Historical Practice and the Applicability of the Foreign Emoluments Clause to the President

I want to return briefly to the question  whether the president holds an “Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors Tillman and Blackman in various amicus briefs, that the president does not hold such an office and therefore is not subject to the FEC. Nonetheless, the argument seems to have gained some traction in the legal academy, enough that Judge Rao, during the Mazars oral argument, referred to a dispute or debate among legal scholars on the subject. For that reason, I think it is worth calling attention to a congressional report that I recently came across which is of some relevance to this debate and which (again, as far as I know) has not been previously mentioned in that connection.

As background, you may recall that a key element of the Tillman/Blackman theory is that early presidents accepted gifts from foreign governments that allegedly would have been proscribed by the FEC if that clause applied to the president. The fact that these presidents accepted such gifts without seeking congressional consent, the argument goes, constitutes compelling evidence of the clause’s original meaning.

One might ask, though, why would this be so? Assuming that presidents accepted gifts otherwise proscribed by the FEC, this could reflect (1) lack of awareness of or attentiveness to the FEC; (2) a deliberate decision to ignore the FEC; or (3) a sincere but mistaken view the FEC did not apply to the presidency. It is not obvious why the facts as described by Tillman and Blackman should be given any particular weight in ascertaining the meaning of the FEC. Cf. Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-cv-2379, slip op. at 98 (D.D.C. Nov. 25, 2019) (“It goes without saying that longevity alone does not transform an unsupported notion into law.”).

In a recent article, Professor William Baude identifies a three-part test, drawn from James Madison’s thinking, for determining when historical practice can fix or “liquidate” the meaning of a constitutional provision: (1) the provision must be ambiguous or indeterminate; (2) there must be a course of deliberate practice based on a widely-understood interpretation of the constitutional provision; and (3) the practice must result in a lasting constitutional settlement where the practice/interpretation is widely accepted in government and the general public. See William Baude, Constitutional Liquidation, 71 Stanford L. Rev. 1, 13-21 (2019).

Let’s apply these elements to the historical practice identified by Professors Tillman and Blackman. On the first element, in my view the FEC unambiguously covers the president, but reasonable minds can differ could differ on this score. So we will assume this element is satisfied.

It matters not, however, because Tillman/Blackman lose spectacularly on the last two elements. If any president attempted to justify the acceptance of a gift on the ground that the FEC was inapplicable to his office, he did not do so publicly. Similarly, there could be no constitutional settlement in favor of excluding the president from the FEC because there is no evidence that Congress or the public were even aware that this interpretation had been asserted, much less that they acquiesced in it. Moreover, even if there was an early practice of presidents treating the FEC as inapplicable to their office, this practice did not last, but was replaced by the contrary practice, which has lasted to this day.

These points are illustrated by the aforementioned congressional report. In 1834, President Andrew Jackson asked Congress for its direction as to what to do about foreign gifts that had been received and accepted by U.S. diplomats abroad, including the gift of a lion and two horses that the Emperor of Morocco had recently bestowed upon the U.S. consul at Tangier. In response, the House Committee on Foreign Affairs wrote a brief report, which provided in part:

The acceptance of presents has, notwithstanding [the FEC], taken place, on several occasions, and under circumstances, which the committee are not prepared to say should not exempt this conduct from censure. In all others than the Christian States of Europe, (and in these to a greater or less extent,) the interchange of presents between the authorities and foreign agents is not only matter of invariable usage, but an established form of respect; the breach of which, by refusal of acceptance on the part of the foreign agent, would furnish an occasion of resentment, compromising oftentimes the efficacy of the agency, or it might be even the official immunities or personal security of the agent. The last instances of the acceptance of presents by our agents abroad, have been explained by considerations of this nature. In the case of the horses received by the commissioner of the United States from the Ottoman Porte . . . , this officer alleged the fear that the important commercial interests we were seeking at that time to adjust and confirm, would probably have been suspended by his adherence to the constitutional restriction. Mr. Jefferson, when President, did not refuse a similar present, made directly to himself, and could only have been influenced by similar inducements.

H. R. Rep. 23-302, at 2 (Mar. 4, 1834) (emphasis added).

The highlighted language shows that the committee had no doubt of the FEC’s applicability to the president, and it further suggests the committee lacked any awareness that President Jefferson might have had a different view on the subject. To the contrary, Jefferson’s acceptance of a gift in technical violation of the FEC, like that of other officials subject to its prohibitions, “could only” be explained by his desire to avoid giving offense to foreign powers.

Thus, even if early presidents did believe that the FEC was inapplicable to their office, by 1834 at the very latest this view seems to have vanished without a trace. Furthermore, since that time (again at the very latest) the unbroken practice has been for presidents to comply with the FEC. Professors Tillman and Blackman, I believe, do not dispute this fact. Therefore, if any constitutional meaning has been “liquidated” by practice, it would be that presidents are subject to the FEC.

None of this is to concede that President Jefferson or any other early president actually believed the FEC was inapplicable to his office. I think, in fact, that this is quite unlikely. There are many other plausible explanations for the facts described by Tillman and Blackman, including that offered by the House committee in 1834 and those suggested by Jonathan Hennessey in this article (see pages 27-39). However, even if the professors were correct in their view of early historical practice, it would be of little moment to the correct interpretation of the Foreign Emoluments Clause.