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Josh Blackman & Seth Barrett Tillman on the Maryland Emoluments Decision
Michael Ramsey

At  Volokh Conspiracy, Josh Blackman & Seth Barrett Tillman (guest blogging):  Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?  From the introduction:

Until recently, no court had opined on the validity of Washington's practices with respect to the Emoluments Clauses. The Honorable George B. Daniels of the U.S. District Court for the Southern District of New York concluded that the case was not justiciable. Therefore, in December 2017, he granted the government's motion to dismiss. (That case is currently on appeal to the Second Circuit.) However, on July 25, 2018, the Honorable Peter J. Messitte of the U.S. District Court for the District of Maryland denied the government's motion to dismiss. And in doing so, Judge Messitte devoted nearly five pages to the arguments we raised in our briefs.

Though he rejected each and every one of our positions, we are grateful to the Court for shining a light on these important historical issues. Judge Messitte put on notice the Fourth Circuit, and all other courts, that any ruling for the Plaintiffs ought to address our arguments. Stated differently, if President Washington was correct, then President Trump should prevail. In order for the Plaintiffs to prevail, the courts must demonstrate that President Washington was wrong. In July 2016, Professor Will Baude wrote that Tillman has "singlehandedly shifted the burden of proof." In any event, in ordinary civil litigation, the burden of persuasion rests with Plaintiffs. Because Judge Messitte's opinion is marred by plain historical errors, the Plaintiffs have not carried that burden.

And from the core of the discussion:

Finally, Judge Messitte reasoned in the alternative. Even if the "single" land transaction supported the Defendant, that evidence must be weighed against other "historical evidence, textual support, and executive branch precedent to the contrary." Slip op. at 46. Judge Messitte is correct that he must weigh the competing streams of authority. Alas, his scale is one-sided: he considers the Washington land transaction as the only evidence in support of the Defendant. (This evidence was put forward by the DOJ.) But there was other evidence—lots of it.

The Blackman-Tillman brief dedicated an entire free-standing brief section describing evidence of diplomatic gifts given to George Washington and to his successors, i.e., other Presidents during the Federalist Era and Early Republic. Washington and his successors received, accepted, and kept these diplomatic gifts—all absent congressional consent. The public knew about these gifts, and they were discussed in contemporaneous diplomatic communications. Until this litigation, no historian or contemporaneous or subsequent legal scholar (as far as we know) ever suggested that Washington or his successors violated the Foreign Emoluments Clause. Nor can one find a trace of protest in congressional debate or in the press. Why not? We posit that there was no protest, because presidents were not understood to be bound by the Foreign Emoluments Clause.

Moreover, the Court concluded that de minimis gifts and transactions were beyond the scope of the Constitution's "emoluments"-language. We do not take issue with that conclusion here. (However, Professor Andy Grewal noted that "no dictionary has ever defined an emolument as 'anything of value but with some de minimis exceptions where potential of corruption does not exist.'") Rather, here, we point out that Plaintiffs and their many supporting amici put nothing in the record from which Judge Messitte might reasonably conclude that the value of these diplomatic gifts had de minimis value. To the contrary, we have long anticipated this sort of argument. In our brief, we describe the "framed full-length portrait of King Louis XVI" as a "valuable gift," and the portrait was mounted inside a "valuable ornate frame." These were not de minimis gifts. We are (again) ready to put forward experts to support our position. Judge Messitte was perfectly correct to engage in balancing or weighing the competing streams of authority. However, he discounted Washington's 1793 land transaction based on plain error. Furthermore, he failed to consider the many diplomatic gifts given to President Washington and his successors in the Early Republic. The Court only considered the evidence on one side of the scales: this approach cannot be described as balancing in any meaningful sense.