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08/06/2017

Reactions to Tillman and Blackman’s Amicus Brief on Emoluments and the President
Michael Ramsey

Gautham Rao (American University, History) & Jed Handelsman Shugerman (Fordham) at Slate: Presidential Revisionism: The New York Times published the flimsiest defense of Trump’s apparent emoluments violations yet. From the introduction:

The Framers of the Constitution were deeply committed to preventing the corruption of their new republic. In fact, their anger over the corruption of the British monarchy and Parliament was a driving force behind the American Revolution. So the Framers built systemic safeguards to prevent American officials from falling prey to corruption.

...

Joshua Blackman and Seth Barrett Tillman, authors of an amicus brief defending Trump [in the emoluments clause litigation], assert counterintuitively that [the emoluments] clause does not apply to the office of the president. Why? They articulated their position in the New York Times last week: First, they argue that the office of the president is not “an office under the United States.” Second, they point out that Presidents Washington and Jefferson accepted a handful of diplomatic gifts. (For Washington, it was barely a literal handful: a key and a painting.) Blackman and Tillman claim we should pay more attention to what presidents did than what the Constitution plainly states. They are wrong on both points.

[substantial historical analysis follows]

And Brianne J. Gorod at Take Care Blog: A Little More on Alexander Hamilton and the Foreign Emoluments Clause. From the introduction:

Earlier this month, I wrote a piece for this blog on the debate about whether the Foreign Emoluments Clause, which applies to all persons “holding any Office of Profit or Trust” under the United States, applies to the President.  As I explained in that piece, there’s a “big problem” with one of the major pieces of documentary evidence relied on by those who argue that it doesn’t apply.  My colleague Brian Frazelle and I have now done a little more digging, and the problem with that evidence has gotten even bigger.

To briefly recap: most people agree that the Foreign Emoluments Clause applies to the President, but a few—determined to engage in an uphill battle against both the language and purpose of the Clause—maintain that it doesn’t.  Seth Barrett Tillman, a leading proponent of this cramped understanding of the Clause, relies on a number of pieces of evidence in support of this claim (Gautham Rao and Jed Shugerman ably demolish much of that evidence here), but one of the major pieces of evidence on which Tillman relies is a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton.  According to Tillman, that list “did not include any elected officials in any branch.”  Thus, he says, the document shows that “officers under the United States are appointed,” and thus the President—an elected official—is “not an officer under the United States” and is not covered by the Foreign Emoluments Clause.  In the New York Times, for example, Tillman wrote that this document was one of “three good reasons to believe that [the Clause] does not” apply to the President.  

As I discussed in my previous post, Tillman’s document is not the only one that’s relevant to understanding Alexander Hamilton’s views on who was, and was not, an “officer under the United States.”  In fact, an “abbreviated version” of the list of officeholders and their respective compensation was printed in the American State Papers (a collection of legislative and executive materials from early in the nation’s history), and that “abbreviated version” does include the President.    

Why the two documents, and what to make of them?  In an amicus brief he recently filed in litigation brought by CREW and others in the Southern District of New York, Tillman acknowledged the existence of this American State Papers document, but he dismissed it as “an entirely different document (but bearing a similar name).”  He denigrated its significance on the ground that it “was not signed by Hamilton” and is “undated.”  It was, he says without any supporting evidence, explanation, or citation, “drafted by an unknown Senate functionary.”  Ultimately, Tillman concedes that it is “probative of the legal meaning of Office . . . under the United States,” but not as probative as the other document that does not list the President.