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10/22/2017

Josh Blackman on the Emoluments Oral Argument
Michael Ramsey

At Josh Blackman's Blog: Analysis of Oral Arguments in CREW v. Trump.  From the introduction:

On Wednesday, October 18, the oral arguments in CREW et al v. Trump began at 10:30 a.m. in courtroom 11A. The right side of the courtroom was packed with press, and the left side was filled with attorneys affiliated with the case. An overflow room was opened on the 26th floor for spectators to watch on a closed-circuit feed. Brett Shumate argued in support of the Government’s motion to dismiss.  (Shumate was featured in a recent NLJ profile for his defense of the Government in the Emoluments Clause case, the DACA litigation, and the Sanctuary City suits). Deepak Gupta argued in opposition to the Government’s motion to dismiss, and Joseph Sellers provided a brief argument about how discovery would proceed if the Plaintiffs prevailed. With only a five-minute recess, the argument stretched until about 1:10 p.m. Judge Daniels should be commended for his excellent preparation—he came engaged and ready to ask probing questions of both sides. The Court announced that a decision would be issued in about thirty to sixty days.

Neither a transcript nor an audio recording is currently available. This post is based on my notes...

Professor Blackman then summarizes the key arguments (his headings): Article III Standing, Zone of Interest, Jurisdiction and Political Question, Meaning of Emolument, and Discovery if Motion to Dismiss Denied.

On "Meaning of Emolument" he reports:

Shumate at several junctures referred to the “original public meaning of emolument,” which included profits that arise from the provision of services connected to an office. Judge Daniels—who did not reference founding-era dictionaries, corpus linguistics, or any historical practice for that matter—offered a different definition of “emolument.” Namely, “compensation.” He derived that definition from the Domestic Emoluments Clause, which links the President’s “emoluments” to his salary or compensation. The Government rejected this definition as too broad, but Judge Daniels continued to push this definition with a hypothetical: if a foreign government offered the President $1 million for signing a treaty, how would it be characterized? The Government maintained that such an offer would be a “present,” which is also forbidden by the Foreign Emoluments Clause, but would not be an “emolument.” Judge Daniels dismissed the reference to a “present.” Seth and I had offered a different answer to this question in our briefs: because of the quid-pro-quo nature of the offer, it would not be a present, but would be a “bribe,” which is an enumerated ground for impeachment. Whether or not the President follows through, and signs the treaty does not matter, it is still a bribe. It is entirely predictable what sort of headlines would result from a DOJ lawyer using the word “impeachment”  in court, so Shumate’s answer is understandable, although not satisfying.