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Wednesday, December 07, 2016

Tillman's Response to a Liberal Journalist's Inquiries

A liberal journalist recently wrote an article asserting that the Foreign Emoluments Clause applies to the presidency. I wrote that journalist an e-mail explaining that this issue has not been settled by the courts and, in fact, there is an ongoing academic debate on the issue. The journalist responded with a series of fair, thoughtful, and pointed questions regarding that debate. I attempted to answer those queries. I ended my response as follows:

Tillman's response: 

I don’t think you should miss the forest for the trees. You might agree with my arguments and evidence [in regard to the scope of the Foreign Emoluments Clause's “office” language] or you might not. The larger point is whether it makes sense for a journalist or public commentator to report or to assert that a matter, such as the scope of the Foreign Emoluments Clause’s “office” language, is “clear” or “plain” or “obvious” when there is a current, live debate as to the clause's scope,[1] where that debate is a matter of long standing,[2] and where the Supreme Court and other federal courts have not settled the meaning of the disputed language. It is true that the Department of Justice's Office of Legal Counsel has taken a position contrary to my own. But the authors of the OLC memorandum were not aware of the Washington-era precedents and other evidence. More recently, the Congressional Research Service, which is now aware of the Washington-era precedents, has changed it position and come close to my position. 

Again, my point here is not to convince you that I am right (as I think I am), but only to show you that my position is of longstanding (back to 2008), put forward in good faith in good journals, reasoned, and sourced. If there is a debate here, your readers need to know that. Otherwise, they’ll be trapped in a bubble, and they will not understand the intellectual world around them. And that, as I hope you will agree, is the worst possible result.

And in a follow up response, I wrote: 

When you wrote your original might have relied on public sources, but you might also have contacted one or more academics. If those academics did not flag for you that there was a substantial constitutional debate here, you might want to ask yourself if you were treated fairly by them or if they were themselves poorly informed about an area where they mistakenly thought they had expertise. 

That's an uncomfortable question. It is not intended to be ad hominem. But when an academic does not recognize his or her own limits, they are not really useful to themselves or to anyone else.


For good examples of the debate, see ...

Seth Barrett Tillman, Room for Debate, Constitutional Restrictions on Foreign Gifts Don’t Apply to Presidents, The NY Times, Nov. 18, 2016, 10:41 AM,; and, 

Zephyr Teachout, Trump’s Foreign Business Ties May Violate the Constitution, The NY Times, Nov. 17, 2016, 5:06 PM,

See also ... 

Zephyr Teachout & Seth Barrett Tillman, Common Interpretation—The Foreign Emoluments Clause: Article I, Section 9, Clause 8, in The Interactive Constitution (National Constitution Center 2016),; and, 

Zephyr Teachout, Matters of Debate—The Foreign Emoluments Clause, in The Interactive Constitution (National Constitution Center 2016),; and, 

Seth Barrett Tillman, Matters of Debate—The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016),


Twitter: ( @SethBTillman ) 

My prior post: Seth Barrett Tillman, Congressional Research Service Issues Revised Guidance on the Foreign Emoluments Clause, The New Reform Club (Dec. 1, 2016, 1:09 AM). [here

[1] I am not alone in suggesting the limited reach and effect of the Foreign Emoluments Clause. Professors Blackman, Grewal, and Baude have adopted my position or one very close to mine.
[2] See, e.g., David A. McKnight, The Electoral System of the United States 346 (Philadelphia, J.B. Lippincott & Co. 1878) (“It is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’” (italics added)); Oliver P. Field, The Vice-Presidency of the United States, 56 Am. L. Rev. 365, 382 (1922) (“Whether the president and vice-president are officers of the United States is a subject on which conflicting opinions are held. It is not possible to deal here at length with . . . that question . . . .” (footnote omitted)).


Anonymous said...

Nicely done.

In particular, your observation on experts was very nicely stated. I intend to adoopt and use it as needed.

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