The emoluments clauses litigation, part 4 — an emolument is the “profit derived from a discharge of the duties of the office”

September 29th, 2017

The Volokh Conspiracy has published the fourth part of our series on the Emoluments Clauses litigation. This entry focuses on the meaning of “Emoluments.” Here is an excerpt:

On Sept. 18, 1793, President George Washington crossed the Potomac. He was greeted with two brass bands, which escorted him on the first parade that was held in the federal capital district. He traveled from the future site of the White House to the future site of the Capitol. The Columbian Gazetteer, a New York newspaper, reported that upon his arrival, the master of ceremonies “deposited” the Capitol’s cornerstone, adding that “the presence of Washington, gave magnificence to the scene, and brilliancy to the performance.” Similar accounts were published in newspapers in Boston and South Carolina.

That very same day, historian James Thomas Flexner recounts, “there was to be an auction of lots,” which had been actively advertised in newspapers as far away as Philadelphia six months earlier. The auction would be supervised by three commissioners that Washington had appointed in 1791: David Stuart, Daniel Carroll, and Thomas Johnson. These prominent figures played important roles in the early years of our Republic. Stuart was a member of the Virginia convention that ratified the Federal Constitution. Daniel Carroll was a member of the Federal Convention that drafted the Constitution and served in the First Congress. Thomas Johnson was the first governor of Maryland following independence, a member of the Maryland convention that ratified the federal Constitution, and served as an associate justice of the Supreme Court during his tenure as a commissioner.

As the lots in the new federal capital were put up for sale by the auctioneer’s chants, Flexner wrote, “there were few raised hands, few shouting voices.” One account, according to historian Bob Arnebeck, recalled that some eighteen buyers were present at the public auction. Washington, who had “hoped [this auction] would be more successful than its predecessors . . . leaned forward in suspense,” Flexner recounted. And then, he “br[oke] the silence to buy four lots on the East Branch.” The certificates for the purchase of lots 5, 12, 13, and 14, preserved in Washington’s papers, were recorded as the “Public Sale of Lots.”

George Washington received valuable plots of land (i.e., purported “emoluments”) from the federal government. To the plaintiffs and their Amici, our first president, under the watchful eye of three prominent members of our founding generation and in full public view in the new federal capital, willfully violated the Constitution. Washington, a trained surveyor of land, would have known that his purchases would be publicly recorded for all to see. This is not the model of a diabolical schemer, attempting to evade his constitutional duties through subterfuge. There was none: it was all done in public. Washington was acutely aware of how his every action would be scrutinized. In a letter to his nephew, and future Supreme Court Justice, Bushrod Washington, the president explained that “my political conduct . . . must be exceedingly circumspect and proof against just criticism, for the Eyes of Argus [the all-seeing, many-eyed giant of Greek mythology] are upon me, and no slip will pass unnoticed that can be improved into a supposed partiality for friends or relations.”

It is only now, more than two centuries after Philadelphia, that certain legal historians are making the ahistorical claim that President Washington’s business dealings with the federal government is and was prohibited by the presidential emoluments clause. Are we really to believe that not only did the commissioners willingly, openly, and notoriously participate in a conspiracy to aid and abet the president in violating the Constitution’s presidential emoluments clause, but that they also left — for themselves and their posterity — a complete and signed documentary trail of their wrongdoing?

Finally, we know of no contemporary opposition to Washington’s participation in the land auction, even though he appointed and had supervisory power over the commissioners who presided over the auction. Even at that time, anti-administration officials could have seized upon any maladministration or unethical conduct. In 1793, there were some 13 anti-administration Senators and some 40 anti-administration Representatives.

That no opposition was registered strengthens the inference that Washington’s bids were not perceived by the public as anything other than perfectly legal and perfectly fair. Indeed, just as Washington’s contemporaries failed to object to his doing business with the federal government, later commentators who had access to these historical records also failed to discuss any such potential objections based on the presidential emoluments clause in regard to Washington’s Sept. 18, 1793 land purchases. The one historian (i.e., the one historian not connected to current litigation) to address the scope of the term “emoluments” and its applicability to business transactions has squarely rejected this argument. Attempts to paint Washington as a grossly negligent, if not a crooked dealer, are contrary to the overwhelming weight of evidence. Likewise, efforts to tar the reputation of the commissioners, who were respected officials in the Early Republic, are unsupported by any evidence. The far simpler answer is that business transactions are beyond the scope of the phrase “emoluments” in both the presidential and foreign emoluments clause. Plaintiffs’ attempt to redefine these provisions should fail as a matter of law.