The first filed of the three Foreign Emoluments Clause cases was Citizens for Responsibility and Ethics in Washington (“CREW”) v. Trump. Five academics (the “Legal Historians”) filed an amicus brief (the “Legal Historians Brief”) in support of the plaintiffs. The Legal Historians Brief stated: “As holders of an office ‘of trust’ under the United States, [presidential] electors [like the President] would also be subject to the [Foreign Emoluments] [C]lause.”
The Legal Historians claim regarding presidential electors is perplexing. They cite no authority for this position. The Legal Historians quote anti-federalist George Mason for the proposition that: “the electors in the states might also [like the President] ‘be easily influenced,’ by foreign emoluments.” But Mason does not actually say presidential electors fall under the scope of the Foreign Emoluments Clause and its Office-language. The Legal Historians also quote Edmund Randolph, a mercurial figure who chose not to the sign the Constitution at the Philadelphia Convention, but argued for ratification at his state’s (i.e., Virginia’s) ratification convention. According to the Legal Historians, “Randolph argued that the requirement that electors be appointed separately in the states and have to vote on the same day ‘renders it unnecessary and impossible for foreign force or aid to interpose.’” If Mason’s language tends to suggest presidential electors fall under the aegis of the Foreign Emoluments Clause, Randolph’s statement suggests just the opposite. In any event, none of the language quoted appears to be direct or substantive evidence, even of the (weak) original public expectations variety, for their position.
More troubling is that there is a substantial body of authority taking the position that presidential electors are state positions, not federal positions, and so entirely beyond the scope of the Foreign Emoluments Clause and its Office . . . under the United States-language. The Legal Historians did not discuss this line of authority. There is a more recent line of academic authority, initially put forward by Vasan Kesavan, that notes that the Constitution’s Religious Test Clause distinguishes offices under the United States from public trusts under the United States. Kesavan argues that the position of presidential elector, although a federal position, is a public trust under the United States, as opposed to an office under the United States. Again, this alternative view was not discussed by the Legal Historians.
Failing to discuss academic authority and nonbinding federal case law is not best practice. But it is certainly within the norms of the legal profession, particularly in a brief where space is scarce. Failing to discuss contrary Supreme Court authority is another matter entirely. In 1867, in United States v. Hartwell, the Supreme Court held: “The term [‘office’] embraces the ideas of tenure, duration, emolument, and duties.” Presidential electors fail—each and every element—of this four-factor test....
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Seth Barrett Tillman, Presidential Electors and the Brief of the Legal Historians in CREW v. Trump, New Reform Club (Feb. 22, 2018), https://reformclub.blogspot.com/2018/02/presidential-electors-and-brief-of.html
Seth Barrett Tillman, Presidential Electors and the Brief of the Legal Historians in CREW v. Trump (Feb. 22, 2018), https://ssrn.com/abstract=3128087 (this is Part 1 of a larger paper which will appear in South Texas Law Review).