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10/26/2017

Another Twist in the Emoluments Litigation
Michael Ramsey

Via Josh Blackman, apparently the President's lawyers now say that maybe the President isn't covered by the Foreign Emoluments clause, or at least they are not conceding that he is:

[T]he Department of Justice submitted a letter to Judge Daniels (SDNY) in CREW v. Trump. ... The important development is that the government is no longer conceding that the Foreign Emoluments Clause applies to the President. The Justice Department has carefully avoided this issue, only operating under the assumption that the clause did apply, but now the issue is stated clearly.

(Full text of the letter at the link).

RELATED:  From the editors of the Weekly Standard, Trump, Emoluments, and the Professoriate.  Key points:

The president’s most effective defender on the subject of foreign emoluments is not his own Justice Department but a pair of law professors: Seth Barrett Tillman, a law professor at Maynooth University in Ireland, and Josh Blackman, a professor at the South Texas College of Law. Tillman and Blackman have filed amicus briefs with each of the courts considering a foreign-emoluments suit. Their primary contention: that the Constitution’s ban applies only to persons holding office “under” the Constitution and thus only to appointed positions, not elected officials. While president, both George Washington and Thomas Jefferson accepted personal gifts from foreign dignitaries (a portrait of Louis XVI and a bust of czar Alexander I, respectively). When the Senate, in 1793, asked Treasury Secretary Alexander Hamilton to “lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments ... of every person holding any civil office or employment under the United States,” Hamilton’s submission included nothing about any elected official.

The Department of Justice argues that the term “emolument” “refers to benefits arising from personal service in an employment or equivalent relationship.” But Tillman and Blackman’s more sweeping case is, in our view, peremptory.

And more broadly:

What catches our attention about this case, though, isn’t so much the legal argument for or against the foreign emoluments clause’s relevance to the president. What most interests us is the extent to which judicial liberals and proponents of the “living Constitution” have suddenly turned into constitutional textualists. Ordinarily, of course, constitutional law professors at our most venerated institutions are happy to find all sorts of emanating penumbras and hidden principles in the Constitution...

Suddenly, liberal legal authorities are scrutinizing the actual text of the Constitution—and not just their favorite phrases in the First and 14th Amendments! Amicus briefs by law professors alleging Trump to be in violation of the clause are packed with discussions of the meaning of a single constitutional word: “emoluments.” What did it mean in Blackstone’s Commentaries? What did it mean in Adam Smith’s Wealth of Nations? One professor, John Mikhail of the Georgetown School of Law, undertook to produce definitions of the disputed term from scores of dictionaries from the 17th and 18th centuries.

I agree that the latter point is especially striking.  Many people are willing to embrace originalism when they think it takes them where they want to go.  That does not make them originalists, but it sharply undercuts the argument that originalists are outliers deploying a bizarre and unworkable methodology.  Will the historians and law professors who criticized originalism during the Gorsuch hearings attack the originalist premises of the emoluments litigation?  So far I have not seen them do so. 

(I should note, though, that Professor John Mikhail is unfairly singled out in the editorial, as he has been interested in recovering the Constitution's original meaning long before the emoluments litigation and is in no sense an opportunist here).