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George Washington and the Emoluments Clauses

The Practices of our First President Suggest That President Trump is not violating the Foreign and Domestic Emoluments Clauses

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Today, President Trump offered comments about the Emoluments Clause. Here is a rough transcript of his remarks:

Other Presidents, if you look, other presidents were wealthy. Not huge wealth. George Washington was actually considered a very rich man at the time. But they ran their businesses. George Washington, they say George Washington had two desks. A presidential desk and a business desk. I don't think you people with this phony Emoluments Clause. . . .

His jab at the "phony Emoluments Clause" has garnered the most attention. But his reference to the practices of President Washington is far more significant.

Over the past two years, Professor Seth Barrett Tillman and I have written extensively about the practices of President Washington. We contend that the practices of our First President suggest that President Trump is not violating the Foreign and Domestic Emoluments Clause. The former provision does not apply to elected officials like the President, and the latter provision does not prohibit business transactions. We have also submitted many amicus briefs on this issue.

Here are some of our recent writings on this issue:

  1. The Congressional Research Service Has Shifted Its Position on Whether the Foreign Emoluments Clause Applies to the President, The Volokh Conspiracy (Oct. 3, 2019).
  2. 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, The Volokh Conspiracy (Oct. 4, 2019).
  3. Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?, Volokh Conspiracy (Aug. 3, 2018).
  4. The 'Resistance' vs. George Washington, Wall Street Journal (Oct. 15, 2017).
  5. The Emoluments Clauses litigation, part 2 — the practices of the early presidents, the first Congress and Alexander Hamilton, Washington Post (Sept. 26, 2017).
  6. Yes, Trump Can Accept Gifts, New York Times (July 13, 2017).

I hope to have more to say about this topic with Professor Tillman later this week.