Debunking the claim that the Foreign Emoluments Clause doesn’t cover Presidents

18 Tuesday Jul 2017

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Several days ago, I wrote skeptically about the claim advanced by Seth Barrett Tillman and Joshua Blackman that the Foreign Emoluments Clause of the Constitution doesn’t cover Presidents.  The online magazine Slate has just published a more extensive, and in my view, dispositive critique of the Tillman-Blackman argument.  The article by Professors Gautham Rao and Jed Handelsman Shugerman, is accessible here, and well worth reading.

A bit more on emoluments: Fun with old dictionaries

17 Monday Jul 2017

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Some readers may be aware that an organization called Citizens for Responsibility and Ethics in Washington (CREW) has filed a lawsuit claiming that Mr. Trump has violated the foreign emoluments clause of the constitution by accepting, through his various businesses, payments from foreign governments.  The Justice Department has sought to have the CREW suit dismissed.

One of DOJ’s arguments is that, at the time the Constitution was written and ratified, the word “emoluments” would have been understood as a term of art meaning “profit arising from office or employ.”  The implication of this definition is that the foreign emoluments prohibited by the Constitution would not include payments made to a president or other office holder as part of private business transactions formally separate from the conduct of the recipient’s government office.

DOJ’s endorsement of this narrow definition of emolument rests heavily on two particular dictionaries in circulation during the founding period –  A Complete and Universal English Dictionary on a New Plan by James Barclay and The Difference between Words, Esteemed Synonymous, in the English Language by John Trusler.

In a new article, The Definition of ‘Emolument’ in English Language and Legal Dictionaries, 1523-1806, Professor John Mikhail of Georgetown Law School,  pretty thoroughly shreds DOJ’s dictionary-based argument.  He shows that almost every dictionary extant in the founding era contained far broader definitions of “emolument,” definitions that easily embrace payments to an office-holder’s private businesses.  Not only does it appear that DOJ cherry-picked its dictionaries, but Professor Mikhail makes a convincing case that the two dictionaries in question were probably not either possessed or relied upon by the founders.  (The best part of the Mikhail article for true legal history nerds is that it includes pdf images of the relevant pages from all the old dictionaries.}

Professor Mikhail’s work by no means proves that the Foreign Emoluments Clause does cover Mr. Trump’s business transactions, but it does cut away one prop of the DOJ argument to the contrary.

Emoluments: A teaser

14 Friday Jul 2017

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Should impeachment of Mr. Trump ever become a serious prospect, the Foreign Emoluments Clause of the constitution may be part of the conversation.  Article I, Section 9, Clause 8, in which the clause resides, 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.

The question in Mr. Trump’s case, of course, is whether payments by foreign governments to any of Mr. Trump’s businesses constitute prohibited emoluments.  Some observers take the position that payments, however large and lucrative, that are part of commercial transactions are not “emoluments.”  Others, emphasizing the anti-corruption purpose of the clause and recognizing the likelihood that foreign governments will try to curry favor with Mr. Trump by enriching him, disagree.

Another strand of the argument relates to the even more fundamental question of whether a president is covered by the Clause at all.  The most vocal exponent of the view that presidents aren’t covered has been a fellow named Seth Barrett Tillman, a lecturer in law from, of all places, the National University of Ireland in Maynooth.  He and co-author Josh Blackman had an op-ed in the New York Times yesterday espousing this view.

I haven’t yet studied the emoluments question, so I do not want to be unduly dismissive of Professor Tillman’s position.  Still, at first blush, his argument seems thin for at least two reasons.

First, his position rests heavily on the fact that several early presidents accepted and kept single ceremonial gifts like the key to the Bastille the Marquis de Lafayette gave George Washington, or the bust of Czar Alexander I sent to Thomas Jefferson by the Russian government.  Tillman discounts the fact that later presidents either treated such gifts as property of the nation or, if they wanted to keep them personally, asked congressional permission.  Tillman’s argument that events in the founding era have more interpretive value than later practice is a common trope in constitutional debate.  But it is never a dispositive argument, and, to me, carries even less weight than usual when it relates to events as obscure as the receipt of single ceremonial diplomatic presents.

After all, the point of the 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.

Second, when interpreting constitutional language, considerable weight ought to be given to its apparent purpose. Again, the foreign emoluments clause was enacted because the Framers were realists who recognized that men are not angels and that the judgment even of persons of moderate virtue can be distorted by sufficiently generous rewards.  While those Framers would not, I submit, have had the least concern on this score about one-off ceremonial gifts of a key or a bust, they would quite certainly have thought that payments of hundreds of thousands or even millions of readily spendable dollars could have the corrupting effect they feared.

These considerations hardly settle the question.  Professor Tillman also makes the textual argument that the phrase “person holding an office of profit or trust under [the United States” doesn’t include any elected official.  And there remains the, to me, more substantial question of whether payments, however large, to a president’s businesses can be prohibited emoluments.  I’ll return to those another time.

Until then, if you are interested in reading more, I commend you to this page of the Constitution Center website, which explains the issue in some detail and features the differing perspectives of Professor Tillman and Professor Zephyr Teachout.

The Russian lawyer meeting and election law crimes: The experts weigh in

13 Thursday Jul 2017

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By Frank Bowman

In yesterday’s post, I expressed grave doubt about the widely discussed suggestion that the June 16, 2016 meeting between Donald Trump, Jr., Jared Kushner, and Paul Manafort and a Russian lawyer constituted a criminal violation of federal election law. To check myself, I turned to the experts on CrimProf, a listserve that includes a high percentage of the country’s criminal law professors.  I put my analysis before them and asked for feedback.

A lively online discussion ensued, from which I learned a great deal.  I promised the group that I’d try to summarize the main points they raised and share them here, along with my own conclusions.  So here goes:

The law in question – it really is criminal

Title 52, United States Code, Section 30121, makes it unlawful for a “foreign national” to make “a contribution or donation of money or other thing of value … in connection with a Federal, State, or local election.” The statute also makes it unlawful for an American to “solicit, accept, or receive” such a contribution from a foreign national.

A few folks in the national media have raised the question of whether a violation of this statute could be criminal, or whether violations were solely within the province of the Federal Election Commission.  On CrimProf, Professor Peter Henning pointed out that the operative criminal statute is 52 USC Sec. 30109(d), which provides:

(1)(A) Any person who knowingly and willfully commits a violation of any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure–

(i) aggregating $25,000 or more during a calendar year shall be fined under Title 18, or imprisoned for not more than 5 years, or both; or

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar year shall be fined under such title, or imprisoned for not more than 1 year, or both.

In other words, an American who “knowingly and willfully” violates the Section 30121 prohibition on contributions from foreign nationals commits a crime.  It was suggested that since Section 30109(d)(1)(A) refers to “any provision of this Act which involves the making, receiving, or reporting of any contribution, donation, or expenditure” and doesn’t specifically mention “soliciting” a foreign contribution, that it wouldn’t apply to Trump Jr. and friends if, as they claim, they didn’t actually get anything from the Russian lawyer.  That’s a possible reading, but I think the better interpretation is that the quoted language is simply a cross-reference to those sections of federal election law which generally relate to contributions, donations, or expenditures.

“Willfully”

Professor Miriam Baer emphasized that the word “willfully” in the criminal statute is sometimes interpreted by federal courts to require that the defendant was consciously aware that he was committing a crime.  Professor Henning noted that sometimes “willfully” requires only a general knowledge of wrongfulness, citing United States v. Danielczyk.  Particularly, if “willfully” in Section 30109 has the strong meaning, then Trump Jr. and friends could raise two defenses.

First, Trump Jr. and Jared Kushner could argue that, as total political neophytes, they had no knowledge of federal election law and thus couldn’t have acted “willfully.”  Of course, Paul Manafort, a career political operative most of whose business in recent years has been with foreigners, could not plausibly make the same claim.  And the three of them attended the meeting together and presumably discussed its purpose in advance.

Second, as will become clearer below, it would be a real stretch to apply Section 30121 to the Russian lawyer meeting (at least given what we now know).  The best criminal law minds in the country disagree on the point.  The more doubtful it is that going to meet the Russian lawyer was a violation of election law, the harder it is to prove that Trump Jr. and friends acted “willfully” in the sense of being consciously aware that they were doing something illegal.

The big problem – “thing of value”

The doubt I expressed yesterday about the applicability of  Section 30121 to the Russian lawyer meeting was based on the phrase “thing of value.” The Russian lawyer was a foreign national, so it would be illegal for an American to solicit “a contribution or donation of money or any other thing of value” in connection with a federal election. The question is whether what Trump Jr. and company thought they were going to get –derogatory information about Hillary Clinton — would constitute a “thing of value” under this statute.

I argued two things:

First, although in many federal criminal statutes “thing of value” includes intangibles, this election statute seems best understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seemed too intangible to fit that template.

Second, and more importantly, I argued that applying the law this way would be absurd and probably violative of the First Amendment. If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would be true of any candidate for federal office or representative thereof who ever asked a non-American for unflattering information about an opponent.  And that can’t be right.

I heard several responses to these arguments:

The contention that information counts because it has economic value

Some very reputable scholars, including election law experts, have pointed out that federal courts have construed “thing of value” as used in campaign finance statutes to refer to intangibles, including various forms of information.  However, I am unconvinced that any of the cases cited treat pure information, in the sense of negative facts about an opponent, as a thing of value.  All of them appear to deal with services of one kind or another that have an economic value on the open market, such as contributor lists, polling services, campaign literature, and the like.

Nonetheless, on CrimProf, Professor Richard McAdams perceptively observed that, even though it seems absurd to suggest that asking a for information useful to a campaign could be soliciting a thing of value under election law:

There is an absurdity on the other side. If information cannot be a thing of value because it is intangible, then polling firms or research firms could provide mass quantities of information with a serious market value and it wouldn’t matter if the supplier were foreign (or had already maxed out in dollar contributions). So there needs to be some murky distinction between soliciting information by asking a simple question the isolated answer to which requires no great research and therefore has no market value, and asking for a volume of information that would fetch a high price from a research firm.

Professor McAdams went on to suggest that, because the information Trump Jr. expected to get from the Russian lawyer was said to emanate from the Russian government, it might be akin to the product of a commercial research firm and thus constitute a thing of value under the statute.  A lively discussion ensued amongst the criminal law cognoscenti.

Having considered all the arguments carefully, I concluded:

  1. Information services would probably fall under the statute.  If a campaign were to approach a foreign-owned polling firm or data analysis company and say, “We’d like you to perform polling or data analysis and give us the results, free of charge,” that would surely count as soliciting something of value.  The same might also be true if the foreign company had already performed the work and was offering the results for sale, or was keeping it secret as proprietary information.
  2. But the dividing line can’t be that the information sought happens to be available from a foreign governmental entity that has already expended economically valuable resources to obtain it.  Consider the example in my blog post of yesterday of a campaign seeking information about the rumor that an opponent was a regular visitor to juvenile sex traffickers in Thailand.  Assume that the best source of information about this possibility was the Thai national police.  They would certainly have employed a large, costly investigative apparatus to secure the information in question.  Would we really say that it’s a crime to ask the Thai government about this?

 

Professor McAdams, while conceding the force of this point, remained troubled by the fact that, in this case, Trump Jr. and company were consciously seeking the aid of a foreign government, one traditionally hostile to the United States, that they were told was trying to influence the outcome of the American election.  To put it as mildly as possible, I share that concern.  Indeed, it is this precisely this aspect of the meeting that ought to appall any patriotic American and that makes it so genuinely earth-shaking.

That said, merely because this meeting was self-evidently wrong does not make it a violation of 52 U.S.C. Sections 30121 and 30109(d).  I cannot see how one could sensibly interpret these statutes to prohibit the Trump Jr. – Russian lawyer meeting while permitting the nearly infinite range of informational inquiries by American campaigns to foreign persons and governments that plainly ought to be permissible if the American electorate is to have all the information it ought to have when making democratic choices.

As but one example among many of the complications such a distinction would involve, consider the suggestion of several CrimProf colleagues that it matters that Russia is traditionally hostile to the interests of the United States and was consciously trying to influence the election.  How, for purposes of Section 30121, would one distinguish between hostile and friendly foreign powers? Is China, our largest trading partner, but a geopolitical rival, hostile?  If Russia is hostile now, was it hostile during the Yeltsin era and before Putin?  Does the foreign power have to be both hostile and trying to influence the election?  Or is a desire to influence the election sufficient? A good many of our NATO allies were horrified at the prospect of Mr. Trump as president.  Suppose that an agency or official of one of them possessed damaging, but true, information on Mr. Trump.  Would we seriously propose to make it criminal for a supporter of Secretary Clinton to ask that agency or official for the information?

The First Amendment arguments

I am not a First Amendment expert.  However, in yesterday’s post, I surmised that applying Section 30121 to the Russian lawyer would violate the First Amendment.  After listening to the arguments of those better informed on this point, I am convinced that my original concern is valid.  Rather than trying to summarize the arguments here, I commend my readers to the published debate between Professor Richard Hasen who ridicules the First Amendment in argument in Slate, and Professor Eugene Volokh, who articulates the First Amendment argument for the Washington Post.  Suffice it to say that I think Professor Volokh has by far the better of this argument.

Bottom Line

I remain unconvinced that, based on the known facts, the election law statutes cover what Trump Jr. and company are said to have done.  I am convinced that even if the language of the statutes could be stretched that far, such an interpretation would run afoul of the First Amendment.  Finally, I am absolutely convinced that – absent significant new information – no sensible prosecutor, and certainly no sensible prosecutor with a honest claim to political neutrality, would seek an indictment under the referenced election law statutes.

This by no means changes my view that the Russian lawyer meeting is a huge deal.  It may be relevant, even central, to whether other criminal laws may have been violated. More importantly, it confirms that the Russian collusion investigation is not a wishful figment of the liberal imagination, but is instead a serious business and a serious threat to Mr. Trump’s presidency.

I would nonetheless close on this cautionary note.  As conservative Andrew McCarthy eloquently contends in National Review,  the critical point is not whether the Russian lawyer meeting in particular or the Trump campaign’s contacts with Russia generally were crime, but whether they constitute impeachable matter.  I yield to no one in my disapproval of Mr. Trump, but McCarthy is right that anti-Trump lawyers and scholars err when they strain to shoehorn every Trumpian malfeasance into a criminal statute. At its most extreme, this behavior is both unseemly and hypocritical.  We must be careful to apply the same standards of professional judgement to Mr. Trump and his subordinates that we would apply to political figures we like better.  Otherwise, we risk depleting the credibility of the professoriate, which will be sorely needed in the event criminal charges against Trump administration officials or impeachment of Mr. Trump himself ever become live possibilities.

 

Criminal election law violations by Trump Jr. and company? I don’t think so

12 Wednesday Jul 2017

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At the end of yesterday’s post about the meeting between Donald Trump, Jr., Jared Kushner, Paul Manafort and the Russian lawyer, I alluded to the suggestion flying around the internet that the meeting might have violated criminal provisions of federal election law.  I deferred commenting on this suggestion until I had a chance to read up on it a bit.

Having done my reading, I incline to two conclusions:

(1) The Russian lawyer meeting was genuinely scandalous and gives real impetus to the general concern that the Trump campaign colluded with Russian interests to affect the 2016 election, or at the least tried to, and (2) While that meeting might form some part of the evidence that Trump Jr. and others violated the federal conspiracy statute, 18 USC 371, or that Trump Sr. obstructed justice in relation the Comey firing, just asking someone who happens to be a foreign national if they have negative information about one’s political adversary can’t possibly be a federal felony.

The statute at issue is 52 U.S.C. 30121, which states:

It shall be unlawful for—

(1) a foreign national, directly or indirectly, to make—

(A) a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election …

(2) a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) … from a foreign national.

 

The Russian lawyer was a foreign national (whether or not she was an official or quasi-official emissary of the Russian government), so it would be illegal for Trump Jr. and company to solicit “a contribution or donation of money or any other thing of value.”  The question is whether derogatory information about Hillary Clinton would constitute a “thing of value” under this statute.

For a pretty comprehensive  review of the arguments about this, see Dahlia Lithwick’s piece yesterday in Slate. The line-up of legal heavyweights willing to entertain the idea that what political pros call “opposition research” could count as a thing of value under Section 30121 is impressive, but I can’t buy it.

First, on the technical question, I’d side with the last expert Dahlia quotes, Professor Bob Weisberg of Stanford.  Under many federal criminal statutes, the phrase “thing of value” includes intangibles, but I think Professor Weisberg is right that, in this context, the law is better understood to refer to things that have readily quantifiable economic value.  Negative information about one’s political opponent seems a bit too intangible to me.

But the larger point that all those who think a Section 30121 violation occurred here seem to be missing is the sheer absurdity of their position.  If Trump Jr. violated Section 30121 just by asking the Russian lawyer if she knew anything bad about Hillary Clinton, then the same would necessarily be true of any candidate for federal office or representative thereof who ever asked any person who was not a US citizen for unflattering information about an opponent.

Suppose a congressional candidate heard rumors that her opponent was making regular sex tourism trips to Thailand to engage in sex with minors.  Can anyone seriously believe that it would be a federal crime to ask a Thai national for proof that this was true?

Or suppose that a presidential candidate heard rumors that one of his primary opponents was falsely claiming to have graduated from Oxford University in England.  Would we really suggest that the candidate’s representatives could not legally call up the English citizen registrar of Oxford University to find out the truth?

The proposed reading of Section 30121 is not only absurd, but is probably in fatal tension with the First Amendment.  How could the federal criminal law possibly be read to bar candidates in federal elections from seeking information necessary for informed democratic choice from the 7 billion people who don’t happen to be US nationals?

As Mr. Bumble said, the law is sometimes “a ass, a idiot.”  But it is not this idiotic.

I repeat that the Russian lawyer meeting is a very big deal.  But a prosecutable violation of Section 30121 it was not.