New Filings in the Emoluments Clause Litigation

September 20th, 2017

The litigation concerning the Foreign Emoluments Clause demands a careful study of the text and history of the Constitution. The Plaintiffs and their amici (including a group of self-styled “Legal Historians”) have attempted to discredit the amicus brief I filed on behalf of Seth Barrett Tillman. On the blogosphere and in filings with the Southern District of New York, they charged that we mislead the court about a document called The Condensed Report. They assert that The Condensed Report was signed by Alexander Hamilton, but because it undercuts our theory, we misled the court about its provenance.

Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton. And had the Plaintiffs and their amici asked an actual expert who specializes in the works of Alexander Hamilton (we asked three), they would have learned that the document was drafted after Hamilton’s death.

The Condensed Report is nothing more than an unsigned and undated scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death by an unknown Senate functionary–exactly as we stated in our brief. Yet, in blog post after blog post, and even in a court filing, these attorneys repeated their mendacious claims without performing any actual due diligence. Perhaps most remarkably, Tillman posted a copy of the Condensed Report on his BePress page five years ago! There was nothing new to “discover” in a much-vaunted trip to the National Archives.

Readers of this blog may have noticed that neither Tillman nor I have publicly responded to these claims until now. Indeed, Plaintiffs and their amici have implied that our silence is some sort of admission of malfeasance. Professor Jed Shugerman of Fordham Law School suggested that our failure to reply in a two week window was unacceptable.

He wrote:

One might expect that when a brief before a court contains significant factual errors or misleading interpretations of evidence, the authors of that brief will offer to correct their briefs or retract the sections if they are no longer supported by the evidence

If Shugerman meant what he stated, there should be a retraction, but not from Tillman and me.

On Tuesday, we sought leave from the Southern District of New York to reply to the amicus brief filed by the Legal Historians. Our brief includes two sworn declarations by leading experts in the field of authenticating founding-era documents, and three other experts in regard to Alexander Hamilton. The experts uniformly agree: Amicus is correct.

The signature on The Condensed Report is not Alexander Hamilton’s. It does not bear any of the characteristics of his penmanship. Further, the experts agree with Tillman that The Condensed Report was not drafted in 1793, and was drafted long after Hamilton’s death in 1804.

One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not). Here are excerpts from his affidavit that demonstrate the embarrassing error made by Plaintiffs and their Amici:

15. Historical documentary editors regularly face the task of identifying the authorship and dating documents in determining what documents to publish in their volumes, what documents should be relegated to annotation, and what documents should be excluded altogether. I have been making these kinds of decisions for almost fifty years. After examining the two reports, it seems clear to me that one interpretation is possible. I agree with the editors of the Hamilton Papers that The Complete Report is an original Hamilton document while The Condensed Report is a later copy.

16. Both lengthy reports were written by scriveners. The Complete Report was signed by Alexander Hamilton himself. I base this opinion in substantial part on my professional judgment as to what Hamilton’s signature looked like. The Condensed Report also contains the words “Alexander Hamilton” where a signature might appear, but this “signature” was clearly not written by Hamilton himself. Rather, the words “Alexander Hamilton” were written by the same scrivener who transcribed The Condensed Report. Endorsements or marginalia on both documents assist in determining the genesis of The Condensed Report. The markings on The Complete Report in pencil indicate that the report was “To be condensed & printed. See page Journal 441 & 497.” The page numbers refer to the relevant dates of 7 May 1792 and 27 February 1793 located in the 1820 printed edition of the U.S. Senate Journal published by Gales & Seaton. The back of The Condensed Report is docketed: “2 Cong No. 34 2 Sess. Condensed.” Beneath the word “Condensed” appears: “Report from Secretary of the Treasury with names & compensation of all Officers in the civil employ of the Government, 1793 Feb 27—Series 10 No. No. [sic] 34 Miscellaneous.” A separate notation indicates: “Condensed by Order of the Secretary of the Senate.”

17. These markings clearly indicate that sometime after 1820 (probably near 1833), the Secretary of the U.S. Senate ordered that a condensed version of The Complete Report be made. Transcribed by a clerk of the Senate, The Condensed Report was then printed in the first miscellaneous volume of American State Papers, published in 1834. Hamilton was long since dead by 1820. Thus Alexander Hamilton had no direct connection with The Condensed Report.

The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading. And it was one designed solely to attack Tillman’s credibility.

Look no further than tweets by Larry Tribe and Norm Eisen, which use identical language (“devastating”) to assail Tillman’s arguments

These claims have been retweeted by hundreds of their Twitter followers, including one prominent constitutional law scholar, Richard Primus of the University of Michigan. He also used the same adjective “devastating.”

They all owe Tillman an apology, and a public retraction. We will reappropriate #Tillmania has a hashtag of victory. But such contrition will do little to restore this irreparable hit to their credibility in the litigation. There are a number of difficult questions presented in this case, but the provenance of The Condensed Report should have been obvious to any objective observer. These attorneys and their amici are anything but.

To that end, we have asked the Southern District of New York for leave to be heard at oral arguments. Our brief cites the fact that Amicus can “provide an objective assessment of the historical record,” a task that Plaintiffs and the Legal Historians have failed at. To be frank, we are grateful for this entire kerfuffle, because it increased the odds that the court grants our motion. In fact, we were content to not respond until our pleadings were ready, so the Plaintiffs and their Amici could keep digging their own grave. And dig they did. By demonstrating their inability to accurately characterize evidence, Judge Daniels can benefit from a friend to the court.

That addresses the question for the courts. But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim–as Shugerman insisted Tillman and I should–and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).

Further, this episode rekindles a long-simmering debate about academics who sign their names to brief that they did not write. Tillman’s affidavit explains the issue well:

Nevertheless, the Legal Historians inexplicably endorsed Gorod’s claim, even after analyzing the documents at the National Archives:

We have confirmed these archival findings with a separate visit to the archive: the 1793 signed Hamilton manuscript was in the same box, in the folder immediately next to the folder holding the 1792 [sic] manuscript upon which they relied.63

It is unclear who the “we” are in the above sentence; it is entirely possible that one or more the signatories, especially those who do not live near Washington, D.C., were unable to personally inspect the documents.64

64 See also Richard H. Fallon, Jr., Scholars’ Briefs and the Vocation of a Law Professor, 4 Journal of Legal Analysis 223, 223 (2012) (noting, in the abstract, that “many professors compromise their integrity by joining such briefs too promiscuously,” and in turn “propos[ing] standards that professors should insist upon before signing amicus briefs that they do not write”); Adam Liptak, Friend-of-Court Filings Mushroom, and a Law Professor Takes Issue, N.Y. Times (Sep. 12, 2017),

Finally, the Plaintiffs should be on notice that they cannot rely on Amicus to disprove Tillman’s claims. This kerfuffle no doubt occupied a lot of their time, and it backfired. They will now need to spend precious pages responding to us directly. As they should. And they can start with the amicus brief we filed on Tuesday in Blumenthal v. Trump. This case only concerns the Foreign Emoluments Clause, so there was no occasion to discuss the Presidential Emoluments Clause. There is much overlap with our earlier brief from the Southern District of New York, but given the extra time, we have honed our positions, and added new evidence. One argument, concerning the interaction of the Recognition Power and the Foreign Emoluments Clause is worth considering in light of Zivotofsky:

How could the Presidency not qualify as an ‘Office of Profit or Trust’ under the United States for purposes of this important anti-corruption provision? However, in the realm of foreign affairs, our separation of powers jurisprudence provides extra latitude for the President. In support of his power to “receive Ambassadors,” the President may need the authority to accept foreign gifts unilaterally without having to first seek congressional consent. This is precisely what George Washington did in regard to a diplomatic gift from our ally France. Unlike the numerous diplomats stationed abroad, the elected and unitary President stands in a very unique position due to his largely unfettered powers over foreign affairs. The contrary interpretation would be extremely problematic: if a hostile or slow moving Congress rebuffed the President’s request to accept a foreign present, the foreign diplomat (or head of state) making the gift could relay a message of umbrage and disrespect to his home country.

If the Constitution vests the President with vast authority over recognizing foreign nations, then certainly it entails the far lesser authority to accept presents from those very same countries. Indeed, the President’s decision to accept a gift from a new world leader could itself amount to an act of recognition. Like with many of the President’s powers, he can act on his own in the first instance, but if Congress determines that the gifts amount to “Bribery,” he can be removed from office via impeachment.

We look forward to pursuing this litigation, but, as our strategy has been in the past, we have no intent to respond to every blog post and tweet written about this case. Indeed, much like President Trump, the more the Plaintiffs and the Amici tweet about this case, the stronger our position becomes.