Trump's Emoluments Opinion as an Ideological Statement
Michael Ramsey
On further reflection, I think the Trump legal team's statement on the foreign emoluments issue is even more remarkable than I first thought. As noted (via Josh Blackman), the statement opens its discussion of the foreign emoluments issue by declaring:
The scope of any constitutional provision is determined by the original public meaning of the Constitution’s text. [Citing Scalia & Garner, Reading Law and Scalia, Originalism: The Lesser Evil]. Here that text, understood through historical evidence, establishes that foreign governments’ business at a Trump International Hotel or similar enterprises is not a “present, Emolument, Office, or Title.”
This would not be a surprising passage in an article written by an originalist scholar (although I, for example, have never made so strong a claim -- note that it says "is" rather than "should be"). This statement, however, is written by lawyers with the purpose to persuade a wide range of readers. Lawyers, unlike law professors, commentators and (some) judges, typically do not bind themselves into one particular mode of interpretation. Rather, to the extent possible, they argue the full range of Philip Bobbitt's "modalities" of constitutional interpretation, including but not limited to original meaning. If a lawyer omits one of the modalities, it's probably because there's no plausible argument there.
Here, however, we have what I can only describe as an ideological statement (I mean that in a descriptive and not negative way). It picks a side in the debate over methods of constitutional interpretation. Moreover, it picks a contested side, and one likely to be especially unpersuasive to the President-elect's principal critics (such as Laurence Tribe). It does not need to do that to make its case, and its not clear its case is helped by taking such an approach.
I conclude, therefore, that the statement has a purpose beyond merely persuading readers on the emoluments issue. Its purpose is to persuade readers that originalism is the correct way to resolve the issue, or at least to show that the Trump administration believes that it is. Since taking such a strong position is not necessary to resolving the emoluments issue, the point of the statement must be more than the narrow question of emoluments.
Thus the effect (and, I think, the purpose) is to associate Trump with originalism (and, specifically, with Justice Scalia). It's an attempt to influence the legal culture (what Larry Solum calls the "gestalt" of constitutional interpretation) in the direction of originalism.
I'm not sure why they would take this course (although I think it suggests that they are not too worried about the emoluments issue in itself, instead viewing it as an opportunity to make a broader point). It may be laying the groundwork for the pending Supreme Court nomination, or perhaps it's just a nod to conservative supporters. Or perhaps it is the first step in a future campaign to materially move the legal culture in an originalist direction.