Month: October 2017

Professor Josh Blackman has a very informative summary of the oral argument before U.S. District Judge George Daniels in CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), one of the three federal cases in which President Trump is being sued for (allegedly) violating the Foreign Emoluments Clause. If you are following these cases, you should read the whole thing.

Of particular interest is the government’s “evolving” position on whether the FEC applies to the president at all. The executive branch has repeatedly affirmed that the clause applies to the president. See, e.g., Off. of Legal Counsel, Applicability of the Emoluments and the Foreign Gifts and Decorations Act to the President’s Receipt of the Nobel Peace Prize (Dec. 7, 2009). Moreover, prior to the beginning of the Trump administration, the president-elect’s personal lawyers released a white paper in which they expressly acknowledged: “On assuming office, the President-Elect will be bound by—and will scrupulously abide by—his obligations under the Constitution. That includes the obligations created by the constitutional provision that these commentators highlight, the Foreign Emoluments Clause.”

My understanding had been that the Department of Justice, representing Trump as a defendant in his official capacity in the three federal lawsuits, had likewise acknowledged that the FEC applied to the president. However, at the oral argument, DOJ attorney Brett Shumate asserted that the government was only “assuming” that the FEC applied. Subsequently, Shumate wrote to the judge, confirming that “the government has not conceded that the President is subject to the Foreign Emoluments Clause.”

To paraphrase former VP Biden, this is a BFD. I don’t know whether the government will actually argue in court that the FEC is inapplicable to the president. Presumably it hopes not to have to address the issue because the cases will be dismissed as non-justiciable (as they should be). But even if the government never makes the argument, it has now reserved the right to assert that the FEC does not apply to the president or vice president. This seems a little inconsistent with the promise previously made by Trump’s personal counsel, but Congress has now been given fair warning. The president (or his successors) may take the position in the future that the FEC is inapplicable. That means that the president could accept a present, emolument, office or title from a foreign government without seeking congressional consent or even notifying Congress of this acceptance.

This illustrates the danger that these cases pose to Congress’s institutional interests. Both history and text strongly suggest that the FEC is designed to be enforced by Congress, not by the judiciary. Judge Daniels indicated as much during the oral argument, stating: “Clearly the Constitution was written so that Congress would make the determination. . . . They don’t have to sit on their hands if they think there’s a problem. They can do something about it.”

The court is clearly right about this. But there is no one before the court representing Congress’s interests in this matter. Trump’s personal and political interests, the executive branch’s institutional interests, the views and interests of Trump’s political opponents and even the thoughts of officious intermeddlers like Professor Tillman are represented, but not Congress.

It is time for Congress to stop sitting on its hands. It should authorize House and/or Senate legal counsel to file briefs in the three FEC cases, politely explaining to the courts that this is none of their business. It should demand through its committees that the Department of Justice provide a straight answer as to whether the FEC applies to the president. And, while they are at it, the committees should take a hard look at Trump’s business interests and the arrangements that he has made to “scrupulously abide” by the Foreign Emoluments Clause.

You know, the constitutional provision that may or may not apply to him.

 

 

Alternate title: “Everything You Ever Wanted to Know about the Hamilton Report (and Much, Much More).”

Readers of this blog are aware that Professor Seth Barrett Tillman has long maintained that the presidency and vice presidency are not “offices under the United States” within the meaning of various clauses of the Constitution which use that expression or a variant thereof. Tillman’s theory has a number of implications. We first discussed the theory in a December 20, 2008 post entitled “Can Joe Biden Be Vice President and Senator at the Same Time?,” in which it was noted that one implication is that the Incompatible Offices Clause (U.S. const., art. I, §7, cl. 2) would not prohibit someone from serving as president or vice president and at the same time as a member of the House or Senate.

More recently, Tillman’s theory has received a good deal of attention for its application to the Foreign Emoluments Clause (U.S. const., art. I, § 9, cl. 8). If, as Tillman maintains, the president does not hold an “Office of Profit or Trust under [the United States]” within the meaning of the FEC, then President Trump is not subject to the prohibitions of that clause, much to the dismay of many, including the plaintiffs in three separate lawsuits who have sued Trump for violating it.

Tillman has not (at least yet) convinced many people that his theory is correct. Among the unconvinced are President Trump’s personal lawyers and the Department of Justice, which represents the president in his official capacity in the aforementioned lawsuits. Because no party to these suits disputes the FEC’s applicability to the president, Tillman filed this amicus brief in one of the cases, CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), to ensure that the court has the benefit of his point of view.

(One prominent legal scholar who has been convinced is Professor Josh Blackman, who is representing Tillman in the CREW case. For brevity’s sake, this post refers only to Tillman, but it should be noted that Blackman also believes that the FEC does not apply to the president.)

Tillman’s argument relies in significant part on a 1793 document prepared by the Treasury Department that suggested, by omission, the president and vice president were not among those who held any “civil office or employment under the United States.” See Amicus Br. at 18-21. This document, which was submitted to the Senate under the signature of Secretary of the Treasury Alexander Hamilton, will be referred to herein as the “Hamilton Report.”

Before getting into the nuts and bolts of the Hamilton Report, I want to stress that Tillman’s reliance on the report depends on four assumptions about or inferences from the report: (1) the omission of the president and vice president from the report was a deliberate decision, rather than an oversight or error; (2) this decision was made or approved by Hamilton personally; (3) the decision was made for one specific reason, namely that the phrase “office or employment under the United States” excluded the president and vice president; and (4) the interpretation of this phrase was based on the unambiguous meaning of the words, rather than the context of their use or an extra-textual source of information. None of these can be definitively proved (or disproved), but Tillman evidently believes they can be adequately established for his purposes.

A foundational element of Tillman’s argument, though, came under attack in the CREW litigation when various experts and others aligned with the plaintiffs questioned whether the presidency and vice presidency had actually been omitted from the Treasury Department’s 1793 list. They contended (see here, here and here) that a subsequently published version of the Hamilton Report did include the president and vice president and therefore it was “grossly misleading” to suggest that Hamilton had omitted these offices at all. Moreover, in an amicus brief filed with the court, a group of legal historians contended that Hamilton had in fact signed the second version of this report, contrary to Tillman’s position.

Tillman responded to these charges by filing a proposed amicus response brief with a number of supporting exhibits, including declarations from five expert witnesses, two with expertise on authenticating founding-era documents and three with expertise on Alexander Hamilton. The evidence from these witnesses showed, to the satisfaction even of Tillman’s critics, that Hamilton signed only the Hamilton Report and not the version which listed the president and vice president. (That second version, which we will discuss later, was likely created in the 1830s, well after Hamilton’s death). In fact, the legal historians who had filed the brief criticizing Tillman issued a formal apology to him as well as a letter to the court withdrawing the footnote in which the criticism was made.

At this point you may be thinking this is all very interesting (if you’ve read this far I will assume you are the sort of person who would find this interesting), but is this really the way we go about determining the meaning of a constitutional provision? An inference from omission that is said to cast light on the view of a single framer about the meaning of a phrase that is used in an entirely different context but is similar (though not identical) to a phrase used in the Constitution? And which then leads to a battle of forensic experts about whether the omission happened in the first place? Is this original public meaning originalism or National Treasure originalism?

Well, these are good questions you ask, and I must admit I find the whole thing a little odd myself. Perhaps the judge did too, as he declined to accept Tillman’s proposed amicus response brief. But here at Point of Order, we never hesitate to waste large amounts of time on arcane matters that will never affect anyone in the real world. (Ask Vicki Divoll if you don’t believe me.) So here goes.  Continue reading “Why Tillman’s Experts Show He is Wrong”