One of the world’s leading scholars on the previously arcane Emoluments Clause of the Constitution has filed a friend-of-the-court brief arguing that President Donald Trump is not violating the provision by having an ownership interest in his private hotel business.
Seth Barrett Tillman, an American scholar at Maynooth University in Ireland, is one of the few legal scholars who have extensively studied the issue. He argues the best evidence is the behavior of America’s earliest presidents — including George Washington.
Tillman’s lawyers, Josh Blackman and Robert Ray, who succeeded Ken Starr as special counsel in the Whitewater case, cite a public auction at which Washington bought plots of land in the new capital city.
“If Plaintiffs are correct, then Washington openly committed impeachable offenses under the watchful eyes of prominent members of the founding generation, political opponents, and commercial rivals,” the brief states.
Ray and Blackman filed the legal arguments in the Southern District of New York, where Citizens for Responsibility and Ethics in Government, along with a group of businesses that claim they have been unfairly disadvantaged, have sued Trump for receiving money through the real estate company in which he maintains a large ownership interest. It is one of two legal challenges to Trump based on the Emoluments Clause; the attorneys general of Maryland and the District of Columbia filed one earlier this month.
The argument against Trump is that it is unconstitutional for the president to receive anything of value from a state or federal government, or from a foreign government.
Every time a foreign government official stays at a Trump hotel, according to the allegations, the president violates the Constitution.
Tillman’s brief argues that the well understood contemporary meaning of the term “emolument” was compensation for the discharge of a public office. It does not apply to private business transactions, he argues.
“It is simple: bribes are illegal, and are an enumerated ground for impeachment under Article II, Section 4,” the brief states. “Emoluments are lawfully authorized by Congress. The two are mutually exclusive and governed by different constitutional provisions. Plaintiffs reject this long-settled understanding.”
“This is not the model of a diabolical schemer, attempting to evade his constitutional duties through subterfuge.”
The plaintiffs argue that even a fair-market business transaction with a state or federal government would violate the Constitution. Washington’s purchases at public auction in 1793 contradict that allegation.
“This is not the model of a diabolical schemer, attempting to evade his constitutional duties through subterfuge,” the brief states. “There was none: it was all done in public. Washington was acutely aware of how his every action would be scrutinized.”
The practices of presidents who helped write the Constitution contradict the argument that presidents cannot receive anything of value from foreign officials. The brief lays out a number of examples of early presidents accepting gifts from foreign government officials:
- Washington accepted a framed full-length portrait of King Louis XVI from the French ambassador to the United States. He also accepted a key to the Bastille from Marquis de Lafayette, who at the time was a French government official.
- Thomas Jefferson accepted a bust of Czar Alexander I from the Russian government. He also took gifts from Indian tribes passed on by Lewis and Clark Western expedition. Those gifts from Indian tribes — whom Jefferson considered foreign nations — remain on display at Monticello to this day.
- James Madison received a pair of pistols from Gen. Ignacio Alvarez, a South American revolutionary head of government. It appears Madison gave them to his successor, James Monroe, another founding father.
- The lack of complaint about Jefferson is significant, the brief argues. Unlike the lionized Washington, Jefferson had many political enemies who surely would have pounded on constitutional impropriety, the brief states.
The brief argues that not only do payments to Trump Organization properties not amount to emoluments but that the Emoluments Clause does not even apply to the president. In support of this argument, the brief cites first Treasury Secretary Alexander Hamilton, who took nine months to comply with a Senate request to compile a list of “every person holding any civil office or employment under the United States.”
Hamilton’s list covered 90 manuscript-sized pages.
“But Hamilton did not include the President, Vice President, Senators, or Representatives,” the brief states. “In other words, Hamilton did not include any elected positions in any branch.”
That, the lawyers argue, is compelling evidence that the president is exempt from the Emoluments Clause. That is not to say that Trump should not have done more to separate himself from his business before taking office, the brief states.
“Defendant’s business activities are less than ideal, but they are not redressable in court,” says the brief.