New Amicus Brief Filed in CREW v. Trump on behalf of Seth Barrett Tillman

June 16th, 2017

Long before the recent election, I was persuaded by Seth Barrett Tillman’s reading of the Constitution, whereby different “officer” language is used to different effect. (For a helpful summary, see Will Baude’s Jotwell review of Seth’s work). As relevant here, the Foreign Emoluments Clause provides: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (The phrase “them” refers back to “the United States” in the previous clause.) The term Office . . . under the United States stems from the British usage Office . . . under the Crown, which referred to appointed officials, and not elected officials. Neither the President, nor members of Congress, hold offices under the United States. In contrast, appointed officials–such as ambassadors–hold such offices, and are subject to the Foreign Emoluments Clause.

Until November 8, 2016, this research was fascinating, but had little practical impact. Then the election happened, and several suits have been filed alleging that President Trump is violating the Foreign Emoluments Clause, as well as the Presidential Emoluments Clause. The first such suit, CREW. et al, v. Trump was filed shortly after the inauguration in SDNY. (At the time, I commented on possible standing problems). A second amended complaint was filed in May, and last week the government filed a motion to dismiss.

Today, I filed an amicus brief (PDF) on behalf of Tillman, in support of the government’s motion to dismiss. Robert W. Ray of Thompson & Knight LLP served as our expert local counsel. We make two primary points. First, that the President does not hold an office . . . under the United States, so the Foreign Emoluments Clause is inapplicable. Second, the President’s business transactions do not amount to emoluments under the Presidential Emoluments Clause.

I recognize how contentious this case is, as with all things Trump. To that end, I’ll open with our conclusion, which accurately summarizes how Seth and I approach this case:

There is some intuitive appeal to Plaintiffs’ position that the President, like all federal officers, is subject to the Constitution’s anti-corruption provisions. Why would the Framers specifically exempt the President from these structures? The uncomfortable answer sheds light on why this case must be dismissed: due to his unique station in our separation of powers system, our laws often excuse the President from burdens that apply to others. The President generally cannot be sued for actions that arise in his official capacity, almost certainly cannot be subject to a criminal trial, and arguably can pardon himself.  As Chief Justice Marshall explained, “In no case of this kind would a court be required to proceed against the president as against an ordinary individual.”  Pursuant to an unenumerated “recognition” power, The President can even disregard an act of Congress in order to maintain the government’s foreign policy interests  Is it unthinkable that the Framers permitted the President to accept foreign gifts, perhaps to support his enumerated power to “receive Ambassadors,” without having to first seek the consent of a potentially hostile and slow moving Congress? The Constitution affords the President some potentially self-aggrandizing discretion. The Republic is better off if he does not use it, but if he does, there is no constitutional violation. The President does not hold an “Office of Profit or Trust under” the United States, so Count I must be dismissed.  The President’s business transactions do not amount to emoluments, so Counts I and II must be dismissed. Defendant’s business activities are less than ideal, but they are not redressable in court.

President-Elect Trump should have divested his interests. Unfortunately, he didn’t. These are grounds to oppose him politically. But from a constitutional perspective, there is no problem.

The brief itself focuses at some length on the practices and understandings of four of our premier founders: Washington, Jefferson, Madison, and Hamilton. All of whom happen to star in Hamilton: An American Musical. Truly the brief can be summed up with a song performed by Jefferson and Madison (and Burr).

It must be nice,
It must be nice,
To have Washington on your side

It is very nice to Washington on your side. And Jefferson. And Madison. And Hamilton.

Here is the introduction of the brief:

In the early days of our Republic, many constitutional questions divided Alexander Hamilton on one side from Thomas Jefferson and James Madison on the other. Could Congress charter a bank? Hamilton said yes,  and Jefferson said no. Must the Senate consent to the removal of principal officers? Madison said no,  and Hamilton (according to most accounts) said yes. Could the President declare neutrality unilaterally? In a series of pseudonymous essays, Hamilton said yes, while Madison said no. In each case, the ultimate decision was made by President George Washington. Through their public and private debates, these three Presidents and Hamilton, another prominent Founder, played central roles in the resolution of critical constitutional questions. For over two centuries, courts have turned to their considered judgment when resolving disputes about the Constitution—even where they disagreed amongst themselves.

These Founders, however, did not dispute the issue before this Court. Plaintiffs’ claim that the Presidential Emoluments Clause  and Foreign Emoluments Clause  prohibit the President from receiving “anything of value,” whether “monetary or nonmonetary,”  from domestic or foreign governments. The words and deeds of Washington, Jefferson, Madison, and Hamilton teach a different lesson.

First, Plaintiffs’ understanding of the Presidential Emoluments Clause cannot be squared with the practices of George Washington, whose conduct helped to define the presidency. In 1793, our first President purchased several plots of government-owned land in the nation’s new capital at a public auction. The auction was managed by federal officers, widely publicized, and these valuable plots were acquired in broad daylight. If Plaintiffs are correct, then Washington openly committed impeachable offenses under the watchful eyes of prominent members of the Founding generation, political opponents, and commercial rivals. This Court should reject Plaintiffs’ novel construction, and instead adopt one consistent with this formative history: the prohibition on the President’s receipt of “emoluments” from domestic governments is limited to “compensation or pecuniary profit derived from a discharge of the duties of the office.” Financial gain arising from private business transactions are not emoluments.

Second, Plaintiffs’ reading of the Foreign Emoluments Clause cannot account for the fact that our Founding-era presidents openly received diplomatic gifts from foreign governments. President Washington received a portrait of King Louis XVI from the French Ambassador to the United States. President Jefferson received a bust of Czar Alexander I. President Madison received two pistols from a revolutionary South American government. Congress’s consent was not sought for any of these gifts. If Plaintiffs are correct, three Presidents central to the American Founding openly committed impeachable offenses, or worse, were ignorant of the Constitution they helped draft and define. This Court should reject Plaintiffs’ argument, and instead follow the example set by these Presidents, as well as that illustrated by Secretary of the Treasury Alexander Hamilton’s 1792 report to the Senate. His report lists all who hold office under the United States, but not the President, implying the latter is not subject to the Foreign Emoluments Clause.

Plaintiffs counter this body of evidence with statements from George Mason and Edmund Randolph, who argued during Virginia’s ratification convention that the Foreign Emoluments Clause applies to the President. This evidence is problematic, however, because under their view—that everyone in the federal government is an “officer”—members of Congress could be impeached. These idiosyncratic views were rejected by the Senate in 1799 following an impeachment trial, and that rejection was ratified by the Supreme Court a century later. Mason and Randolph’s office-related intentions ought not prevail over the understandings and public practices established by Washington, Jefferson, Madison, and Hamilton, particularly where, as here, the views of the former have been considered and actively rejected.

Plaintiffs’ attorneys’ recent publications also cite examples of antebellum Presidents who asked Congress to dispose of diplomatic gifts. This evidence is not persuasive. First, unlike the Washington-era evidence, which was contemporaneous with the Constitution’s ratification, Plaintiffs’ evidence occurred many decades after the Framing. Second, there is no evidence Presidents Jackson, Van Buren, and Tyler were aware of the practices of Washington, Jefferson, and Madison. Third, voluntary surrender by Jackson of disputed presidential powers to Congress is far less probative than Washington’s public refusal to seek consent and Congress’s acquiescence. When considering competing streams of historical precedent in the separation of powers context, courts favor precedents established via open defiance over mere surrender, even if willful.

The most weighty historical evidence demonstrates that the Presidential Emoluments Clause only concerns compensation that is authorized by Congress or authorized by the states in regard to state positions, and that the Foreign Emoluments Clause is inapplicable to the President, because the President does not hold an office . . . under the United States. For these reasons, this Court should reject Plaintiffs’ attempt to redefine long-standing constitutional meaning to meet the purported demands of the moment.

One final note. I do not mention anywhere on the brief that I am a law professor. It is a common enough practice, but one I am no longer comfortable with. The phrase “Affiliation noted for identification purposes only” doesn’t cure the problem. By telling a court you are a law professor–even if your institution does not support the case–you are still signaling a certain detachment from advocacy, that is simply not present. In front of a court, I am not a professor. I am an advocate. To that end, this brief advances arguments that the government does not. We Amicus plans to request leave to participate in oral argument in this matter.