"There is always a philosophy for lack of courage."—Albert Camus

Monday, March 27, 2017

Novel Questions of Pure Law and Discovery



The Constitution’s Domestic Emoluments Clause*** states:

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.[1]

The Constitution’s Foreign Emoluments Clause states:

[N]o Person holding any Office of Profit or Trust under them [i.e., the United States], 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.[2]

In regard to the Domestic Emoluments Clause, where the federal government or a state government engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by the President of the United States (in his private capacity), but not with the President, it is not clear that such a transaction falls under the aegis of the Domestic Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This issue must be resolved in any litigation seeking to assert that the Domestic Emoluments Clause applies to such business transactions with the President. As a question of pure law, this issue ought to be judicially resolved prior to any court ordered discovery.

Much the same can be said in regard to the Foreign Emoluments Clause. No court of the United States (of which the Author is aware) has had occasion to determine whether a foreign state owned or foreign state controlled commercial entity is a “foreign state” for the purposes of the Foreign Emoluments Clause. This is a novel threshold question of pure law which must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between a constitutionally proscribed federal officeholder (i.e., an “officer … under the United States”) and a foreign state owned or foreign state controlled commercial entity. As a question of pure law, this issue ought to be judicially resolved prior to any court ordered discovery.

Similarly, where a foreign state engages in a business transaction with a private commercial entity owned (in whole or in significant part) or controlled (in whole or in significant part) by a constitutionally proscribed federal officeholder (in his private capacity), but not with the officeholder, it is not clear that such a transaction falls under the aegis of the Foreign Emoluments Clause. Indeed, no court of the United States (of which the Author is aware) has had occasion to resolve this novel threshold question of pure law. This issue, too, must be resolved in any litigation seeking to assert that the Foreign Emoluments Clause applies to business transactions between private commercial entities owned or controlled by a constitutionally proscribed federal officeholder and a foreign state. And, here too, as a question of pure law, this issue ought to be judicially resolved prior to any court ordered discovery.

Where a transaction has a commercial entity on both sides, as opposed to an actual foreign state and an actual constitutionally proscribed federal officeholder, the policy concerns animating the Foreign Emoluments Clause must be much attenuated.


Seth





Seth Barrett Tillman, Novel Questions of Pure Law and Discovery, The New Reform Club (Mar. 27, 2017, 6:58 AM), http://tinyurl.com/lpjudfk

*** I am following the odd naming convention for the clause used by the Plaintiff in CREW v. President Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017) (Abrams, J.). See note [1].



[1] U.S. Const. art. II, § 1. cl. 7 (the so-called Domestic Emoluments Clause, a/k/a Presidential Compensation (or Emoluments) Clause) (emphasis added).
[2] U.S. Const. art. I, § 9, cl. 8 (the Foreign Emoluments Clause, a/k/a Foreign Gifts (or Titles) Clause, or Emoluments Clause) (emphasis added). 

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