The New York Times published the flimsiest defense of Trump’s apparent emoluments violations.

The New York Times Published the Flimsiest Defense of Trump’s Apparent Emoluments Violations Yet

The New York Times Published the Flimsiest Defense of Trump’s Apparent Emoluments Violations Yet

The law, lawyers, and the court.
July 17 2017 5:42 PM

Presidential Revisionism

The New York Times published the flimsiest defense of Trump’s apparent emoluments violations yet.

Photo illustration by Slate. Photo by Saul Loeb/Getty Images. Painting by Gilbert Stuart/Wikipedia.
This is what the Framers were trying to prevent, not enable.

Photo illustration by Slate. Painting by Gilbert Stuart/Wikipedia. Photo by Saul Loeb/Getty Images.

The Framers of the Constitution were deeply committed to preventing the corruption of their new republic. In fact, their anger over the corruption of the British monarchy and Parliament was a driving force behind the American Revolution. So the Framers built systemic safeguards to prevent American officials from falling prey to corruption.

In recent months, one of those safeguards, the Emoluments Clause, has received a great deal of attention. This clause states that “no Person holding any Office of Profit or Trust under the United States, shall, without the Consent of Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” Lawsuits against President Donald Trump contend that the clause bars him from continuing to accept payments from foreign governments through the Trump Organization’s many holdings.

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Joshua Blackman and Seth Barrett Tillman, authors of an amicus brief defending Trump, assert counterintuitively that this clause does not apply to the office of the president. Why? They articulated their position in the New York Times last week: First, they argue that the office of the president is not “an office under the United States.” Second, they point out that Presidents Washington and Jefferson accepted a handful of diplomatic gifts. (For Washington, it was barely a literal handful: a key and a painting.) Blackman and Tillman claim we should pay more attention to what presidents did than what the Constitution plainly states. They are wrong on both points.

First, there is no historical text hinting that the Framers shared Tillman’s and Blackman’s idiosyncratic interpretation. In fact, Edmund Randolph—who would go on to be the nation’s first attorney general—explained at the Constitutional Convention of 1787 that the clause was meant “to exclude corruption and foreign influence” and “to prohibit any one in office from receiving or holding emoluments from foreign states.” During the Virginia ratifying convention, Randolph was even more explicit about the problem of “the president receiving emoluments from foreign powers.” He described the reasoning behind the clause, saying that “it is impossible to guard better against corruption” than by having a president who “is restrained from receiving any present or emoluments whatever.”

Randolph’s sage words suggest that it is highly implausible that the Framers would have exempted the president from a constitutional safeguard against the title-trading tendencies and potential influence buying of competing European powers.

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And when it comes to the diplomatic gifts of Washington and Jefferson, our courts do not treat the practices of the early presidents or Congress as dispositive. John Adams and the Federalists passed and signed the Alien and Sedition Acts in 1798, which clearly infringed on freedom of speech and of the press. The first Congress passed the 1789 Judiciary Act, but the Marshall Court famously struck part of it down 14 years later in Marbury v. Madison.

Tillman and Blackman are basically arguing Richard Nixon’s infamous claim, “When the president does it, that means it is not illegal.” Their position is, essentially: If the founders did something in office, that means it was legal. The Framers undoubtedly deserve credit for writing a Constitution that recognized human fallibility and offered safeguards such as the Emoluments Clause. Tillman and Blackman’s version of originalism requires us to act as though, once in office, the founders were capable of doing no wrong.

The evidence that “offices under the United States” applied only to appointed officials and not to elected ones, meanwhile, also does not pass muster. Neither the clause itself nor any other part of the Constitution make such a distinction. To support their claim, Tillman and Blackman offer that an “office under the Crown” in England referred to appointed offices and not the king. There is no supporting historical evidence that the founders, whose criticism of the British monarchy is no obscure secret, equated the president with the king for this or any purpose.

Ultimately, the central piece of documentary evidence for this emoluments argument is a manuscript version of a 1792 document by Secretary of the Treasury Alexander Hamilton. That document omitted President George Washington from a list of “Persons Holding Civil Offices or Employments Under the United States.” Yet the same document, when it was actually printed in official records of the early U.S. government, listed the president and vice president under the heading of “persons holding civil offices or employments under the United States.” In every subsequent report of the Treasury Department listing the employees and offices “under the United States”—from Treasury Secretary Hamilton himself and his successors—the president is included with the rest of the federal officers on the “civil list.” That Tillman and Blackman bury this fact while emphasizing the original Hamilton version is remarkably convenient for their argument.

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There is a more likely explanation for why Hamilton initially omitted the president or vice president. The word “civil” is used only twice in the Constitution, and one of the passages is specifically about guarding against another form of emoluments-related corruption. That passage ensures that members of Congress can’t be appointed to any new “civil office” they created or accept such an office’s bigger salary if they voted to increase it. The Senate had asked Hamilton to produce a list of “civil officers” and their salaries in 1792 at a crucial time for filling appointments, which indicates they had this passage in mind. It seems likely that Hamilton initially focused his list for his immediate practical task, for which the president and vice president were irrelevant. But when it was time to print the official version, his Treasury Department added the president and vice president because they too were “civil officers under the United States.”

Tillman and Blackman additionally point to three early state constitutions for support, but those claims also dissolve under scrutiny. In the Pennsylvania, Georgia, and Vermont constitutions, the phrase “office under the state” (or “commonwealth”) distinguished executive offices from legislative representatives. But there is no evidence for their claim that the distinction went further, separating elected from appointed officers at the state level, and certainly not at the federal level.

The authors want us to believe that the clause applies to almost every federal employee other than the president and vice president. It’s worth noting that when the Department of Justice filed its brief for President Trump in this lawsuit, it did not include this argument, which Tillman has been floating since 2013.

In order to accept this re-interpretation of the Emoluments Clause, the authors ask a lot of us: to find a hidden structural code, but ignore a plain reading of the constitutional text; to deify Washington and Jefferson, but to defy what contemporaries explicitly said about the clause; to disregard the way the clause has been applied by presidents, Congress, and other officials from the 1830s to the present; and finally, to ignore a substantial historical record. In this question, the text, the historical evidence, common sense, and the spirit of the law are clear: All point to a desire to prevent the exact sort of corrupt profiteering in which President Trump is actively engaged.

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Gautham Rao is an assistant professor of history at American University. He is a co-author on an amicus brief in CREW v. Trump.

Jed Handelsman Shugerman is a Fordham law professor and the author of The People’s Courts and shugerblog.com. He is a co-author on an amicus brief in CREW v. Trump.