Our problems remain epistemological.

Monday, July 10, 2017

A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?

Seth Barrett Tillman**

In a recent and well received Lawfare post, Jane Chong wrote:

A threshold issue before turning to the OLC literature is the confusion created by cherry-picking historical materials without consideration of their factual context. For example, in its motion to dismiss, the Justice Department followed the lead of some scholars in pulling some Supreme Court language that suggests the term “emoluments” applies only to salary and other duty-related benefits. Most notably, in Hoyt v. United States, 51 U.S. 109 (1850), the Court defines emoluments as “every species of compensation or pecuniary profit derived for a discharge of the duties of office” (emphasis added).

But in Hoyt [v. United States], the Supreme Court was specifically asked to decide what constitutes an “emolument of office” per a statute governing Treasury Department collectors in their official capacity; the case did not require the Court to consider or rule on the existence of emoluments of other kinds.[1]

Chong’s language here is a little difficult to follow. In Hoyt, Plaintiff (the United States, i.e., the Treasury) brought suit in the Circuit Court for the Southern District of New York[2] against the Defendant (the former collector of the port of New York, i.e., Hoyt), to recover a balance claimed in settlement of his accounts. The United States and Collector disputed the scope of Hoyt’s fees, commissions, expenses, offsets, etc.

The “emolument of office” language to which Chong refers appears in two jury instructions submitted by the Plaintiff to the trial court. See Instructions VI[4] and VI[6][2]. Hoyt, 51 U.S. at 119. These instructions were part of a set of 6 instructions submitted by the Plaintiff, along with 18 proposed instructions submitted by the Defendant. What did the trial court do? The trial court rejected Defendant’s proposed instructions, and charged the jury under Plaintiff’s proposed instructions I through V. Id. at 119 & 121. The trial court never used Instructions VI[4] and VI[6][2]: which use the language cited by Chong. The Plaintiff prevailed at trial, and the Defendant appealed. On appeal to the Supreme Court, the Defendant argued that the trial court erred: by rejecting Defendant’s proposed jury instructions and also erred by charging the jury with Plaintiff’s instructions I through V. Id. at 126. The Plaintiff defended the jury instructions as given. Id. at 128–29. What was the upshot? Although Defendant sought a jury instruction using “emolument of office” language, that is, Instruction VI, the trial court rejected that instruction, and on appeal to the Supreme Court, neither party argued that the failure to use Instruction VI was error. So when Chong argues that the Hoyt Court was “specifically asked to decide what constitutes an ‘emolument of office,’ she was wrong. No one asked.

Once this error is noticed, the rest of Chong’s analysis falls apart. Chong can point to other language in Hoyt using “emolument of office.” It is there, and she takes it to mean that “emolument” can be used in a context unrelated to “office” and other employment-like relationships. But she offers nothing akin to proof for that bold claim. It is conceivable that the Hoyt Court added “of office” language to “emolument” because it believed that there were “emoluments” which were unrelated to office, but it is also possible that the Hoyt Court thought all “emoluments” were tied to office-and-employment-type relationships. Without her initial misreading of Hoyt or any other substantial reason to believe the former, the rest of her analysis makes no sense.

It is not as if the meaning of “emoluments” has not come up before. Chong only turns to OLC memoranda as guidance because she lacks anything akin to a judicial decision from the U.S., any state or territory, and any foreign court in the common law world—any decision asserting that you can have an emolument unrelated to discharging the duties of office (or an employment-type relationship). That is telling.[3] And it is not as if commentators have not spoken to this question: the meaning of “emoluments.” They have done that long before Trump. In 1850, the Hoyt Court tied “emoluments” to employment-type relationships, and it did that when interpreting a 1799 statute (as subsequently amended).[4] A 1799 statute’s use of “emoluments” is not obviously so different from how the same word was used in the Constitution in 1789. More recently, Professor Kerridge explained: “[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment. All emoluments must be from employments,”[5] and “All emoluments are from employments, or from the equivalent of employments, that is the essence of emoluments.”[6]


Seth Barrett Tillman, A Response To Jane Chong’s Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, New Reform Club (July 10, 2017, 6:29 PM), http://tinyurl.com/y9jb6ve5

** Seth Barrett Tillman is a member of the faculty in the Maynooth University Department of Law, Ireland. Tillman blogs at New Reform Club and tweets at @sethbtillman. He filed an amicus in the ongoing Foreign Emoluments Clause-related litigation in New York. See Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America (“CREW v. Trump”), Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.) (filed by Professor Josh Blackman & Robert W. Ray, Esq.), Doc. No. 37, 2017 WL 2692500, https://ssrn.com/abstract=2985843.
[1] Jane Chong, Reading the Office of Legal Counsel on Emoluments: Do Super-Rich Presidents Get a Pass?, Lawfare (July 1, 2017, 3:00 PM), http://tinyurl.com/yaw6wyex (bold added).
[2] The Circuit Court acted as a trial court. Coincidentally, this is the same federal district in which CREW v. Trump is being litigated.
[3] See, e.g., Re Legislative Council Election, 22nd Sept. 1988, [1989] 2 H.K.L.R. 194, 217, bit.ly/2syBpZX (explaining that “emoluments of office [are that which are] received by a person who is an employee from his employer and as a payment arising out of or in connection with duties performed in the course of that employment” (emphasis added)).
[4] If one were to examine statutes contemporaneous with 1789, it becomes fairly clear that emoluments are one thing and an officeholder’s private commercial business transactions are an entirely different thing. Compare An Act for Establishing Certain Regulations for the Better Management of the Affairs of the East India Company, 13 Geo. III c. 63, § 21 (1773) (setting the Governor-General’s salary), with id. § 22 (denying him any other “Emoluments”), with id. § 23 (forbidding the Governor-General from being “concerned in any Transaction by way of Traffick”). See generally An Act to establish the Treasury Department, ch. 12, § 8, 1 Stat. 65, 67 (1789).
[5] Roger Kerridge, Emoluments “from” an Office or Employment, 9 British Tax Review 315, 318 (1990).
[6] Roger Kerridge, The Taxation of Emoluments from Offices and Employments, 108(3) Law Quarterly Review 433, 455 (July 1992) (emphasis added). 


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