A Tension in Judge Wilkinson's Emoluments Clauses Dissent

If Washington’s conduct helps us understand the meaning of “emoluments,” it should also help us understand the scope of the Foreign Emoluments Clause.

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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 [1] purchased several plots of land from the federal government while President; [2] continued to export crops overseas; and [3] 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.

NEXT: Lawsuit Against Fox News Claims Cable Television Is Unprotected by the First Amendment

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  1. Or, and bear with me here, maybe the guy who claimed to be fighting a war in defence of the proposition that all men are created equal while owning slaves was not above a bit of hypocrisy the rest of the time either.

    1. I’m reading the Chernow Washington bio now. He’s after the War not yet President now.

      It’s remarkable how often he protested that the British want to enslave the colonies, and what a moral wrong that is.

      1. Sarcastr0, I have a great deal of respect for Chernow as a biographer. Still, in his Washington biography there is a lot left, maybe too much, of popular history’s adulation for the man. For a counterpoint, which seems grittier to me, likely at least as scholarly, and certainly fascinating and revelatory, read The Indian World of George Washington, by Colin G. Calloway.

        One thing that gets particularly interesting reference from Calloway is where Washington’s anti-British animus came from.

        1. Oh yeah. I also read Chernow’s Grant.

          Dude puts in the work, but he is thiiiis close to being a hagiographer. Over and over he notes flaws, only to immediately excuse them.

          I’ve taken enough history to never take it as the unvarnished truth.

          Ima be Washingtoned out for a while after this, but I’ll make a note of it.

          1. Imagine you could call before you the shades of Washington, Jefferson and Calhoun and force them to answer how they could own people at the same time they proclaimed the virtues of liberty. Calhoun might ask why you were bothering him. After all, he had explained his position in his writings and speeches. He would be right. Jefferson and Washington might hem and haw and try to make allowances for their conduct. That is one big difference between them and the other guy: they weren’t about to defend the institution.

            1. I’m quite willing to put Washington and TJ above Calhoun.

              I actually think they’re both still great men. Adulterated to be sure, but still great.

              1. Jefferson included his slaves in the mortgage of his property to maintain his life style and so they were denied freedom on his death. Washington freed his slaves on his death and even demanded witnesses outside his family on his deathbed to be sure his wishes were carried out. Both reputations are tarnished by owning slaves but I put Jefferson closer to Calhoun who at least didn’t suffer from hypocrisy.

                1. TJ was def. worse than Washington on this. Both were massive hypocrites on the issue, and their rationalizations all ring weak and inconsistent.
                  But they did not go so far as to defend the practice (on net – Jefferson…inconsistent, as I said). I find the Calhoun dive into the moral event horizon worse, even as I recognize we’re kinda playing with shades of black here.

              2. As I like to point out, you can’t separate your evaluation of a person from the age they were born into; People can only rise so far above their times and still be consequential.

                I pretty much guarantee that one or more things we do today and think perfectly ordinary will one day be seen as monstrous evils, and that there are people around today denouncing them as such, and being blown off as cranks.

                1. It’s a balance though. Presentism is a vice, but so too is the ‘no objective morality’ tack of completely letting people off the hook based on the time in which they lived.

                  I’d also note that there were lots of abolitionists in the time of the founding. Washington even said he agreed with them, but couldn’t afford to act accordingly.

                  Society changes; we’ll certainly be held as wanting in the future. Doesn’t mean you embrace it now; all you can do is your best, but that’s also what you are obligated to do.

                2. Eating animals probably when alternatives become acceptable.

                  I think Brett’s comment is on point. Even giants like Plato excused slavery, viewing it as a necessary evil to create a surplus that enabled civilization. Re Washington I don’t recall him defending slavery even though he owned slaves. Very few of the Founders were vocal supporters and a number of them like Washington freed their slaves on their death.

                3. I agree, but I also don’t think one should confuse the revolutionary war era with the Civil War era. People at the time of the American Revolution were more likely to have misgivings about slavery and see the contradiction between liberty and owning slaves. Not enough to overpower its entrenched nature in the south (but enough to lead to the first steps of abolition in the north), but it was as vehemently defended as it was when things got closer to the Civil War.

            2. Jefferson always seemed the most capable of cognitive dissonance. Calhoun would have rejected your premise. He is an individual who argued that he Declaration of Independence was incorrect when it posited all men are created equal. Washington, on the other hand, seems the most likely to have conceded that he was a hypocrite. I get the sense that, late in his life, he recognized the inconsistencies in his positions and began to feel that he shouldn’t own slaves. On the other hand, he recognized the benefits he got from slavery and wasn’t prepared to give those up.

              Jefferson, however, seemed the one who would argue that slavery was wrong but find all sorts of ways to make excuses (that it was a necessary evil, lesser of evils, etc.).

    2. It’s a difficult thing — fathers also “owned” their sons up to age 21 and could literally sell them into an indentureship. That happened to Ben Franklin and is why he fled Boston — yes, Ben Franklin essentially was a fugitive slave….

      1. Sons were rather treated differently than slaves…

  2. Judge Wilkinson is the greatest jurist in the country and should be on the Supreme Court.

    1. I’ll limit my fanboyness to “greatest constitutional jurist in the country.”

      1. I suppose you’ll be first in line to tear down statues of George Washington…

        1. The great anti-emolument riots of 2020 are gonna be lit.

        2. Wilkinson was defending President Washington’s behavior, or at least not criticizing it.

  3. I don’t understand why the judges have no idea of the meaning of Emolument. Wilkinson states this several times (“whatever that is”, “whatever emoluments are thought to be”, etc).

    An emolument is a payment of money to an office bearer, in the form of a flat fee not dependent on services rendered. Another word for it is honorarium, it is a form of gratuity. The specific difference between an honorarium and an emolument is that an emolument is tied to an appointed office, such as secretary of a club or association. Both are typically tied to personal expenses paid by the receiver of the payment. In the constitutional context, “presents and emoluments” are the forms of payments associated with “offices and titles”. Presents being gratuities in kind, while emoluments are gratuities in cash.

    By definition, payments for services rendered are not emoluments or presents.

    1. The plaintiffs in these suits are suggesting a much broader interpretation. Wilkinson’s point is that, even if you grant them that, the court still shouldn’t grant them the relief they’re seeking.

    2. Because he isn’t as certain as you are about what the word meant 200 years ago. The fact that a federal district judge, the plaintiffs, and a bunch of academics also disagree with you, gave Judge Wilkinson pause. As between his humility and your fake incredulousness, I’ll follow the Judge.

      1. Moreover, like most such absolute pronouncements, even when they’re correct they’re not necessarily illuminating. Let’s assume that it’s indisputable that a foreign country buying something from an officeholder does not constitute an emolument to the officeholder. But what if the purchase price is far above market value? Or what if the purchase price is for market value but it was purchased solely for the purpose of getting money to the officeholder? (For example, buying the officeholder’s book in bulk, or gratuitously reserving blocks of rooms at the officeholder’s hotel.) Saying “Oh, a payment for goods or services rendered isn’t an emolument” doesn’t really do anything to address these cases.

        1. Where does the term “bribe” come into this, then? Isn’t that what you are describing, rather than “emolument”?

          1. A bribe requires an implicit or explicit quid pro quo. An emolument does not.

    3. Fozzy, how do you explain Article II Section 1 Paragraph 7? It says the President will receive a Compensation but no other Emolument. If his salary wasn’t considered an emolument, why the other?

      1. Voize: No, that’s just it. The President’s so-called salary (note it is not called a salary in the US Code) is in fact an emolument. It is the gratuitous payment he is given as a result of holding the office of President. During that time he may hold no other state or federal office which provides an emolument.

        David: It does nothing to address the cases you describe because those cases do not involve emoluments. It would be easy for you to disprove me, simply by finding one example (pre-Trump presidency please) of the word being used without being connected to an office of profit or trust.

  4. Imagine the outcry if Trump *didn’t* charge foreign diplomats to stay in his hotel, or if he excluded them.

    If he didn’t charge he would be accused of attempting to bribe them, and if he excluded them, it would be some sort of discrimination violation and/or innkeeper violation.

    1. Or, and this is another crazy idea, he could just not do all sorts of business while being president.

      1. He doesn’t. But if you truly believe Trump is running his businesses while also acting as POTUS, nothing will convince you. Orange man bad, I get it..

  5. And why is there no mention of how Ted Kennedy literally went to the Soviets and tried to get them to swing the 1984 election. We know this to be true because it was in the Soviet archives…

    1. Ed, please. Ted literally talked to the Soviets with Reagan’s permission.

      Unless you’re referring to that debunked Forbes memo.

      Of course you’re talking about that.

  6. How is the purchase of a lot in the newly created District of Columbia a “gift,” from government? Washington apparently did that to encourage others to do likewise, by the way, to get the ball rolling on the new national capital. Or is there some other Washington business I don’t know about being referred to?

    Also, I was under the impression that Washington while president left the operation of Mt. Vernon in the hands of an overseer, and took little or no supervisory interest. Biography does seem to record that after his second term, when Washington returned to Mt. Vernon, he was dismayed to discover the condition it was in, and reckoned he had suffered a notable loss. The story is probably more complicated than that—might even be the opposite of that, for all I know (the sainted Washington so long held up by history ought to get skeptical treatment)—but the burden is on folks attacking Washington as “lawless,” to supply the story in complete detail.

    1. “How is the purchase of a lot in the newly created District of Columbia a “gift,” from government?”

      I suppose in the same way somebody paying for a hotel room would be an emolument; Not at all, unless the price paid wasn’t the market rate.

      1. Brett, is there not all the difference in the world between paying, and being paid?

        1. No. Consideration flows both ways in either case.

  7. Washington’s lawlessness was only discovered in late 2016–as a necessary intellectual precursor to litigation against President Trump.

    Nothing shall stand in the way of attacking Trump. All shall be sacrificed to that singular goal. Everything done must be torn at somehow, and if all else must fall first, so be it*.

    * Surprisingly powerful explanatory and predictive power, the sign of a solid theory.

  8. As a non-lawyer, what I don;t understand is why more transactions considered emoluments. For example, if a foreign official only flies in Boeing aircraft and the politicians owns stock in Boeing, or a foreign official comes to the states and only purchases Exxon gas and the politician owns Exxon stock, how is that different? What if the foreign official takes a drug made by Pfizer, talks about it on TV and the price spikes and you have Pfizer stock? Why isn’t that an emolument?

    1. Because that’s not what the word means.

      An emolument just means that somebody supplements a position’s pay. Which can create a conflict of interest, so it’s prohibited accepting one, but it’s still a different bad thing than a bribe or a kickback.

  9. The framers were so worried about corruption in their new government that they included two separate clauses proscribing it. Yet they exempted the most powerful federal figure from that proscription. You’ve got to love originalism.

    1. Except neither of those clauses bar all possible forms of corruption, so the exclusion of the president from being covered by the foreign emoluments clause is not half as odd as you think.

    2. They didn’t exempt the President. Nobody is arguing that the President is exempt from the Emoluments Clause.

      1. From the article:

        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.

        I don’t know how relevant it is to these cases, but the argument is out there that the foreign emoluments clause does not apply to elected officials (the president and members of congress).

        See The Foreign Emoluments Clause

        As I understand it, the DOJ has changed it’s position on this issue several times.

        1. I acknowledge my error. I was focused on Judge Wilkinson’s dissent so much that I had forgotten about the point of the original post.

    3. Yeah, that’s what I’ve always thought was the silliest part of the Blackman/Tillman argument. They can’t explain any reason why the founders would have wanted to exclude the president from the ambit of this rule; it’s nonsensical.

      We know they were worried about foreign influence on the president; hence, the natural born citizen rule. And yet here, all of the sudden, they were like, “Sure, let the president be paid by foreigners.”

  10. Justice Thomas nailed this in another case: It is all about Orange Man Bad.

    1. Oh come on, Commenter. OMB is an empty knee-jerk defense that allows one to ignore the merits. In fact, it allows you to ignore all judicial cases you don’t like and convert them into nothing more than additional validation of the other side being liars.

      At it’s core, this isn’t about Trump at all, but about how originalist scholarship should work. Not being an originalist, I don’t have a dog in this fight, but it’s certainly not something to be dismissed as partisan lies.

      1. Sarcastr0….C’mon guy. Be serious. If it wasn’t POTUS Trump, this case would a) never have been filed, and b) never made it this far. Justice Thomas called it for what it was.

        1. I don’t believe that. Your argument is an appeal to…a baseless counterfactual. That’s evidence of nothing. You can’t use your partisanship to bootstrap your way into a partisan conclusion. Well, you can, but it won’t be very convincing to anyone other than yourself.

          I do not believe that all these cases that have been going against Trump are judges acting in bad faith. Am I sure? And I’m sure there are some bitter and unprofessional judges out there. But such statements require proof, and I’ve seen literally none from the OMB crowd.

          I don’t think emoluments have become a thing due to animosity about who Trump is. His actions have been extraordinary in his not caring about conflicts. I know my issues with his constant conflicts of interest and profiting off the office are of constitutional moment and have nothing to do with my party of choice.

          1. I suggest you take a long hard look in the argumentative mirror before you continue casting stones.

        2. Of course this case would have never been filed if it wasn’t for Trump, because no other President would have considered pulling this kind of sh*t even in their worst fever dreams. Even Mike Pence, who is probably an even worse person to have as President than Trump, would never do such a thing.

  11. A very strong argument, but you neglected to address the far more persuasive counterargument: “Orange Man Bad”

  12. Dear Professor Blackman, begging your pardon (and paraphrasing George Orwell), your argument is so remarkably silly that only a lawyer could make it.

    You’re arguing that the President can’t get emoluments from the federal government or the states, but he *can* get emoluments from foreign governments.

    And if Washington does something that means its not illegal.

    Well, in the great debate over federal central banking, do you think the advocates of the pro-bank position simply said “Washington believed a federal central bank was constitutional,” and rested on their laurels, having met their burden of proof? No, during the tumultuous debate on this subject, the ultimately-victorious pro-bank side was obliged to draw on all sorts of arguments based on the text, structure, context and history of the relevant constitutional clauses. They didn’t just say “Washington said it, I believe it, that settles it,” which seems to be Prof. Blackman’s approach.

    If Washington took gifts from the French government, maybe he was acting illegally, but knowing himself free of prejudice in favor of the revolutionary French regime, he thought it was a minor peccadillo which nobody would fuss about (as appears to be the case).

    1. (“emoluments from the federal government *in addition to* the fixed salary,” I mean)

    2. Also, the Founders were by modern standards quite “xenophobic,” especially as regards the Presidential office. Visions of foreign corruption danced in their heads. They seemed to have the idea that there needed to be safeguards to prevent American officials – especially the President – from being tainted by foreign influence. Such was their “paranoia” that they only let natural-born citizens be President (or Vice President).

      Are we to think that these same Founders, while preventing other federal officials from taking gifts or money, etc. from foreign countries, decided to let the President do it?

      1. (Exception: A foreign-born person can be President if (s)he was a citizen at the time of the the Constitution)

  13. I honestly can’t believe the anti-Trump emoluments litigation circus is still performing. It’s an abuse and mockery of our legal system.

    It’s pathetic that so many resources, private and public, are being wasted on a patently ridiculous idea that should have never been shared (let alone seriously advocated) outside of the hyperpartisan academic inner circles from which it emanated.

    What’s worse is seeing the make-believe it engenders among the legal community.

    I’m thankful for the well-respected legal minds who have taken on the burden of giving this sideshow serious attention to correct the record and disentangle the nonsense. It’s just a shame such responses are even necessary.

  14. The majority’s opinion in In re Trump is so obnoxious. Pretending like they’re some kind of unbiased noble lords disconnected from the petty partisanship that fuels “editorial writers and political speechwriters.” The majority couldn’t be more pretentious.

    Good to see the dissent saying what needs to be said.

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