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Does Hamilton’s 1793 Treasury Report Mean that POTUS Does not Hold an “Office Under the United States”?
Andrew Hyman

For several years, Professor Seth Tillman and some other distinguished scholars have argued that a 1793 Treasury Department Report by Alexander Hamilton supports the conclusion that the President of the United States does not hold any “office under the United States.”  This would exempt the President from certain provisions of the Constitution, including the Emoluments Clause and the Ineligibility Clause.  I would like to briefly explain why I think the Hamilton Report does not support that conclusion.

The Senate asked Hamilton to provide financial information about “every person holding any civil office or employment under the United States.” Hamilton’s response did not list the President.  This Report was written years after the Constitution had been ratified, and it mentioned neither the presidency nor the Constitution, but for the sake of argument let’s suppose that the 1793 Report ranks with the Federalist Papers as an important tool for interpreting the Constitution.

There are many reasons why Hamilton might have excluded the President, but perhaps the most compelling reason is that the President is not simply a “civil officer.”  Rather, his office is both civil and military, and therefore Hamilton very plausibly could have felt that it is not proper to call POTUS a “civil officer,” which is the category of people the Senate asked about.

There is further support for this view in the constitutional text: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Why “all civil officers” instead of “all other civil officers”?  Obviously, the word "other" was omitted because the President and Vice-President are not civil officers, nor military officers, but rather are hybrid officers having both civil and military characteristics.  This was no accident.  As Professor Tillman has written, “in early drafts of the impeachment clause, the word ‘other’ immediately preceded ‘civil officers,’ but it was taken out by the Committee of Style.  Thus, the absence of the word ‘other’ from the final draft does not appear to be accident or happenstance.”

Professor Brian Kalt is clearly correct that, “The Constitution distinguishes the President and Vice-President from civil officers” (n. 17).  And civil officers are the people the Senate asked Hamilton about (in addition to asking about “employees” who presumably were at a lower level).  It is true that a couple people during the constitutional convention did refer to the POTUS as a civil officer, but to my knowledge Hamilton did not, and the Constitution itself indicates otherwise.

I am not suggesting that the President is not an officer under the United States, of course he is.  The Congressional Research Service has explained: “As a textual matter, both the Constitution itself and contemporaneous sources refer to the Presidency as an ‘Office.’ The President receives compensation for his service in office (that is, ‘Profit’) and is tasked with many important constitutional duties (that is, ‘Trust’).”  So the presidency is a public office, an office of profit and trust, and an office under the United States.  But it’s not wise to call it a civil office, which would imply that it’s not a military office.  Hamilton apparently concurred, judging by his 1793 Treasury Department Report.

In 1799, Congressman Robert Goodloe Harper (later a U.S. Senator from Maryland), stated the obvious:

[A]s the duties of the President are not confined to the civil or military department, but comprise both, it follows, that his office is neither exclusively civil, nor exclusively military, but includes both characteristics; so that he would not have been included in the designation "civil officer," and it was necessary to name him expressly, which is accordingly done. The same reasoning applies to the Vice President, who is also expressly named.

Alexander Hamilton very likely did not report back to the Senate about the finances of the president and vice-president because he did not think he had been asked about it.  And why would Hamilton have thought that he hadn't been asked about it?  Maybe Hamilton thought the Senate was simply being deferential to the top executive officers, or perhaps Hamilton thought the Senate was satisfied with Washington’s earlier promise during his first inaugural address not to take any salary.  In any event, the 1793 Report does not say anything useful about whether the President is an officer (of some kind) under the United States.