Our problems remain epistemological.

Tuesday, July 11, 2017

A Second Response To Jane Chong

Chong: “At the heart of the emoluments controversy is President Trump’s refusal to liquidate his business holdings. . . . And just as critically, are future presidents entitled to pull a Trump—or does the Constitution dictate that they, like Jimmy Carter, must sell their family peanut farms as a condition of taking office?” (emphasis added). Chong: “[Carter] gave the farm up, apparently without serious protest.”

NY Times: “When Jimmy Carter became president, he put his relatively simple businesses—a peanut farm and warehouse—into a trust . . . .” (emphasis added)

Chong: “No Article III court has ever rendered an opinion on how either Emoluments Clause should be interpreted . . . .” (emphasis added)

Article III Courts: U.S. ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006) (opining on the Foreign Emoluments Clause); Griffin v. U.S., 935 F. Supp. 1, 6 (D.D.C. 1995) (opining on the Domestic Emoluments Clause); see also Ward v. U.S., 1 Cl. Ct. 46 (1982) (opining on the Foreign Emoluments Clause).

Chong: “[T]he [Office of Legal Counsel] opinions also suggest that presidents may in limited cases accept certain fixed benefits—as I will explain, these might be pensions from the U.S. state that used to employ them or money damages from a foreign country against which, in a past life, they successfully won a judgment. The key is that those benefits cannot be subject to foreign or domestic government manipulation or adjustment in connection with the presidential office.” (emphasis added)

Article III Court: Griffin v. U.S., 935 F. Supp. 1, 6 (D.D.C. 1995) (“It is clear that history, custom and usage support the theory that proceeds derived from the sale of Mr. Nixon’s presidential papers do not constitute an emolument. As the Court of Appeals noted, Presidents ‘have been able to use real leverage in negotiating with respect to the disposition of presidential papers [created while in office using government property] to extract from the United States “fancy sums” in the form of lucrative library deals, while maintaining essential control over the materials.’ 298 U.S. App. D.C. at 259, 978 F.2d at 1279. Indeed, Presidents have used their ‘leverage’ to extract ‘lucrative library deals’ while they were still in office. Similarly, Congress has authorized the purchase of presidential materials, and has authorized purchase by the Library of Congress.” (emphasis added)). The key word here is “deal,” which indicates that consideration is negotiated, and not fixed.

Chong: “For example, so far as we know, Jimmy Carter did not demand an OLC opinion on whether he could keep his peanut farm; certainly he did not deploy the Justice Department to fight in court for it.” (emphasis added)

Tillman: CREW made a tactical choice to sue Trump in an “official capacity” suit. If the DOJ was “deployed,” it was because of Plaintiffs, not Trump. See, e.g., Bob BauerThe Emoluments Lawsuit: The United States’ Position and the Defense of President Trump, More Soft Money Hard Law (May 4, 2017), http://tinyurl.com/yc7nut3n


Seth Barrett Tillman, A Second Response To Jane Chong, New Reform Club (July 11, 2017, 3:59 PM), http://tinyurl.com/y8wspn56 


Tom Van Dyke said...

FTR, Carter's peanut business was valued at $750K in 1975. He sold it in 1981 for an estimated $1.5 million. Relatively, well...peanuts.

Hard to see where a peanut business is much more than a turnkey operation, unlike a billion-dollar hospitality business, which could easily crater with indifferent management.

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