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09/20/2017

Tillman and Blackman Strike Back on Emoluments [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (United States District Court for the Southern District of New York) on SSRN.  Here is the abstract:

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote: 

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. 

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything. 

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

The full motion, to which the above document is an exhibit, is here: Amicus Curiae Scholar Seth Barrett Tillman's and Proposed Amicus Curiae Judicial Education Project's Motion for Leave to File Response to Amici Curiae by Certain Legal Historians (filed by Robert Ray [Thompson & Knight], Josh Blackman [South Texas Law School] and Carrie Serevino [Judicial Education Project]).  It begins:

On June 16, 2017, undersigned counsel for Amicus Curiae scholar Seth Barrett Tillman submitted a motion for leave to file an amicus brief on behalf of Tillman [ECF No. 37] in support of the Defendant, which the Court granted on June 28, 2017 [ECF No. 39]. On August 11, 2017, several Legal Historians filed a motion for leave to file an amicus brief in support of the Plaintiffs [ECF No. 70], which this Court granted on August 15, 2017 [ECF No. 73]. ...

 The Legal Historians allege that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material” [ECF No. 70-1, p. 22 n.80]. Counsel for Plaintiffs has endorsed this allegation. Because the authenticity and provenance of this document bears directly on the question of whether the President holds an “Office . . . under the United States,” and on the meaning of the Foreign Emoluments Clause, Tillman and proposed amicus JEP respectfully request leave to respond to this allegation. The proposed response, along with supporting Exhibits A–R, which are attached hereto as Exhibit 1, demonstrate that the Legal Historians are plainly wrong. The so-called “key Hamilton manuscript” was not signed by Alexander Hamilton, but rather is a scrivener’s copy drafted a
generation later.

And further:

In 1792, Alexander Hamilton was directed by the Senate to provide a list of the “emoluments” of “every person holding any civil office or employment under the United States.” He sent a response in 1793, which we refer to as The Complete Report. It did not list the President, Vice President, or other elected officials. The 1793 Complete Report is a contemporaneous construction of substantially the same language at issue in the Constitution’s Foreign Emoluments Clause. There is a second document: The Condensed Report. That document was drafted based in large part on The  Complete Report. The Tillman Amicus (“Amicus”) brief explained that this latter report was not signed by Alexander Hamilton, it was not dated, and it was drafted by an unknown Senate functionary. In other words, its precise provenance remains unknown in the sense that we simply cannot identify the specific person who drafted it.

The Brief of Amicus Curiae by Certain Legal Historians contends that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material.”  The Legal Historians allege that that The Condensed Report was signed by Hamilton and it is equally authentic with the original document, The Complete Report.  The Legal Historians Brief is plainly wrong. The Condensed Report is nothing more than a scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death. In ruling on whether the President holds “Office . . . under the United States,” this Court should rely on The Complete Report, which was signed by Hamilton, and not the unsigned and undated Condensed Report.

As the brief indicates, this filing is in response to a series of attacks (in court and out, some of them noted on this blog [see here]) challenging Professor Tillman's initial description of the Hamilton documents.

Here is my post on the original Blackman/Tillman amicus.  That brief argues that the emoluments clause, Article I, Section 9,  does not apply to the President because the presidency (like other elected positions) is not an "office of Profit or Trust under [the United States]" as specified by the clause.  Hamilton is said to have agreed -- or not, depending on which document one favors.

I don't have an opinion on the merits (except that Professor Tillman and his counsel Professor Blackman, both of whom I know personally, sound very confident, and they are scholars I hesitate to disagree with).  My interest is principally the extent to which the plaintiffs, their counsel, and their academic supports, have become extraordinarily focused on the originalist arguments in this litigation, to the extent of near-obsession with what strikes me as a pretty obscure document even by originalist standards.  If originalism were just a quirky outlier in constitutional argumentation (as various people asserted during the Gorsuch hearings), it really should not matter if Professor Tillman is right about this obscure document.  That the plaintiffs' side has become so obsessed with it shows, to my mind, that they know originalist arguments have force -- especially in an area where there is no Supreme Court precedent -- and they are afraid of the Tillman/Blackman argument.

UPDATE: At his blog, Josh Blackman has more excerpts and strongly worded commentary: New Filings in the Emoluments Clause Litigation.  He begins:

The litigation concerning the Foreign Emoluments Clause demands a careful study of the text and history of the Constitution. The Plaintiffs and their amici (including a group of self-styled “Legal Historians”) have attempted to discredit the amicus brief I filed on behalf of Seth Barrett Tillman. On the blogosphere and in filings with the Southern District of New York, they charged that we mislead the court about a document called The Condensed Report. They assert that The Condensed Report was signed by Alexander Hamilton, but because it undercuts our theory, we misled the court about its provenance.

Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton. And had the Plaintiffs and their amici asked an actual expert who specializes in the works of Alexander Hamilton (we asked three), they would have learned that the document was drafted after Hamilton’s death.

And further:

One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not). Here are excerpts from his affidavit that demonstrate the embarrassing error made by Plaintiffs and their Amici:

15. Historical documentary editors regularly face the task of identifying the authorship and dating documents in determining what documents to publish in their volumes, what documents should be relegated to annotation, and what documents should be excluded altogether. I have been making these kinds of decisions for almost fifty years. After examining the two reports, it seems clear to me that one interpretation is possible. I agree with the editors of the Hamilton Papers that The Complete Report is an original Hamilton document while The Condensed Report is a later copy.

16. Both lengthy reports were written by scriveners. The Complete Report was signed by Alexander Hamilton himself. I base this opinion in substantial part on my professional judgment as to what Hamilton’s signature looked like. The Condensed Report also contains the words “Alexander Hamilton” where a signature might appear, but this “signature” was clearly not written by Hamilton himself. Rather, the words “Alexander Hamilton” were written by the same scrivener who transcribed The Condensed Report. Endorsements or marginalia on both documents assist in determining the genesis of The Condensed Report. The markings on The Complete Report in pencil indicate that the report was “To be condensed & printed. See page Journal 441 & 497.” The page numbers refer to the relevant dates of 7 May 1792 and 27 February 1793 located in the 1820 printed edition of the U.S. Senate Journal published by Gales & Seaton. The back of The Condensed Report is docketed: “2 Cong No. 34 2 Sess. Condensed.” Beneath the word “Condensed” appears: “Report from Secretary of the Treasury with names & compensation of all Officers in the civil employ of the Government, 1793 Feb 27—Series 10 No. No. [sic] 34 Miscellaneous.” A separate notation indicates: “Condensed by Order of the Secretary of the Senate.”

17. These markings clearly indicate that sometime after 1820 (probably near 1833), the Secretary of the U.S. Senate ordered that a condensed version of The Complete Report be made. Transcribed by a clerk of the Senate, The Condensed Report was then printed in the first miscellaneous volume of American State Papers, published in 1834. Hamilton was long since dead by 1820. Thus Alexander Hamilton had no direct connection with The Condensed Report.

The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading. And it was one designed solely to attack Tillman’s credibility.

And a challenge to the Legal Historians:

But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim [regarding Hamilton's signature on the second document] ... and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).

A further thought: To me this episode indicates how originalism can get beyond concerns over "law office history" (and, as my colleague Mike Rappaport has called it, "history office law").  Exploring the original meaning is a dynamic and adversarial process, whether in litigation or in scholarship.  The project does not turn on the adequacy of any particular contribution. The hope is that the sum of the contributions will lead to a clearer understanding.