We have filed our third amicus brief in the Emoluments Clauses litigation on behalf of Seth Barrett Tillman and the Judicial Education Project. This case involves a suit brought by the District of Columbia and Maryland in the District Court of Maryland. Like our brief in CREW v. Trump (SDNY), and unlike Blumenthal v. Trump (DDC), this case raises claims under both the Foreign and Presidential Emoluments Clauses.

This third brief is a vast improvement over our first filing–a lot of has happened since then. Notwithstanding a kerfuffle over some Hamilton documents, we have yet to see anyone offer a rebuttal to our arguments. Eugene Volokh did extend an invitation to counsel for the Plaintiffs and their Amici to respond to our week-long stint at the Conspiracy. We will wait and see what, if anything, develops.

I do encourage you to read Asher Steinberg’s post on this topic. He takes a slightly different approach with respect to certain appointed positions within the legislative branch (such as the Clerk of the House), but agrees with much of our textual arguments.

Here is the preliminary statement of our brief:

The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], 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.” Plaintiffs contend that “the phrase ‘Person holding any Office of Profit or Trust,’ as used in the [Foreign Emoluments C]lause, includes the President.” Their argument certainly has an intuitive appeal: 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? But an intuition is not an argument, and it is not evidence. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar phrase “Office . . . under the United States” in other constitutional provisions, applies to the President. Rather, the text and history of the Constitution, and post-ratification practice during the Early Republic, strongly support the counter-intuitive view: the President does not hold an “Office . . . under the United States.”

The Framers of the Constitution, making use of the progenitor British drafting convention of “Office under the Crown,” used the phrase “Office . . . under the United States” to refer to appointed officers in all three branches of government. That category did not include elected officials, such as the President and members of Congress. The weight of evidence, spanning from the colonial period to the American Revolution, then through the Constitutional Convention, to the First Congress, the Washington Administration, and finally into the Early Republic, demonstrates that elected federal officials, such as the President, do not hold an Office of Profit or Trust under the United States. Thus, the President is not subject to the Foreign Emoluments Clause.

President Washington and other founders who were his successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. For example, President Washington received a diplomatic gift from the French ambassador to the United States; it was a framed full-length portrait of King Louis XVI. Likewise, President Jefferson received a bust of Czar Alexander I as a diplomatic gift. If Plaintiffs were correct, these presidents and others central to the founding of the United States of America openly committed impeachable offenses or were ignorant of the Constitution they helped draft and define. Washington’s practice, and the practices of his successors during the Early Republic, of accepting such gifts confirm that they understood that the President was not subject to the Foreign Emoluments Clause and its “Office . . . under the United States” language. The drafting practices of the First Congress and the writings of Alexander Hamilton lend further support to this position. For these reasons, Plaintiffs’ prayer for a declaration that the President is subject to the Foreign Emoluments Clause should be denied.

The President, however, is subject to the Presidential Emoluments Clause, which bars the President from receiving an “emolument” from the United States or any state in the Union. Although the term “emolument” is now somewhat archaic, at the time of the Framing, it was widely used, and it had a settled meaning. As the Supreme Court explained in Hoyt v. United States, the term “emoluments” “embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” Plaintiffs read the Presidential Emoluments Clause to prohibit the President from receiving “anything of value” through business transactions with the federal or state governments. Their position conflicts with a precedent set by George Washington during a public land auction in the nation’s new capital while he was President. Plaintiffs can do little more than charge Washington as incompetent, or worse, crooked. President Trump’s business activities may raise ethical conflicts under modern good governance standards, but they raise no constitutional conflicts under the Foreign or Presidential Emoluments Clauses.

As before, we noted that we plan to seek leave to participate in oral arguments.