"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Sunday, February 18, 2018

How My Next Academic Article Begins

In 2017, three sets of plaintiffs in three different federal district courts brought civil actions against the President of the United States: each action alleged that the President has and continues to violate the Constitution’s Foreign Emoluments Clause. The Foreign Emoluments Clause provides:
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.
There are only a handful of federal cases discussing the Foreign Emoluments Clause. Not one of these cases has any extensive discussion of the scope of the Foreign Emoluments Clause or the scope of the clause’s Office of Profit or Trust under the United States language (“Office-language” or “Office . . . under the United States-language”). Not one of these cases, expressly or impliedly, affirms or denies that the clause applies to the President. Likewise, there is no decision by any court of record (of which I am aware) which affirms or denies that the clause’s Office-language, or closely similar language in any other constitutional provision, encompasses the presidency. If the courts were to reach the merits, the issue at hand—i.e., the scope of the clause’s Office-language—is entirely one of first impression. Still, there has been some discussion of the clause and its Office-language, primarily, but not exclusively, amongst academics. Such discussion has appeared in the Department of Justice’s Office of Legal Counsel memoranda, academic articles, popular magazines focusing on news, politics, and law, and in amicus briefs.

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.

[END]

Welcome Instapundit readers!

Here is part of the article: Seth Barrett Tillman, A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of the Foreign Emoluments Clause (Feb. 18, 2018), https://ssrn.com/abstract=3125806

Seth Barrett Tillman, How My Next Academic Article Begins, New Reform Club (Feb. 18, 2018, 2:57 AM), https://reformclub.blogspot.com/2018/02/how-my-next-academic-article-begins.html


Friday, February 16, 2018

How My Next Academic Paper Ends

The Way Forward
          As illustrated above, much of the discussion regarding the Foreign Emoluments Clause, the scope of its Office-language, and relevant historical inquiry has been less than useful. I think there are several reasons why we have come to this unfortunate state of affairs.

First, the commentators above (along with other commentators) believe their position carries a strong presumption of correctness (if not certitude), that it is my duty to displace that presumption, and that they will be the judges if I have carried that burden. Certainly, I have never agreed to such terms for this debate. Nor should I. The text of the Constitution does not expressly state that the Foreign Emoluments Clause applies to the President. The text of the Constitution does not expressly define the scope of the Constitution’s “Office of Profit or Trust under [the United States]” language. The Supreme Court has had no occasion to address the scope of the clause or the meaning of the clause’s operative language (or even the scope of similar language in other clauses.). As educated generalists who have chosen to recently inject themselves into this debate, their opinions should get a hearing. I would add: so should mine. And since, what is involved here is a debate between opinions lacking firm judicial support, our divergent ideas (and we) meet as equals. I add that the Legal Historians are supporting the plaintiffs in active litigation. Generally, in civil litigation, the burden of proof, production, and persuasion falls on the plaintiff, not on the defendant.

            Second, it is time for my intellectual opponents to be fair. Claims that they have made that they know or now know to be incorrect should be withdrawn or revised. Claims that they have made asserting the existence of documentary support, should be supported, and promptly, with actual documents—or else the claims should be withdrawn. If they have to go through this process repeatedly, they might ask themselves if their position (and expertise) is really as strong as they have led themselves and others to believe.

            Third, it is time for my intellectual opponents to be forthcoming in regard to an improved debate and debate atmosphere—an atmosphere rooted in mutual respect and goodwill. If the debate is going to be informative, might not I (or you, the reader) ask these commentators to do more than make a mere tactical claim: viz., the President falls under the aegis of the Foreign Emoluments Clause. Might not I (or you, the reader) ask these commentators to turn to the more challenging intellectual question: viz., What is the scope of the Foreign Emoluments Clause and its operative “Office of Profit or Trust under [the United States]” language? Some heavy intellectual lifting might be involved. Once they have defined that language, maybe they could, maybe they should, tell us if the clause extends to: (i) Senators, (ii) Representatives, (iii) presidential electors, (iv) federal jurors, (v) attorneys admitted to practice in federal courts, (vi) advisors to the President who lack individualized legal discretion to affect binding legal relations, (vii) state judges subject to mandamus orders by federal courts, (viii) elected territorial officials, (ix) territorial officers appointed by elected nonjudicial territorial officials, (x) enlisted federal military personnel, (xi) state militia officers called into national service by the President, (xii) federal civil servants, (xiii) federal contractors, (xiv) members of a national Article V convention, (xv) members of state ratifying conventions called pursuant to Article V, (xvi) American appointees to treaty created offices (where the treaty is not domesticated), (xvii) multistate compact officials, (xviii) qui tam plaintiffs asserting federal causes of action, (xix) holders of letters of marque and reprisal, (xx) trustees, directors, members, officers, employees, and other agents of federally chartered trusts, corporations, and other private entities with legal personality, and (xxi) individuals affiliated with private entities created under state (or federal, or even foreign) law in which significant equity (or, possibly, debt) is held by the United States government. I do not ask this to satisfy idle curiosity. The commentators above believe they have a coherent (if not correct) intellectual position. But the only way for us to be confident that their position is coherent (or correct) is for them to communicate their position to the rest of us so that we can see how it plays out, not only in regard to the presidency, but in regard to other federal and state positions. And if they cannot do so, is not that telling? 


[END]

Welcome Instapundit readers!

Here is part of the Article: Seth Barrett Tillman, A Response to Professor Victoria F. Nourse’s Reclaiming the Constitutional Text from Originalism: The Case of the Foreign Emoluments Clause (Feb. 18, 2018), https://ssrn.com/abstract=3125806.

Seth Barrett Tillman, How My Next Academic Paper Ends, New Reform Club (Feb. 16, 2018, 11:52 AM), http://reformclub.blogspot.ie/2018/02/how-my-next-academic-paper-ends.html

Saturday, January 13, 2018

Why the left needs a continuous flow of immigrants from "spithole" countries

All is going according to plan:



"They will bring with them the principles of
the governments they leave, imbibed in their early youth;
or, if able to throw them off, it will be in exchange
for an unbounded licentiousness, passing, as is usual,
from one extreme to another. It would be a miracle
were they to stop precisely at the point of temperate
liberty.

These principles, with their language,
they will transmit to their children. In proportion
to their numbers, they will share with us the legislation.
They will infuse into it their spirit, warp and bias
its direction, and render it a heterogeneous, incoherent, distracted mass."
—Thomas Jefferson, "Notes on the State of Virginia" (1785)

Sunday, December 31, 2017

The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered




     In 1792, the Senate directed President Washington’s Secretary of the Treasury, Alexander Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States.”[1] Hamilton took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. The report included appointed or administrative personnel in each of the three branches of the federal government, including the Legislative Branch (e.g., the Secretary of the Senate and Clerk of the House and their staffs) and the clerks of the federal courts.[2] But Hamilton’s carefully-worded response did not include the President, Vice President, Senators, or Representatives.[3] The presumptive meaning of this document is that Hamilton accurately responded to the Senate’s precise request: elected officials do not hold office . . . under the United States, and so they were not listed.
     Contrary explanations do not hold up. Two of the Legal Historians whose brief is before this Court, Gautham Rao and Jed Handelsman Shugerman, have contended that Hamilton’s list was designed to help avoid violations of the Constitution’s Sinecure Clause.[4] It provides, “[n]o 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.”[5] Under this clause, members of Congress cannot be appointed to offices (1) that were created during the term of Congress to which they were elected, or (2) whose “Emoluments” (i.e., salary) were increased during the term of Congress to which they were elected. Rao and Shugerman speculate that Hamilton’s 1793 list identified positions that fell into these categories, so the President could avoid unconstitutional appointments. According to Rao and Shugerman, Hamilton understood that the Senate inquiry had a limited, unstated purpose and as a result, his roll of officers hewed to that purpose, excluding the presidency, even though (in Rao & Shugerman’s view) the presidency was encompassed by the office under the United States language in the Senate order. It is not surprising that the Legal Historians do not advance this argument here, because it makes little sense.
     First, by the time the Senate made its request to Hamilton in 1792, there had already been two sets of congressional elections, and two classes of Senators had been elected. Yet, the Senate order and Hamilton’s 1793 roll of officers makes no attempt to distinguish between positions created during the Senate’s first two-year term and the Senate’s second two-year term. Without that information, Hamilton’s 1793 roll of officers would not have been useful in regard to helping elected officials avoid violating the Sinecure Clause. Second, the Sinecure Clause would prevent a Senator from being appointed to an Article III judgeship that was created during his elected term. Yet the Senate order specifically directed Hamilton to exclude all judges, and Hamilton’s document followed those instructions. The list would have been useless to help avoid violations of the Sinecure Clause with respect to judicial appointments, which were and remain an important class of officers.
     Third, there is no evidence that Congress ever made such a request of Hamilton prior to the start of the Second Congress in 1791 or prior to the start of the Fourth Congress in 1795. To the contrary, Hamilton and the Treasury Department issued dozens of circulars, memoranda, and reports concerning the federal workforce in response to congressional requests.[6] For example, in 1791, the House of Representatives directed the Secretary of the Treasury to prepare an annual statement listing an “accurate statement and account of the receipts and expenditures of all public moneys.”[7] In response to this broad request, Hamilton’s 72-page report included the compensation for all Article III judges, the members of the House and Senate, along with the Vice President and the President.[8] In contrast, where Hamilton was asked to list the “emoluments” of “every person holding any civil office or employment under the United States,” excluding judges, he did not list the compensation for Representatives, Senators, the Vice President, or the President. In one document Hamilton and the Treasury Department included all elected officials, and in the other document, Hamilton did not include any elected officials. What differed was the language in the instructions instructing Hamilton’s efforts. And where congressional guidance sought a list of those holding office . . . under the United States, Hamilton did not include any elected positions.
     There is an entirely different document that lists the salaries of President Washington and Vice President Adams before recording the salaries of the appointed officers included in Hamilton’s original report.[9] In parallel litigation concerning the Foreign Emoluments Clause in the Southern District of New York, the same group of five Legal Historians had cited this second document to contend that the President holds an “office . . . under the United States.”[10] However, Tillman and JEP filed a response, showing that this latter document was in fact a scrivener’s copy drafted long after Hamilton’s death.[11] Subsequently, the Legal Historians issued a formal apology, and withdrew their claim about this second document from their amicus brief.[12]
     The editors of American State Papers, who would publish in 1834 a typeset reproduction of this scrivener’s copy, explained, indirectly at least, why President Washington and Vice President’s Adams’s salaries were added. In 1816, Congress authorized the biennial publication of the Official Register of the United States, also known as the Blue Book,[13] to record the “compensation, pay, and emoluments” of “all officers and agents, civil, military, and naval, in the service of the United States.”[14] The first edition of the Blue Book, published in 1818, lists the salaries of President Monroe and Vice President Tompkins before recording the salaries of appointed officers in all three branches; elected members of Congress are not listed.[15]
     Though Hamilton’s 1793 roll of officers did not include the salaries of President Washington and Vice President Adams, the editors of American State Papers nonetheless identified this document in the index as the “‘Blue Book,’ or list of civil officers of the United States.”[16] That is, the editors viewed Hamilton’s original 1793 document as a progenitor or the best analogue to the Blue Book from the time period in which the Constitution went into force. After all, Hamilton’s 1793 roll of officers listed the “emoluments” of all appointed officers in the executive and legislative branches. (Congress had asked Hamilton to exclude judges.) However, there was one significant difference between the format of the 1818 Blue Book and Hamilton’s 1793 roll: the latter’s omission of the salaries of the President and the Vice President. To conform Hamilton’s roll to the format of the Blue Book, an unknown Senate functionary inserted the emoluments of President Washington and Vice President Adams. Once this addition was made, Hamilton’s roll closely tracked the format of the Blue Book. Even the sequencing was identical: President, Vice President, Department of State, Treasury Department, Department of War, etc. When viewed in the context of the Blue Book, the addition of the President and Vice President makes sense; it was a formatting or editorial decision made in 1834, not an interpretation of who holds “Office . . . under the United States” made in 1834, much less by Hamilton in 1793.
     This latter report, which was drafted by an unknown Senate functionary—likely to conform to the format of the Blue Book—should not be accorded the same weight as the original document signed by Hamilton and transmitted to the Senate as an official Executive Branch communication. At this juncture, the Legal Historians and Plaintiffs’ other amici have no response, whatsoever, to this important official communication from Alexander Hamilton. 


Seth Barrett Tillman, The Blue Book & the Foreign Emoluments Clause Cases Against the President:  Old Questions Answered, New Reform Club (Dec. 31, 2017, 6:10 AM),
https://reformclub.blogspot.com/2017/12/the-blue-book-foreign-emoluments-clause.html


** This post is based on: Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at Part II[D][1], at 20–24, District of Columbia & State of Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 77, https://ssrn.com/abstract=3089868; and Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at Part II[D][1], at 20–25, District of Columbia & State of Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 29, 2017) (Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 76.
[1] 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry) (emphasis added), bit.ly/2rQswt8.
[3] Id. The editors of the Papers of Alexander Hamilton marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The cover letter of The Complete Report, which was drafted in long hand, can be found at bit.ly/2fj6IQ0. The reproduction in the Papers of Alexander Hamilton is typeset. See supra note 2.
[4] Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism: The New York Times published the flimsiest defense of Trump’s apparent emoluments violations yet., Slate (July 17, 2017), perma.cc/K6P4-RC6S.
[5] See U.S. Const. art. I, § 6. cl. 2.
[6] See generally A List of Treasury Reports and Circulars Issued by Alexander Hamilton, 1789–1795 (Paul Leicester Ford ed., Brooklyn 1886), bit.ly/2zpBoqe.
[7] 1 Journal of the House 484 (Washington, Gales & Seaton 1826) (entry for December 30, 1791), bit.ly/2pr0p4A.
[8] See Report on an Account of the Receipts and Expenditures of the United States for the Year 1792 [“The 1792 Report”], in 15 Papers of Alexander Hamilton 474, 498–510 (1969), bit.ly/2BvwJF9.
[9] See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834), bit.ly/2ptHRkm. The Condensed Report, which was drafted in long hand, can be found at bit.ly/2xknN6j. The reproduction in American State Papers is typeset.
[10] Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, N.Y. Times (Sept. 25, 2017), https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=undefined.
[11] See Motion for Leave to File Response to Brief of Amici Curiae by Certain Legal Historians, CREW v. Trump, 17 Civ. 458 (S.D.N.Y. Sept. 19, 2017), [ECF No. 85], bit.ly/2yc175l.
[12] See Letter to Judge George B. Daniels, id. at [ECF No. 96], bit.ly/2gaoHsD. See Jed Shugerman, Our correction and apology to Professor Tillman, Shugerblog (Oct. 3, 2017), perma.cc/R9N9-S472.
[13] John P. Deeben, The Official Register of the United States, 1816-1959, National Archives, perma.cc/RJD6-S232.
[14] See, e.g., A Register of Officers and Agents, Civil, Military, and Naval, in the Service of the United States on the Thirteenth Day of September, 1817, at iii (Washington, E. De Krafft 1818), bit.ly/2BwkFmM.
[15] Id. at 9, 16–17.
[16] 1 American State Papers/Miscellaneous, Index ii (1834), bit.ly/2Da7uIW.

In vino felicitas


Saturday, December 30, 2017

Thomas Jefferson on the nature of religious freedom

Whereas, Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations tend only to beget habits of hypocrisy and meanness, and therefore are a departure from the plan of the holy author of our religion, who being Lord, both of body and mind yet chose not to propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time; that to compel a man to furnish contributions of money for the propagation of opinions, which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the Ministry those temporary rewards, which, proceeding from an approbation of their personal conduct are an additional incitement to earnest and unremitting labours for the instruction of mankind; that our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry, that therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which, in common with his fellow citizens, he has a natural right, that it tends only to corrupt the principles of that very Religion it is meant to encourage, by bribing with a monopoly of worldly honours and emoluments those who will externally profess and conform to it; that though indeed, these are criminal who do not withstand such temptation, yet neither are those innocent who lay the bait in their way; that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own; that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order;a nd finally, that Truth is great, and will prevail if left to herself, that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them: Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.

Tuesday, November 28, 2017

You Do Understand That The 1793 (Complete) Report Was Not Hamilton’s Only Such Report, Right?—A Letter to Mike Stern & Point of Order Blog





As I have written—time, after time, after time—in 1792, the Senate directed President Washington’s Secretary of the Treasury, Alexander Hamilton, to draft a financial statement listing the “salaries, fees, and emoluments” of “every person holding any civil office or employment under the United States (except the Judges).[1] Hamilton and the Treasury Department took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. In his responsive 1793 (Complete) Report, Hamilton included appointed officers in each of the three branches of the federal government, including the Legislative Branch (e.g., the Secretary of the Senate and Clerk of the House). But Hamilton did not include the President, Vice President, Senators, or Representatives. In other words, Hamilton did not include any elected officials in any branch.[2]

Here is what Mike Stern, at Point of Order blog, recently wrote about Hamilton’s 1793 (Complete) Report:

Hamilton might have decided not to include the president and vice president in his response [i.e., the 1793 (Complete) Report] even if he believed that the literal terms of the Senate resolution so required. For one thing, he may have questioned the Senate’s authority to compel him to make inquiry of the president. Congress’s authority to obtain information directly from the president was an unsettled and delicate matter in 1792 (as it remains to some degree today). The traditional protocol, reflected in resolutions of inquiry, was for the House or Senate to “request” information from the president but to “direct” department heads to produce information.[3] For the Senate to order the Secretary of the Treasury to obtain financial information from President Washington and to report any refusal or failure to cooperate on Washington’s part to the Senate would seem, at the very least, to push the bounds of protocol and constitutional propriety. Perhaps more importantly, interpreting the Senate resolution in such a fashion risked putting Hamilton in an untenable position if the president declined to cooperate.[4]

Let’s be clear. Congress was neither seeking records of internal deliberations, nor confidential communications (or advice) between the President and his subordinates. Likewise, Congress was not seeking secret or confidential communications between the American diplomatic corps (including the President) and foreign officials (or domestic Indian tribes).

What was Congress seeking here? The compensation of those holding office . . . under the United States. The President’s and Vice President’s compensation were set by statute in 1789[5]—so there was no need for Hamilton or anyone else to make inquiries. There was no need to ask the President or Vice President anything—there was no need to “compel,”[6] demand, or even request the cooperation of the President or Vice President or anyone else in regard to the President’s and Vice President’s compensation. The matter at issue was one of public record. Full stop. Stern also suggests that Hamilton might have doubted the Senate’s authority to “compel” his compliance with the Senate order. I do not claim to know what Hamiltons private thoughts were—even assuming he gave the matter any thought at all. But I do know precisely how he responded to the Senate order. In his signed cover letter to the Senate, Hamilton stated that his report, i.e., the 1793 (Complete) Report, was “transmit[ted]” “in obedience to the [Senate] order.”[7] That is some good evidence indicating that Hamilton thought he was obliged to obey the Senate order.

Stern continues:

The [1792 Senate] resolution requires the Secretary of the Treasury to interrogate every covered official and to “report the name of every person who shall neglect or refuse to give satisfactory information” regarding his compensation and expenses. It exempts judges, presumably because of separation of powers considerations. Similar considerations, not to mention self-interest, would likely have led the Senate to exclude its own members from the scope of the Secretary’s work. Moreover, interpreting the resolution to apply to members of the House would have resulted in a serious breach of comity between the two houses. Indeed, it is not at all obvious that the Senate has the constitutional authority to interrogate members of the House, either directly or through the Secretary of the Treasury.[8]

There are any number of things wrong with Stern’s narrative and analysis. For example, Stern’s use of “interrogat[ion]” language, much like his prior use of “compel,” is overwrought. Hamilton’s complying with the Senate order did not require the Secretary to “interrogate” anyone. Hamilton had access to any number of public (including Treasury Department[9]) records, and in addition to public records, he could contact, and indeed, he did contact, any number of government officers by (snail) mail for further information. Asking elected and appointed public officials and officers to supply information is not customarily denominated an “interrogation.” Moreover, where the information sought is already public or requested by a senior Executive Branch officer on behalf of a house of Congress, both public officials and officers, elected or appointed, should have some substantial reason justifying noncompliance.

Likewise, Stern’s separation of powers and comity explanations are plainly at odds with well known historical records. In response to the Senate’s 1792 order, Hamilton wrote the Clerk of the House and Secretary of the Senate, seeking information relating to their compensation and that of their subordinates, and that information was included in Hamilton’s 1793 (Complete) Report. To the extent that the extant documentation reveals, separation of powers and intercameral comity were not at issue. Notwithstanding that the request for information originated in the Senate, the Clerk of the House of Representatives did not object to supplying the information sought by the Secretary of the Treasury. That shows that intercameral comity was not at issue. Again, notwithstanding that the request for information was a directive from the Secretary of the Treasury, the Clerk of the House and Secretary of the Senate did not object to supplying the information sought. That shows that separation of powers concerns were not at issue.

Nor is that all. As stated above, Stern’s separation of powers and comity explanations are plainly at odds with other well known historical records. During Hamilton’s tenure at Treasury, Hamilton and the Treasury issued dozens of circulars, memoranda, and reports.[10] One such report was the Report on an Account of the Receipts and Expenditures of the United States for the Year 1792 [“The 1792 Report”].[11] The two reportsThe 1792 Report and the 1793 (Complete) Reportwere issued less than one calendar year apart, and both were issued by: Hamilton and the Treasury Department during Hamiltons tenure as Secretary. The 1792 Report was generated in response to a House inquiry. On December 30, 1791, the House issued the following directive:

That it shall be the duty of the Secretary of the Treasury to lay before the House of Representatives, on the fourth Monday of October in each year, if Congress shall be then in session, or if not then in session, within the first week of the session next following the said fourth Monday of October, an accurate statement and account of the receipts and expenditures of all public moneys . . . .[12]

The 1793 (Complete) Report used the very specific office . . . under the United States”-language, but The 1792 Report used more general language relating to receipts and expenditures of all public moneys. How did Hamilton and the Treasury Department, in The 1792 Report, respond to the 1791 House directive?

1. The 1792 Report included: the President and Vice President.[13] Documentary evidence of Stern’s hypothesis that such a request implicated concerns about the “Senate’s authority to compel [the Secretary of the Treasury] to make inquiry of the [P]resident”[14] is wholly absent, as is any evidence relating to concerns about “the bounds of protocol and constitutional propriety.”[15]

2. The 1792 Report included: the Article III judges and their clerks.[16] Documentary evidence of Stern’s suggestion that an inquiry about the compensation of Article III judges might trip “separation of powers considerations”[17] is wholly absent.

3. The 1792 Report included: appointed House and Senate officers, such as the Clerk of the House and Secretary of the Senate. Likewise, The 1792 Report included the compensation of elected members of the House and Senate. Such compensation was not merely listed in gross for each house, but, in fact, The 1792 Report listed the compensation of each member individually based on his individual per diem.[18] Both houses provided (at some point) the necessary information for Hamilton and the Treasury Department to compile this report. According to Stern, “separation of powers considerations … [and] self-interest” would likely have led the house making the original inquiry “to exclude its own members from the scope of the Secretary’s”[19] inquiry. But here, the House made the inquiry and The 1792 Report included financial information relating to both elected and appointed House members and officers.[20]

Again, according to Stern, if one house made an inquiry, the other house was not likely to respond because such an inquiry “would have resulted in a serious breach of comity between the two houses.”[21] But that is precisely what happened here. Here, the House made the inquiry and The 1792 Report included financial information relating to both elected and appointed Senate members and officers.[22]

Now if Stern wants to argue that Hamilton and his Treasury Department staff forgot to include the President and Vice President in Hamilton’s 1793 (Complete) Report, he can, but it remains a bold and unsupported conjecture. Where is his evidence? Stern also insinuates that documents suggesting that “the Treasury Department did consider the president and vice president to hold ‘civil office or employment under the United States’ within the meaning of the 1792 Senate resolution . . . may have been lost or destroyed.”[23] Lost or destroyed documents might support or contradict Stern’s favored position—there is simply no fair way to assess the possibilities and probabilities in regard to documents that we cannot examine. Indeed, there is no good reason to think that any such lost or destroyed documents had anything at all to say in regard to the issue at hand.

The plain fact remains that Hamilton and the Treasury Department (during Hamilton’s tenure) remembered to include (and did include) the President and Vice President in The 1792 Report albeit The 1792 Report used operative language very different from the 1793 (Complete) Report’s “office . . . under the United States”-language. Despite Stern’s purported concerns relating to “interrogations,” “separation of powers,” intercameral “comity,” etc., The 1792 Report included elected officials, e.g., the President. The plain fact is that Hamilton’s 1793 (Complete) Report is systematically and noticeably different from The 1792 Reportthat difference is telling.

I regret that Mike Stern refuses to see what a good many others who have taken the time to review these documents have come to understand.[24] But more than I regret that, I am floored that, at this late date, he would write: “The full Hamilton Report is only available at the National Archives so I am basing my comments on excerpts that are available online.”[25] Stern’s comment is both wrong in principle and wrong in fact. As to principle, we are now no longer writing—as academic scribblers—about abstract ideas; rather, the Nation is now in the midst of serious and concrete litigation involving the President and the future shape of our democracy. If Mike Stern wants to opine on these documents—he should trouble himself to examine a complete copy before responding. As to fact, these documents are freely available, online and elsewhere. He could go to the archives. He could write the archivists. He could write the curators at the Alexander Hamilton Papers Project. He could write the five authors of the Legal Historians brief. He could visit the website created by Professors Shugerman and Rao. He could have written me seeking a copy of one of my sources—something he has done before. And the fact of the matter is, these documents are all already online, and they have been online for some time. I ought to know: Professor Blackman and I put them there.[26] If Stern had examined the complete original document, i.e., the 1793 (Complete) Report, he would have seen that many (but not all) of the annexes reported their information both annually and quarterly, and he may also have discovered why that was the case. This is something Mike Stern could have done before telling the public that Hamilton’s response substantially departed from the Senate order.

There was a complete and exhaustive effort by 5 legal historians (in conjunction with several other academics and litigators) to revisit my 2008 and post-2008 research in regard to the 1793 (Complete) Report.[27] They revisited my findings all the way down to the signatures and purported signatures on the archived documents and typeset reproductions. And they ultimately agreed with my primary conclusions—at least in regard to authenticity. Now Stern wants to convince the world that the one-and-only original Hamilton-signed document does not mean what it plainly says. Hamilton was asked to supply a list of every person holding “office . . . under the United States” and their emoluments. Hamilton did not include the President in his list. I know what that means, so do you, and I suspect so does Mike Stern, and if he does not know now, I am hopeful he will come to the more sensible conclusion in the not too distant future. To be clear, I did not argue (in my brief) that the 1793 (Complete) Report standing along and without more is conclusive evidence or proof** as to the scope of the Constitution’s “office . . . under the United States”-language. But it is certainly some probative evidence, particularly in conjunction with the public practice of Presidents during the Federalist Era and Early Republic in regard to their receiving gifts from foreign governments and their officials. The 1793 (Complete) Report is some evidence as to how “office . . . under the United States” was used and understood among the reasonably well educated bench, bar, and public in late eighteenth century America. Maybe there are arguments which undermine my position, and maybe there are not. But the position I put forward cannot be undermined by Sterns hypothesizing that no longer extant documents would explain away the difficulty which peculiarly confronts Stern’s position (as opposed to my position). Just imagine if the tables were reversed. Imagine if the Legal Historians managed to establish (against all reason) that the Condensed Report (i.e., the circa 1830 copy published in American State Papers which included the President and VP) was an original and bona fide Hamilton-signed document? Would they or Stern or anyone in the world allow me to argue:



My (Tillman’s) theory remains correct, Hamilton included the President by mistake or for specific reasons having nothing to do with the scope of the Senate resolutions operative ‘office . . . under the United States’-language. And my position would be borne out by documents now long lost and destroyed, but which I cannot even hope to produce.


Would I be allowed to advance that argument? Would Stern or you accept it if I did? Of course not—of course not. No sensible person would advance such an argument. No one can predicate arguments based on documents which he cannot produce unless he has some direct evidence in regard to those documents and their specific contents. Stern does not even begin to carry that extraordinarily heavy burden.

If you believe (as I do) that Stern’s recent effort failed, as did the prior effort, then that is some good reason to accept the alternative position: viz. the President does not hold an office . . . under the United States. As Chief Justice McKean explained “It is in argument, in law, and in logic, as it is in nature (destructio unius, est generatio alterius) that the destruction of an objection, begets a proof.”[28]

[As for Stern’s remaining objections, I’ll address them on another occasion or occasions, as I have time. And some are addressed in the footnotes below.]

Seth

Seth Barrett Tillman, You Do Understand That The 1793 (Complete) Report Was Not Hamilton’s Only Such Report, Right?Letter to Mike Stern & Point of Order Blog, New Reform Club (Nov. 27, 2017, 5:35 AM), https://reformclub.blogspot.com/2017/11/you-do-understand-that-1793-complete.html


[1] 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry) (emphases added) (commas omitted).
[2] The transmittal letter of the 1793 (Complete) Report appears at Exhibit K, http://bit.ly/2xkY1Pc. The cover letter of the 1793 (Complete) Report appears at Exhibit L, http://bit.ly/2fj6IQ0. Annexes I, II, and IV–XVIII of the 1793 (Complete) Report appear at Exhibit M, http://bit.ly/2eV95bn. Annex III of the 1793 (Complete) Report appears at Exhibit N, http://bit.ly/2h1kdre. Lastly, Annex XIX of the 1793 (Complete) Report appears at Exhibit O, http://bit.ly/2fiX00f. The exhibits, supra, relate to my amicus brief and filings in: Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians at 3 n.6, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.) (filed by Professor Josh Blackman, Robert W. Ray, Esq., and Carrie Severino, Esq.), Doc. No. 85-1, 2017 WL 4685886, 2017 U.S. Dist. Ct. Briefs LEXIS 408, https://ssrn.com/abstract=3002345, https://drive.google.com/file/d/0B6pbwibK31LaN1k4aWw1WEJ0REk/view. In short, there are five internet documents, including two available at no cost, from which Mike Stern or anyone else can find links to the 1793 (Complete) Report or the report itself.
[3] Is not Stern’s comment here a fancy way of saying what I have been saying continuously since 2008: i.e., that Congress has always distinguished between elected officials and appointed officers?
[4] Mike Stern, Why Tillman’s Experts Show He is Wrong, Point of Order: A Discussion of Congressional Legal Issues (Oct. 22, 2017, 12:47 PM), http://www.pointoforder.com/2017/10/22/why-tillmans-experts-show-he-is-wrong/ (emphases added) (footnote added).
[5] See Act of Sept. 24, 1789, ch. 19, § 1, 1 Stat. 72 (setting the President’s and Vice President’s compensation at $25,000 and $5,000 per year respectively, in “full compensation for their respective services,” but not providing for expenses (emphasis added)); infra note 11 (discussing “expenses”). I see no indication in this statute that the President or Vice President were entitled to any discretionary expenses, even in the normal course of their duties. See also Act of Sept. 22, 1789, ch. 17, 1 Stat. 70–71 (setting the compensation of members of Congress and congressional officers); cf. Act of Sept. 11, 1789, ch. 13, 1 Stat. 67–68 (setting salaries for some senior appointed officers and their subordinates). Addendum of December 1, 2017: It is conceivable that some other statute (impliedly or expressly) granted the President exprenses or that the President was paid expenses under the authority of some sort of tradition or common law in connection with government service. Still any such reimbursements would ultimately be paid to the President by the Treasury Department (as a warrant or draft against the federal treasury). Thus even for presidential expenses, assuming there were any, Hamilton and his Treasury Deparment staff would have had all the relevant records, and there was no need to interrogatethe President in regard to any such information or records.
[7] The cover letter of the 1793 (Complete) Report appears at Exhibit L, http://bit.ly/2fj6IQ0.
[8] Stern, supra note 4 (emphasis added).
[9] Act of Sept. 22, 1789, ch. 17, § 6, 1 Stat. 70, 71 (setting the compensation of members of Congress and congressional officers, and explaining that all such payments shall be “certified” by the presiding officer, and “shall be passed as public accounts, and paid out of the public treasury”).
[10] See generally A List of Treasury Reports and Circulars Issued by Alexander Hamilton, 1789–1795 (Paul Leicester Ford ed., Brooklyn 1886), https://archive.org/details/listoftreasuryre00fordrich. One could also look to American State Papers (subject to the well known limitations associated with that source), particularly volume 1 of the financial series, and also volume 1 of the miscellaneous series), https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=009/llsp009.db&recNum=5. Stern has other conjectures seeking to explain why Hamilton left the President off his 1793 (Complete) Report. See Stern, supra note 4 ([Hamilton] may have determined that the use of the word civil [in the Senate order] created an ambiguity because the president serves as commander in chief”: without any attempt by Stern to explain why the Vice President was not part of Hamiltons list). It is long past time for Stern (and others) to drop this commander-in-chief argument. It is plainly falsified by any number of Hamilton-era Treasury Department documents placing the President in the civil list, and not in the War Department or military list. This argument ought to be a complete non-starter. How many other such arguments will Stern and others put forward to convince themselves and others that the original Hamilton-signed document is not probative?
[11] Report on an Account of the Receipts and Expenditures of the United States for the Year 1792 [“The 1792 Report”], in 15 Papers of Alexander Hamilton 474–545, http://rotunda.upress.virginia.edu/founders/default.xqy?keys=ARHN-print-01-15-02-0395 (dated December 18, 1793, and communicated December 19, 1793, and published by order of the House of Representatives, printed by John Fenno, No. 3, South Fourth Street, Philadelphia, 1794. Another copy of the cover letter for this report may be found in RG 233, Reports of the Secretary of the Treasury, 1784–1795, vol. IV, National Archives); see supra note 5 (noting that the President’s compensation at $25,000 per year was described as “full compensation” absent any reference to discretionary expenses, even in the normal course of his duties). I add that The 1792 Report expressly identifies a variety of “expenses” (apart from regular “compensation”), e.g., for the Judicial Branch, The 1792 Report, supra, at 499–504; for senior (appointed) Executive Branch and other (appointed) Executive Branch officers, id. at 510–12 (listing the Treasury Department’s expenses), id. at 512 (listing State Department’s expenses); for both the House and Senate as separate collective entities, id. at 505–10; and also for particular purposes, including carrying out the census, id. at 543. But no expenses are expressly identified for any specific elected officials. See generally supra note 5 (discussing expenses).
[12] 1 Journal of the House 484 (emphases added).
[13] See The 1792 Report, supra note 11, at 498 (including the President’s and Vice President’s compensation).
[16] See The 1792 Report, supra note 11, at 499–504 (including compensation for the federal judiciary and their clerks).
[18] See The 1792 Report, supra note 11, at 505–10 (including House and Senate compensation—in gross, and compensation of particular members, and compensation of congressional administration officers).
[20] See The 1792 Report, supra note 18.
[22] See The 1792 Report, supra note 18.
[24] Compare Brief of Amicus Curiae by Certain Legal Historians on Behalf of Plaintiffs at 22 n.81–82, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Aug. 11, 2017) (Daniels, J.) (filed by Professor Jack N. Rakove et al.), Doc. No. 70-1, 2017 WL 5483629, 2017 U.S. Dist. Ct. Motions LEXIS 406 (citing Tillman’s amicus brief and objecting to its claims relating to the 1793 (Complete) Report), http://guptawessler.com/wp-content/uploads/2017/08/LegalHistorians.pdf, with John Mikhail, Our correction and apology to Professor Tillman, Balkinization (Oct. 3, 2017, 8:30 PM) (retracting claims in the Legal Historians brief relating to the 1793 (Complete) Report, and signed by Professor Jack Rakove et al.), https://balkin.blogspot.ie/2017/10/our-correction-and-apology-to-professor.html; compare also Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism, Slate (July 17, 2017, 5:42 PM) (objecting to Blackman and Tillman’s claims relating to the 1793 (Complete) Report), http://tinyurl.com/y7qaabr4, with no retraction. See generally Brian Galle (@BDGesq) on Twitter, A nice analysis that shows, among other things, the importance of the doc SBT decided the court didn’t need to see (Oct. 22, 2017, 6:08 PM), https://twitter.com/BDGesq/status/922268426613256192 (citing Mike Sterns Point of Order blog post); Mike Palazzo (@joe_palazzolo) on Twitter, Interesting (and thorough) response to contention that Foreign Emoluments Clause doesn’t apply to president or VP (Oct. 23, 2017, 7:22 AM), twitter.com/joe_palazzolo/status/922468360792748032 (same)
[25] Stern, supra note 4 (emphases added).
[26] See supra note 2 (reporting five internet links, including two available at no cost, from which one can find links to the 1793 (Complete) Report or the report itself). These materials were posted online more than 2 months ago.
[27] See supra note 24. See, e.g., Brianne J. Gorod, What Alexander Hamilton Really Said, Take Care (June 7, 2017), perma.cc/YCY8-XQC9; Brianne J. Gorod, A Little More on Alexander Hamilton and the Foreign Emoluments Clause, Take Care (Aug. 1, 2017), perma.cc/U4A6-EMVG; Joshua Matz, Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle, Take Care (July 12, 2017), perma.cc/66Z7-VY76; see also Norm Eisen (@normeisen) on Twitter, devastating @BrianneGorod rebuttal of “evidence” for fringe claim that emoluments clause doesnt apply to POTUS (July 6, 2017, 7:28 AM), https://twitter.com/NormEisen/status/882969451557249025; Laurence Tribe (@tribelaw) on Twitter, Read this devastating reply to the weird claim that Hamilton thought Presidents could accept Foreign Emoluments (July 6, 2017, 8:00 AM), https://twitter.com/tribelaw/status/882977561986420736; Laurence Tribe (@tribelaw) on Twitter, From the “This Speaks For Itself” Department: Foreign Emoluments, Alexander Hamilton & A Twitter Kerfuffle (July 13, 2017, 6:25 PM), https://twitter.com/tribelaw/status/885671589542588416; Laurence Tribe (@tribelaw) on Twitter, A National Archives visit obliterates @SethBTillman’s thesis that DJT isn’t covered by the Foreign Emoluments Clause (Aug. 1, 2017, 6:48 AM) https://twitter.com/tribelaw/status/892381453312503808; Laurence Tribe (@tribelaw) on Twitter, Another devastating critique of Tillmania by @jedshug (Sept. 1, 2017, 7:20 PM), https://twitter.com/tribelaw/status/903804726717841409; cf. Mark Joseph Stern (@mjs_dc) on Twitter, !! @BrianneGorod went to the National Archives to debunk the claim that the Emoluments Clause doesn’t apply to Trump (Aug. 1, 2017, 11:36 am), https://twitter.com/mjs_DC/status/892454064532934658 (apparently deleted by author). See generally Glenda Gilmore (@GilmoreGlenda) on Twitter, Trump lawyers use 1 Hamilton letter for argument; bury 2nd Hamilton letter to the contrary written same day. Historians know better (Aug. 31, 2017, 4:53 AM), https://twitter.com/GilmoreGlenda/status/903224236843704320. For Professor Gilmores (accomplished) biography see: https://history.yale.edu/people/glenda-gilmore. She has taught post-Civil War African-American history. Perhaps some day she might appreciate the irony.
[28] Boyd’s Lessee v. Cowan, 4 U.S. 138, 141 (Penn. 1794) (McKean, C.J.), https://supreme.justia.com/cases/federal/us/4/138/case.html. McKean, a proponent of the then proposed federal constitution, made the same argument at the Pennsylvania ratification convention. See 2 Documentary History of the Ratification of the Constitution: Pennsylvania 542 (McKean, on December 10, 1787, stating: “It holds in argument as well as nature, that destructio unius est generatio alterius—the refutation of an argument begets a proof.”), also available at 2 Elliot’s Debates 541; see also 1 Annals of Cong. 560 (Congressman Fisher Ames, on June 18, 1789, stating: “I believe nearly as good conclusions may be drawn from the refutations of an argument as from any other proof. For it is well said, that destructio unius est generatio alterius.”); cf. Flora Lewis, Europe: The Road to Unity (1992) (“Pluralism justifies itself by the falseness of the beliefs that oppose it.” (quoting Raymond Aron)). 


** Compare Blackman / Tillman Brief at 19 (Like Washington’s acceptance of [Ambassador] Ternant’s gift of the framed portrait of Louis XVI, the Hamilton document is another probative Executive Branch construction of the Constitution’s office under the United States-language, which was established during Washington’s first term (and so contemporaneous with the ratification of the Constitution).),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2985843, with Stern, supra note 4




Before getting into the nuts and bolts of the Hamilton Report, I want to stress that Tillman’s reliance on the report depends on four assumptions about or inferences from the report: (1) the omission of the president and vice president from the report was a deliberate decision, rather than an oversight or error; (2) this decision was made or approved by Hamilton personally; (3) the decision was made for one specific reason, namely that the phrase ‘office or employment under the United States’ excluded the president and vice president; and (4) the interpretation of this phrase was based on the unambiguous meaning of the words, rather than the context of their use or an extra-textual source of information. None of these can be definitively proved (or disproved), but Tillman evidently believes they can be adequately established for his purposes.
 


Yes, Sterns right: I believe Hamilton approved the document and its contentsthats why he signed the transmittal letter, thats why he signed the cover letter, and thats why he signed several annexes. Thats the customary understanding of signing a document: it means you approve it. That Stern wants to contest the obvious or presumptive understanding of public acts by public officers acting in a public capacity is telling. And that Stern thinks the omission of the President of the United States might be an oversight by Hamilton, the Presidents protégé ... and that he thinks it reasonable to shift on to me the burden of disproving his oversight hypothesis, rather than on him to put forward evidence that Hamilton and his department forgot to include the presidency (although remembering to include it in another contemporaneous departmental document) ... all that is something Mike Stern and I will have to agree to disagree on.