The Volokh Conspiracy
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[This post is co-authored with Professor Seth Barrett Tillman]
Last week, the en banc Fourth Circuit decided two related cases in the Foreign Emoluments Clause litigation. First, In re: Donald Trump denied the official-capacity defendant's petition for a writ of mandamus. (The official-capacity defendant is the United States, which is represented by the Department of Justice.) Second, District of Columbia v. Trump dismissed the individual-capacity defendant's interlocutory appeal for lack of jurisdiction. (The individual-capacity defendant is the President, qua as a government official, represented by the President's private counsel.) Both cases divided the en-banc court 9-to-6. Judge Motz wrote the majority opinion in both cases. Judge Wilkinson wrote the principal dissent in the official-capacity case. Judge Niemeyer wrote the principal dissent in the individual-capacity case. We filed amicus briefs in both the official-capacity and the individual-capacity cases.
We will have much more to say about these decisions in due course. Here, we want to focus on a tension in Judge Wilkinson's erudite dissent. Judge Wilkinson's dissent, as does Judge Motz's majority opinion, takes the position that the Foreign Emoluments Clause extends to the presidency. However, Footnote 2 from Judge Wilkinson's dissent cites President Washington's conduct, and an analysis of that conduct supports the opposite conclusion. Specifically, Washington's acceptance of foreign state and diplomatic gifts suggests he did not think he was bound by the Foreign Emoluments Clause.
Footnote 2 begins:
What's more, plaintiffs' interpretation of the [Emoluments] Clauses would necessarily brand George Washington a repeat violator—a conclusion that ordinarily speaks more to flaws in a given constitutional interpretation than it does to the first President's conduct. See American Legion v. American Humanist Ass'n, 139 S. Ct. 2067, 2087-89 (2019).
In this litigation, the Plaintiffs have argued for a broad definition of "emolument." They argue the phrase extends to any benefit, profit, or gain. If that standard were correct, then President Washington was a lawbreaker. We agree emphatically with Judge Wilkinson's rejoinder. Courts should pause before ruling that Washington violated the Constitution he helped to define.
Next, Judge Wilkinson looks to three heads of Washington's conduct. This conduct, he argues, rejects the Plaintiffs' broad reading of the phrase "emoluments."
Washington likely  purchased several plots of land from the federal government while President;  continued to export crops overseas; and  received, without consent of Congress, numerous diplomatic gifts from France.
The first head of conduct informs the meaning of the phrase "emolument" in the Domestic Emoluments Clause. The second head of conduct could possibly inform the meaning of the phrase "emolument" in the Foreign Emoluments Clause. In other words, if the Plaintiffs were correct about the broad meaning of "emoluments," then Washington's business transactions would have rendered him a lawbreaker. We agree that Wilkinson's analysis works for the first head of conduct: President Washington purchased land from the federal government in the nation's new capital.
As to the second head of Washington's conduct, evidence that President Washington sold crops to foreign governments might also support Wilkinson's narrow definition of "emoluments." However, we have not found any concrete evidence that Washington sold crops to foreign governments, in contrast with his simply "export[ing] crops overseas" to private merchants.
The third head of conduct does not support Wilkinson's position with regard to the meaning of the word "emolument" in the Foreign Emoluments Clause. The Foreign Emoluments Clause prohibits covered office-holders from accepting both "emolument[s]" and "presents" from foreign states. Thus any state or diplomatic gift is squarely precluded. Moreover, these gifts are prohibited even if such diplomatic gifts are also considered "emoluments." (We think the Plaintiffs' capacious definition of "emoluments" is especially untenable because it would swallow up, and render superfluous the additional the prohibition involving "presents.")
In our brief, we explained that Washington's acceptance of these foreign state and diplomatic gifts–all done absent congressional consent–suggests that he did not think himself bound by the Foreign Emoluments Clause. Our understanding of these events is confirmed by the fact that neither Washington's contemporaries nor subsequent academics, in law, history, and other fields, faulted Washington's conduct. In short, it is not just plaintiffs who would "brand George Washington a repeat violator." Rather, the same implication flows from Judge Wilkinson's dissent: President George Washington's conduct in office was lawless.
Again, there is a tension. Judge Wilkinson, and all the other members of the Fourth Circuit, concluded that the President is subject to the Foreign Emoluments Clause. (We disagree with this position.) If that conclusion is true, and if Washington did accept "numerous diplomatic gifts from France" (including valuable gifts), then Washington was "a repeat violator" of the Constitution. Wilkinson accused our first President of doing exactly what the Plaintiffs had accused Washington of: violating the Foreign Emoluments Clause.
Our brief resolves this tension: Washington's conduct should help us understand both the meaning of "emolument" and the scope of the Foreign Emoluments Clause. First, the benefits from the land transactions were not emoluments. Second, the President could accept foreign state and diplomatic gifts because he was not covered by the Foreign Emoluments Clause. It is problematic to defer to part of Washington's conduct, but disregard other parts. The better approach is to consider Washington's conduct as a whole: he properly understood both the meaning of "emolument" and the scope of the Foreign Emoluments Clause. Our position explains why Washington's contemporaries voiced no complaints and why subsequent academics, in law, history, and other fields, did not assert that Washington behaved lawlessly. Washington's lawlessness was only discovered in late 2016–as a necessary intellectual precursor to litigation against President Trump.
We found one other nit in Wilkinson's otherwise exemplary decision. He offered the following analysis to support the proposition that the President is subject to both the Foreign and Domestic Emoluments Clauses:
Congress may also impeach a President for his non-compliance with the [Emoluments] Clauses. As Alexander Hamilton observed, the proper subjects for impeachment "are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust." The Federalist No. 65, at 338 (Hamilton). It is hard to think of a more apt description of an Emoluments Clause violation. The Framers said as much. Randolph recognized that if the President is "discovered" to have received forbidden emoluments, "he may be impeached." 3 Elliot's Debates 486; see also 1 Annals of Cong. 661 (1789) (remarks of Rep. Stone) (identifying impeachment as Domestic Emoluments Clause remedy).
No one doubts that the Domestic Emoluments Clause applies to the President. Indeed, it only applies to the President. If the President knowingly accepted prohibited emoluments from the States or the United States, then he could be impeached. But the citation to the Annals of Congress does not discuss such prohibited conduct. Rather Representative Stone was merely discussing the appropriate compensation for the President. Here is the relevant passage:
Mr. Stone thought the President ought to be at liberty to live in any style he thought proper, and that the House ought to give him such compensation as they thought his services merited. If you furnish him with a house, horses, and carriages, you declare that this is his house, the horses, and the carriages which he shall use. There is certainly some degree of indelicacy in this; if he was a private gentlemen, he would be at liberty to use such as he liked best. Suppose he dislikes them, will not have them, he is guilty of a breach of the law, is it intended by the House to impeach him for it? I apprehend it is not, for no part of the constitution gives us a right to dictate to him on this head. He would rather let the President set the example of how to live, then see the Legislature direct him. Economy is by no means disadvantage to the United States; if the President chooses to live in an economical manner, we ought not to prevent him.
We disagree with Judge Wilkinson's characterization. This passage did not "identify impeachment as Domestic Emoluments Clause remedy" in any meaningful sense. Rather, Representative Stone said it would be improper to impeach the President if he chose not to avail himself of certain luxurious benefits provided by Congress as part of his regular compensation. Stone's comments were sarcastic, if not comic. They were not a free-wheeling disquisition on whether the impeachment power extends to violations of the Domestic Emoluments Clause.
We have not seen this passage cited anywhere in the litigation. Indeed, we haven't seen this citation anywhere in the literature. We flag it here so other courts and commentators do not make the same mistake. We have experienced a common occurrence during the three-years-plus of Emoluments Clauses litigation: once an incorrect factual claim enters the literature, no matter how unsupported, it becomes a permanent feature of the academic and judicial landscape unless it is promptly criticized. For that reason, we put down our intellectual marker here.
Judge Wilkinson's dissent is the first judicial opinion that has engaged these important historical points. The District Court ignored primary sources about President Washington's land transactions with the federal government, and ignored the foreign state and diplomatic gifts altogether. Indeed, we are grateful the dissent agrees that the French gifts were "diplomatic gifts." Our critics have challenged the provenance of these gifts; they have argued that the gifts were personal presents. Now, six judges of the Fourth Circuit have signed onto our reading of the gifts. And these historical facts are now well placed to be discussed in any future Supreme Court review of the Fourth Circuit's proceedings.