Have I Got A Sweet Deal For You ...

Are you a law student in desperate search of an interesting topic for a note? … Or, are you a fundamentally burned out and deeply disappointed legal academic tired of writing papers lacking relevance and resonance—papers which no one reads—papers which are never cited and are soon forgotten? … Because if so, have I got a sweet deal for you. You can have this idea—with no money down, and at no cost to you. But you will want to post your work-product on SSRN or otherwise publish prior to May 26, 2017.

In regard to Citizens for Responsibility and Ethics in Washington v. President Donald J. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017) (Abrams, J.), 2017 WL 277603, I have written:

In regard to the Presidential 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 Presidential 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 Presidential Emoluments Clause applies to such business transactions with commercial entities affiliated with the President.

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. 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 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. Finally, 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.[1]

Feel free to agree; feel free to disagree. Feel free to contact me for advice. But do get cracking because the clock is ticking … and if you do not act now, someone else is liable to make use of that golden ticket.

PS: Don’t forget to address local government too! Plaintiff writes: “Just as the Foreign Emoluments Clause bars payments not only from foreign states, but also their subdivisions and instrumentalities, the Domestic Emoluments Clause bars payments not only from the federal government and state governments, but also their respective instrumentalities and subdivisions. The Supreme Court has long viewed local governments as ‘mere[]. . . departments’ of the state. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 362 (2009).” You cannot make this stuff up.

Seth 

Seth Barrett Tillman, Have I Got A Sweet Deal For You …, The New Reform Club (Apr. 28, 2017, 8:07 AM), http://tinyurl.com/lw5ek5u  

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[1] Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y (forthcoming), https://ssrn.com/abstract=2957162. See generally, e.g., See generally, e.g., David B. Rivkin Jr. & Lee A. Casey, Opinion Editorial, Trump doesn’t need a blind trust, The Washington Post, Nov. 23, 2016, 12:09 AM EST, at A17 (available on Nexis); David B. Rivkin Jr. & Lee A. Casey, Opinion Editorial, It’s unrealistic and unfair to make Trump use a blind trust, The Washington Post (Nov. 22, 2017, 6:37 PM EST), https://tinyurl.com/ljrudrm. To put it another way, American law has a rich tradition recognizing the independent legal personality of corporations and other business entities.