Seth Barrett Tillman and I published this guest-post on the Volokh Conspiracy, which is cross-posted here.
In a series of writings and briefs, we have maintained that President Washington’s practices refute the legal claims that President Trump has violated the Foreign and Domestic Emoluments Clauses. President Washington received valuable gifts from foreign governments without seeking congressional content. Furthermore, he purchased land from the federal government in a public auction. Based on our understanding of the Foreign and Domestic Emoluments Clauses, these acts were perfectly lawful. However, under the constructions put forward in ongoing litigation, President Washington publicly violated both provisions. Those opposing President Trump respond that President Washington was either mistaken or he brazenly violated the Constitution he helped to define. These litigation positions are contrary to a weight of bona fide authority.
Time and again, the Supreme Court has looked to Washington’s decisions and practice when interpreting the text and structure of the Constitution. In Youngstown Sheet & Tube Co. v. Sawyer, Justice Frankfurter fittingly “derive[d] consolation from the reflection that the President and the Congress between them will continue to safeguard the heritage which comes to them straight from George Washington.” Washington’s public acts such as accepting diplomatic gifts, are entitled to special solicitude when construing the Constitution. In America’s Unwritten Constitution, Akhil Reed Amar wrote “Washington defined the archetypical presidential role,” and “[a]s America’s first ‘first man,’ [he] set precedents from his earliest moments on the job.”
Until recently, no court had opined on the validity of Washington’s practices with respect to the Emoluments Clauses. The Honorable George B. Daniels of the U.S. District Court for the Southern District of New York concluded that the case was not justiciable. Therefore, in December 2017, he granted the government’s motion to dismiss. (That case is currently on appeal to the Second Circuit.) However, on July 25, 2018, the Honorable Peter J. Messitte of the U.S. District Court for the District of Maryland denied the government’s motion to dismiss. And in doing so, Judge Messitte devoted nearly five pages to the arguments we raised in our briefs.
Though he rejected each and every one of our positions, we are grateful to the Court for shining a light on these important historical issues. Judge Messitte put on notice the Fourth Circuit, and all other courts, that any ruling for the Plaintiffs ought to address our arguments. Stated differently, if President Washington was correct, then President Trump should prevail. In order for the Plaintiffs to prevail, the courts must demonstrate that President Washington was wrong. In July 2016, Professor Will Baude wrote that the Tillman has “singlehandedly shifted the burden of proof.” In any event, in ordinary civil litigation, the burden of persuasion rests with Plaintiffs. Because Judge Messitte’s opinion is marred by plain historical errors, the Plaintiffs have not carried that burden.
Washington’s Completed Land Transactions
In its opening brief, DOJ explained that President Washington bought four lots of land (lots nos. 5, 12, 13, and 14 in square 667) at an auction in the new federal capital. That land was purchased on September 18, 1793. According to the Plaintiffs’ definition of “emolument,” President Washington received something of value from the federal government, beyond his salary–that is, he received the land. Therefore, he would have violated the Domestic Emoluments Clause. Judge Messitte rejected the relevance of this evidence. Why? He asserted that “the surrounding facts [of the auction] . . . are seriously incomplete.” Specifically, he posed a series of questions: “What sort of public auction was held? How was it advertised? How many bidders were involved?” Slip op. at 45–46.
Judge Messitte poses these questions as if they were unknowable. Yet, our Amicus Brief expressly answered each of these questions, and more. We showed that the auction was an open auction with oral bids. We showed that it was advertised six months prior to the auction in a newspaper in Philadelphia—then America’s commercial capital and its former national capital. We showed that there were some eighteen bidders. Blackman-Tillman Br. at 28–29. These conclusions were well supported by primary documents and good secondary authorities.
President Washington’s Prospective Land Transactions
Subsequent to that initial purchase of the four lots in September 1793, President Washington expressed an interest in purchasing further land in the federal capital. DOJ Memo at 43. In March 1794, he wrote to the Commissioners for the District of Columbia about a second proposed purchase (not in square 667, but in square 21). Washington stated: “I should be glad to know what my prospect is.” He added, “I am as ready to relinquish, as I was to imbibe the idea, of this purchase.” (emphasis added). In this letter, he suggested he would “relinquish” the “idea” of buying the land.
Yet, Plaintiffs conflate the completed and proposed transactions. They argued that Washington was “ready to relinquish” the property which he had already purchased in 1793. Pl.’s Opp’n at 45. They insinuated that Washington expressed doubt about the validity or finality of the 1793 purchase. This mischaracterization of the record confuses a straightforward primary source. DOJ did not concede this point in its reply. Rather, the government responded that even if Plaintiffs’ characterization were correct, then the first and only actual completed transaction still illustrates that Washington benefited from doing business with the federal government. Furthermore, his commissioners (including a Supreme Court Justice) facilitated the purchase. Reply at 25–26. Indeed, Washington made the purchase in full view of the public at an advertised auction. DOJ’s characterization of two transactions—a completed one and a proposed one—was entirely correct.
Judge Messitte squarely adopted Plaintiffs’ characterization of the contested facts surrounding these transactions. He likewise conflated the two transactions: the completed one and the proposed one. Judge Messitte wrote: “as Plaintiffs note, Washington later made clear that [Washington] was ‘ready to relinquish’ the property if necessary, which itself calls into question the actual relevance of this transaction.” Slip op. at 46 (emphasis added). The Court erred here. Washington was not talking about relinquishing the property he had already purchased in 1793, but instead was referring to a prospective land transaction. Unfortunately, Judge Messitte relied on the Plaintiffs’ plain factual error to obscure how President Washington understood his own constitutional authority. Moreover, Messitte’s characterization also obscures how the commissioners, as well as their contemporaries, understood the actions of the President. Even worse, the Court stated that the Plaintiffs’ position was “clear.” Yet, Judge Messitte offered no explanation why he rejected the DOJ’s contrary, and correct, position.
It is common enough for a Court to make an error with regard to its use of a historical document. Judges make mistakes, as do we all. Rather, the point here is that Judge Messitte’s opinion was announced in the context of an early Rule 12(b) motion, rather than after an evidentiary hearing, e.g., in the context of a Rule 56 motion; in effect, he took judicial notice of a key disputed historical fact. Judge Messitte should not have adopted an incorrect interpretation of a contested document, nor should he have then characterized his announced position as “clear.” The far better course would have been to provide a reasoned explanation for his conclusion, following an adversarial hearing. See Oneida Indian Nation of N.Y. v. New York, 691 F.2d 1070, 1086 (2d Cir. 1982) (explaining that “when facts or opinions found in historical materials or secondary sources are disputed, it is error to accept the data (however authentic) as evidence” and that the “better course is to conduct an evidentiary hearing”).
If Judge Messitte’s interpretation of the Domestic Emoluments Clause and its “emoluments”-language were correct, then Washington violated the clause, and his three commissioners conspired to help him do so in full light of day. The choice before us is a simple one: either: (1) President Washington and his three commissioners (including a Supreme Court Justice) were right, and Judge Messitte is wrong; or (2) Judge Messitte is correct, and President Washington and his three commissioners were wrong. But that is the choice before us. Judge Messitte’s opinion obfuscates that choice by characterizing this straight forward event—President Washington’s 1793 land purchases—as a “purported” and “potential” violation: it was either a violation or it was not. Future proceedings can correct this error: the 1793 Washington land purchase—at an advertised, public auction—serves as an on point Executive Branch precedent that the President is permitted to derive benefits from doing business with the federal government, notwithstanding the “emoluments” language in the Domestic Emoluments Clause.
Despite the presence of this evidence in the record, Judge Messitte still characterized the land auction as a “purported potential Domestic Emoluments Clause violation by President Washington.” Judge Messitte implied that he, and not President Washington, is the more faithful arbiter of the Constitution. Parties bear a heavy burden in asserting that “President Washington did not understand” the Constitution that his precedents helped define. Judge Messitte’s conclusion that the Constitution’s “emoluments”-language reaches business transactions was based upon Plaintiffs’ characterization of Washington’s 1793 land transaction, but that analysis was marred by plain historical error. Judge Messitte, in effect, concludes that Washington violated the Domestic Emoluments Clause by transacting business with the federal government. Judge Messitte’s analysis leaves unanswered the obvious question: Why are Plaintiffs and the Court unable to point to any one of Washington’s contemporaries, any opposition in Congress, or in the press, any contemporaneous or subsequent legal scholar or historian—who noticed this illegality prior to the election of President Trump? The most likely explanation is simple: they did not notice any illegality because they did not think there was any illegality to notice.
The Weight of President Washington’s Practices
Finally, Judge Messitte reasoned in the alternative. Even if the “single” land transaction supported the Defendant, that evidence must be weighed against other “historical evidence, textual support, and executive branch precedent to the contrary.” Slip op. at 46. Judge Messitte is correct that he must weigh the competing streams of authority. Alas, his scale is one-sided: he considers the Washington land transaction as the only evidence in support of the Defendant. (This evidence was put forward by the DOJ.) But there was other evidence—lots of it.
The Blackman-Tillman brief dedicated an entire free-standing brief section describing evidence of diplomatic gifts given to George Washington and to his successors, i.e., other Presidents during the Federalist Era and Early Republic. Washington and his successors received, accepted, and kept these diplomatic gifts—all absent congressional consent. The public knew about these gifts, and they were discussed in contemporaneous diplomatic communications. Until this litigation, no historian or contemporaneous or subsequent legal scholar (as far as we know) ever suggested that Washington or his successors violated the Foreign Emoluments Clause. Nor can one find a trace of protest in congressional debate or in the press. Why not? We posit that there was no protest, because presidents were not understood to be bound by the Foreign Emoluments Clause.
Moreover, the Court concluded that de minimis gifts and transactions were beyond the scope of the Constitution’s “emoluments”-language. We do not take issue with that conclusion here. (However, Professor Andy Grewal noted that “no dictionary has ever defined an emolument as ‘anything of value but with some de minimis exceptions where potential of corruption does not exist.'”) Rather, here, we point out that Plaintiffs and their many supporting amici put nothing in the record from which Judge Messitte might reasonably conclude that the value of these diplomatic gifts had de minimis value. To the contrary, we have long anticipated this sort of argument. In our brief, we describe the “framed full-length portrait of King Louis XVI” as a “valuable gift,” and the portrait was mounted inside a “valuable ornate frame.” These were not de minimis gifts. We are (again) ready to put forward experts to support our position. Judge Messitte was perfectly correct to engage in balancing or weighing the competing streams of authority. However, he discounted Washington’s 1793 land transaction based on plain error. Furthermore, he failed to consider the many diplomatic gifts given to President Washington and his successors in the Early Republic. The Court only considered the evidence on one side of the scales: this approach cannot be described as balancing in any meaningful sense.
There are other problems with Judge Messitte’s opinion, which we will discuss in due course. For example, he defines “officers of the United States” and “office . . . under the United States” as interchangeable. He indicates that both terms refer to all federal officers in our government, whether elected or appointed: “As the Domestic Emoluments Clause illustrates, the term ‘United States’ is used in the Constitution to distinguish between the federal and state governments.” Slip op. at 12. The Court makes no effort to explain why this is the case: why does the Constitution use divergent language (i.e., “office under the United States” and “officers of the United States”) to express the same concepts? Nor does his opinion grapple with the severe structural problems this approach creates. Asher Steinberg—who agrees with some, but not all of our arguments—ably points out these issues.
For now, it is enough that we point out that the District of Maryland’s five-page rebuke of our brief rests on plain historical error. Moreover, that error was enabled by errors in the Plaintiffs’ briefs. On appeal, the burden remains on the Plaintiffs to show that the District of Maryland, and not President Washington, is the more faithful arbiter of the Emoluments Clauses.