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By Frank Bowman

Impeachment aficionados will be aware that a group calling itself Citizens for Responsibility and Ethics in Washington (CREW) has filed suit in the Southern District of New York seeking a declaration that Mr. Trump’s copious and lucrative business transactions with foreign governments and entities violate the Foreign Emoluments Clause of Article I, Section 9, which reads as follows:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, 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.

Leaving to one side the question of whether the CREW plaintiffs have standing to bring the action, the central dispute is whether money paid to a president as a result of commercial transactions is a prohibited emolument.

As discussed on this site earlier in the year, Seth Barrett Tillman, an industrious professor from the National University of Ireland – Maynooth, has opened a second front in the emoluments battle with his claim that the foreign emoluments clause doesn’t apply to the president, or indeed to any elected federal official such the vice-president or members of congress.  In recent weeks, Professor Tillman has won two victories, one minor and another potentially less so.

His petit coup, recounted in a recent New York Times article, involved a dispute over the provenance of certain documents allegedly signed by Alexander Hamilton.  To make a long story short, in 1792, the Senate asked Hamilton, then the Secretary of the Treasury, to provide a list of all salaries and emoluments of “civil offices under the United States.” In a letter, Hamilton provided a list that included executive branch appointees, but not the president or vice president. Prof. Tillman contends that this letter is proof that Hamilton believed that the president is not a “person holding any Office of Profit or Trust under [the United States]” for purposes of the foreign emoluments clause.

You may think that this is a pretty thin argument (and as discussed below, it is), but a group of distinguished legal historians led by Professor Jed Shugerman who rejected Tillman’s interpretation in their amicus brief made an embarrassing mistake.  They pointed to a later 1793 document in government archives which does list the president and vice-president as holding civil offices under the United States and which appears to bear Alexander Hamilton’s signature.  They trumpeted this second document as conclusive disproof of an important prong of the Tillman position, only to have Tillman show that the second document almost certainly was not signed by Hamilton, but by some anonymous government functionary. Red faces abounded.  And the legal historians (very graciously) issued apologies for impugning the integrity of Tillman’s archival research.

Professor Tillman’s potentially more significant victory came in a letter from the Department of Justice to the judge in the CREW lawsuit in which DOJ stated that it is not conceding that the Foreign Emoluments Clause applies to the president.  This is notable because the Department’s position has traditionally been to the contrary, as most recently embodied in a 2009 memo from the Office of Legal Counsel opining that the president is “surely” covered by the clause.  So far, the Department has not reversed its 2009 opinion or affirmatively pressed the claim of presidential exemption, but the letter opens that possibility.

So does Tillman have a good argument?

In a word, no.

Tillman’s claim that the Foreign Emoluments Clause doesn’t include the president is based on two doubtful premises.

First, he contends that the phrase “office of profit or trust under [the United States]” doesn’t include the president because, he says, in English practice, the phrase “office under the Crown” referred not to the King or to elected offices, but only to appointed offices whose authority derived from the appointing hereditary sovereign.  But in the United States, the sovereign is not the president, but the people as a whole, or if one wants to take a strongly federalist view of the matter, the union of states represented by the elected central government.  All American officeholders — including the president — hold office “under the United States” because they derive authority from, and are not the sources of, the general government’s democratically legitimated sovereign power.

And even if this were not self-evidently the case, there is no plausible founding-era evidence that the drafters or ratifiers of the constitution viewed the phrase “office of profit or trust under” the United States in Professor Tillman’s peculiarly Anglophile sense.  Indeed, as the legal historians noted, the only direct expression of opinion by constitutional founders expressly endorses the view that the president is covered by the Foreign Emoluments Clause. During the Virginia ratifying convention, Edmund Randolph and George Mason plainly stated that presidents are bound by the clause, and Randolph, who would become Washington’s attorney general, went further to declare that a president who received foreign emoluments could be impeached for doing so.

The sole statement from a founding-era figure to which Tillman can point is the Hamilton response to the Senate inquiry.  But, as the legal historians convincingly explain, the Senate was asking for an accounting of “civil offices” and their salaries for a particular reason.

The request came in 1792, at the end of President Washington’s first term and towards the close of the second session of Congress. The term “civil offices” is distinct from the phrase in the Foreign Emoluments Clause (“office of profit or trust under [the United States]”), but matches the language of Article I, Section 6:

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The most plausible explanation for the Senate request is that the Senate wanted to know which “civil offices” federal legislators would be barred from accepting, and which offices those standing for election to Congress for the first time in 1792 would be obliged to surrender if elected.  The presidency, being elective rather than appointive and thus irrelevant to the point of the inquiry, Hamilton did not include it.  What we can be absolutely sure of is that the Senate did not ask for, and Hamilton did not give, an opinion on whether the president is covered by the Foreign Emoluments Clause.

Before moving to Tillman’s next point, it is worth pausing on Article I, Section 6, to consider one of the many unpalatable implications of his theory.  If he is right and the phrase “office under the United States” does not include the president, then Article I, Section 6, does not bar the president from serving as a member of Congress while also serving as president. Which is ridiculous inasmuch as it would utterly destroy the constitution’s separation of powers.  But it is the unavoidable implication of Tillman’s argument that the framers used “office under the United States” as a term of art excluding the president.

Second, and this is the real meat of Tillman’s argument, he points to a handful of incidents in which early American presidents accepted ceremonial gifts from foreign governments or their representatives.  Washington accepted a key to the Bastille from the Marquis de Lafayette and from Louis XVI a portrait of that ill-fated monarch. Jefferson accepted a bust of Czar Alexander I.  Madison accepted a pair of pistols from a South American revolutionary, which he apparently passed on to his successor, James Monroe.  Tillman argues that these gifts prove that Washington, Jefferson, Madison, and Monroe all believed that the Foreign Emoluments Clause didn’t apply to the president, and he contends that these early incidents outweigh the roughly two centuries of subsequent practice in which both presidents and congress expressly recognized the applicability of the clause to the presidency.

Professor Tillman is deadly earnest in professing the interpretive importance of these incidents, but the moment one takes a deep breath and steps back to gain perspective, it’s plain that there’s little substance to the argument.  In the first place, as I wrote several months ago:

After all, the point of the [Foreign Emoluments] clause was to prevent foreign powers from seducing American officials away from their proper loyalties with valuable bribes.  The idea that anyone gave a moment’s thought to the idea that Washington or Jefferson would sell out the country because of a rusty old key or the marble visage of a member of the notoriously unattractive Russian royal line is just silly.  Accordingly, it is entirely unsurprising that Washington and Jefferson accepted the objects as a matter of courtesy and quite unlikely that anyone even thought about constitutional ramifications of doing so.

But the more important, and I think dispositive, point is this: If Tillman is right, then the framers wrote into the constitution a provision that would prohibit, say, the U.S. ambassador to France from accepting a jeweled snuff box from the French government, but would allow the King of France to award the President of the United States a title of nobility accompanied by a grant of land and revenues.  According to Tillman, King Louis XVI, rather than sending George Washington a portrait, could have tried to secure U.S. opposition to the Revolution of 1789 by declaring Washington the Duc de Haiti entitled to a percentage of the French crown’s revenues from that rich, sugar-producing colony.  Or George III of England could have begun the process of seducing America back into the British orbit by bestowing on Vice President Aaron Burr (a man notoriously open to extra-curricular peculation) the title of Baron of Barbados, with ownership of several large and lucrative sugar plantations.

These hypotheticals sound absurd to modern ears, but the problem of divided loyalties and overt corruption created by awards of foreign titles, lands, and revenue to heads of state and powerful notables was endemic to Europe from the Middle Ages through the 18th Century and would have been intimately familiar to the framers.

For centuries, English kings held French titles of nobility which, depending on the period, gave them French lands, which they held as feudatories of the French king, or even claims on the French crown.  Untold thousands of Englishmen and Frenchmen died in the wars fought over those territorial and dynastic claims. George III, the boogieman of the revolutionary generation, was simultaneously King of England, King of Ireland, and Duke and prince-elector of Hanover. And English critics were always troubled by the disposition of kings of the Hanoverian line to be drawn into German intramural squabbles. Phillip II was at various points King of Spain, Portugal, Naples, and Sicily, and Duke of Milan and lord of the seventeen provinces of the Netherlands. His far-flung dynastic commitments and devout Catholicism were the impetus for decades of near-constant warfare.  Endless additional examples could be cited, but the point is that the last thing the American framers would have wanted is an elected chief executive whose judgment might be distorted by enjoyment of an hereditary title or estate granted by a foreign power.

The even more acute problem that plainly concerned the founding generation was the seduction of both heads of state and lesser notables by rewards (or bribes, depending on your point of view) from foreign powers.  The practice was such a common aspect of European diplomacy as to scarcely merit remark on that side of the Atlantic. For example, the English Duke of Marlborough, Winston Churchill’s famous ancestor, was rewarded for his military successes with the title of Prince of the Holy Roman Empire and Prince of Mindelheim (a German principality). The entire European ruling class was entangled in a web of conflicting loyalties.

The American founders not only rejected hereditary aristocracy as a feature of the American future, but recoiled from the prospect of royal briberies.  In their brief, the legal historians note that Gouverneur Morris expressly cited the secret 1670 Treaty of Dover in which the King of England was induced to join France in its war against Holland both by providing him with a French mistress and paying him large sums to eliminate his debts.  Said Morris:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay, without being able to guard agst. it by displacing him. One would think the King of England well secured agst. bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Morris was not discussing the foreign emoluments clause, but the passage reveals the founders’ acute awareness of the dangers of foreign payments to a head of state.  And it casts a revealing light on Professor Tillman’s primary defense against the practical absurdity of his position.  Tillman contends that it would have made sense to the framers to exclude the president from the foreign emoluments clause because a failure to do so would subject the country to diplomatic embarrassments attendant upon a constitutionally-mandated policy against the common European practice of accepting token diplomatic gifts.  But the whole point of the Foreign Emoluments Clause was to set the United States on a new path, free of the endemic corruption of European practices of the time.  To suggest that a fear of transitory diplomatic embarrassment would move them to gut this objective by permitting the most powerful officers of the United States to accept foreign titles and money is, frankly, absurd.

In the end, Professor Tillman deserves the respect due a diligent and inventive controversialist.  But his argument cannot stand up to serious examination.