did not understand the phrase "emolument" to include "any official's financial gains arising from private business pursuits." DOJ declines to recognize our point, but should be willing to draw a similar inference based on the types of officers Hamilton listed in the actual document his department drafted. Moreover, Hamilton personally signed this document.  The other document which DOJ references is not one that Hamilton's Treasury Department drafted, and is not one which Hamilton signed. In fact, it now appears that all serious historians acknowledge that this second document was merely an editor's recreation drafted more than 30 years later. We discuss the history of the Hamilton-signed original document and its subsequent reproduction in our September 2017 blog post. 

Washington Openly Accepted Presents from Foreign Governments Without Seeking Congressional Consent

Third, DOJ discusses the relevance of certain gifts President Washington accepted:

Amici also assert that early Presidents received gifts from foreign officials without seeking congressional consent. Amici cite George Washington's receipt of a portrait of King Louis XVI from the French ambassador and the key to the Bastille from a French officer, the Marquis de Lafayette. See ECF No. 40 at 18–20. In the absence of any evidence of congressional consent, Washington's acceptance of these gifts may suggest that he did not believe he was subject to the Clause. On the other hand, it is also possible that he accepted the gifts believing that he was doing so on behalf of the American people. See MTD at 33 (noting that rather than always declining foreign gifts, U.S. officials sometimes accepted foreign presents on behalf of the United States so as not to cause offense); see, e.g., S. Exec. Doc. No. 37-23, at 6–7 (1862) (Abraham Lincoln's letter to the King of Siam stating that "our laws forbid the President from receiving these rich presents as personal treasures" but that he would accept them on behalf of the American people). As Amici indicate, both of these items "were prominently displayed in the federal capital," and the key was "showcased in Philadelphia when the seat of government moved there" in 1790, ECF No. 40 at 19. Of course, the fact that the key to the Bastille is now at Mount Vernon, see id., could undermine the view that Washington accepted the key on behalf of the American people. But Washington also might have viewed the key as a personal gift. Lafayette was a former Washington aide during the American Revolutionary War and had described the gift as "a tribute Which I owe as A Son to My Adoptive father, as an aid de Camp to My General, [and] as a Missionary of liberty to its patriarch."

Here, DOJ is truly wrestling with the evidence. On the one hand, there are indications that this was a diplomatic gift that Washington personally accepted. Such a transaction would, under the Plaintiffs' theory of the case, violate the Foreign Emoluments Clause. On the other hand, perhaps the gift was personal in nature, or was not in fact a gift from the French government. In that case, Washington's conduct would not implicate the Foreign Emoluments Clause. 

These objections are reasonable, but ultimately, are rebuttable. We have already submitted evidence into the litigation to show that the gift from Lafayette was not a private gift; this gift was discussed in a contemporaneous diplomatic communication from the French government's representative in the United States to his superiors in the French ministry of foreign affairs.  Moreover, the DOJ says nothing to undermine the more important of the two gifts, a full-length portrait of Louis XVI, framed with gold leaf. This obvious diplomatic gift―was given by the French ambassador to President Washington. The acceptance of such diplomatic gifts―which were discussed in a contemporaneous diplomatic communication―would implicate the core purpose behind the Foreign Emoluments Clause. 

Jefferson Openly Accepted Presents form Foreign Governments Without Seeking Congressional Consent

Fourth, DOJ discusses the relevance of certain gifts President Jefferson accepted:

Amici further assert that Thomas Jefferson accepted a bust of Czar Alexander I from the Russian government. ECF No. 40 at 20–21. This is a curious episode because Jefferson was aware of the Foreign Emoluments Clause's prohibition on the acceptance of foreign government presents and had complied with it while President. See H.R. Rep. No. 23-302, at 2 (stating that Jefferson, while President, received horses as presents from a foreign government; he accepted the horses so as not to cause offense but then sold them and deposited the money into the Treasury). On the other hand, in writing to thank the American Consul-General for transmitting the bust, Jefferson did not mention the Foreign Emoluments Clause, noting instead that he had a rule of accepting "no present beyond a book, a pamphlet, or other curiosity of minor value" while in office, but would make an exception because of his particular esteem for the Czar.

There is no indication that Jefferson felt his decision concerning the bust 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. (We do dispute the nature of Jefferson's horse gifts, but that is a topic for another time.) 

DOJ also failed to mention other diplomatic gifts Jefferson accepted. We wrote about them in our 2017 post:

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.

We suspect that the dismissiveness of the Indian gifts is due, in part, to a dismissiveness of the diplomatic status of these nations. Jefferson's writings establish that he considered these gifts as coming from foreign nations. We think Jefferson was correct. But correct or not, as a matter of public international law or domestic law, the fact that Jefferson believed these that these gifts came from foreign governments is what is important to our inquiry. If Jefferson believed that these were foreign diplomatic gifts, and where, as here, he chose not to seek congressional consent, that would indicate that he did not think the Foreign Emoluments Clause was controlling. 

Schrödinger's Briefs

In sum, the Civil Division has expressed an awareness of historical evidence that casts doubt on whether the Foreign Emoluments Clause applies to the President. But it has not yet taken a firm position on this question. The Civil Division's uncertainty is difficult to square with the Office of Legal Counsel's 2009 opinion that "the President surely hold[s] an 'Office of Profit or Trust' under [the United States]" for purposes of the Foreign Emoluments Clause. If this position was "surely" true, then the DOJ Civil Division would not have filed Schrödinger briefs that do not take a position on an issue central to plaintiffs' entire case.

We can only speculate on why the Department of Justice has taken such an indecisive position. Imagine the headlines: "President argues in court that the Constitution allows him to accept unlimited gifts from foreign governments." The far more palatable argument is the technocratic position DOJ has maintained: the political process, and not the courts, should resolve this dispute; and certain business transactions are not "emoluments," whatever those are.

We don't expect OLC to do a full about-face, and state unequivocally that the Foreign Emoluments Clause does not apply to the President. Rather, a bit of historical modesty would go a long way: simply acknowledge that there is a robust debate about whether elected officials are subject to this provision, and let the federal courts decide the issue.