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

Sunday, April 29, 2018

Jonathan Hennessey on the Foreign Emoluments Clause: A Response

Jonathan Hennessey makes educational videos and writes educational comic books.[1] There is nothing wrong with that; albeit, there is something wrong with presenting one’s intellectual opponents as comic book villains. You can watch Hennessey’s video on the Foreign Emoluments Clause, where my scholarship is discussed in considerable depth. You can decide for yourself if the tone is right, and if it is fair and balanced.[2] Some legal historians like his work.[3] It certainly has some mistakes. For example, in discussing the failed Titles of Nobility Amendment, which was passed by Congress in 1810 and submitted to the states that same year, Hennessey reports that the proposed constitutional amendment “was ratified by every single state but one.”[4] That is simply wrong—and quite obviously so. Of course, we all do make mistakes. Today, I do not want to focus on Hennessey’s tone and mistakes. Rather, Hennessey does something I want to praise.

The country is now up to its ears in Foreign Emoluments Clause litigation. See Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses CasesNew Reform Club (Feb. 28, 2018, 8:59 AM), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.htmlLitigation has been going on for more than a year. There are three such cases in three different federal courts—one of the three cases is now on appeal. Dozens of briefs have been filed. Yet plaintiffs in all three actions (along with supporting amici—including dozens of academics in law and other fields) have failed to put forward any theory explaining the scope of the Foreign Emoluments Clause’s office…under the United States language. Plaintiffs’ position—such as it is—is that whatever the clause’s operative office-language means, that language includes (or ought to include) the President. Their position is entirely a litigation-driven tactical argument. It is not a fully fleshed-out intellectual position.

In contrast to the plaintiffs in the Foreign Emoluments Clause cases, Hennessey has real guts. In other words, he has a fully fleshed-out legal theory. And his position is different from my own.

My position is that Office…under the United States, as used in the Constitution and in other documents from the Federalist Era, refers to statutory or appointed offices in any of the three branches of the federal government. I support my position by turning to a variety of evidence: the pre-Independence legal meaning of Office…under the Crown, the Constitution’s drafting history, early Executive Branch practice in the Federalist era in regard to diplomatic gifts received by presidents from foreign governments, congressional drafting practice of the First Congress, nineteenth century scholarship, including, e.g., Justice Story and David McKnight, etc. 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.” (emphases added)), 
https://archive.org/stream/electoralsystem00mckngoog#page/n350/mode/2up. See generally Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014). I also turn to Alexander Hamilton’s 1793 roll: a list of those holding “civil offices or employments under the United States.” My view accounts for the Hamilton roll. The President and other elected officials do not appear on the list because they are elected officials, not appointed officers.

Where such documents speak to civil Offices…under the United States, the use of “civil” simply refers to civilian positions, as opposed to military positions. I did not make this position up. Justice Story, in his celebrated Commentaries, stated that “civil office” as used in the Constitution referred to civilian positions as opposed to military (i.e., army and navy) positions. See 2 Joseph Story, Commentaries on the Constitution, Sections 789–790, at 257–259 (Boston, Hilliard, Gray, and Co. 1833), https://archive.org/stream/bub_gb_VZQPBIhVPsMC#page/n259/mode/2up.

Hennessey has his own interesting theory.
A civil office is one created by congress AFTER the ratification of the constitution.
That’s why Hamilton’s list does not include Senators, members of the House, or the President or Vice President. They are not “civil offices under the united states,” because they are created by the Constitution.
So Hamilton’s list does not provide evidence that the foreign emoluments clause doesn’t apply to elected positions in the federal government.[5]
Hennessey puts forward no explanation why “civil office” means statutory office, i.e., offices created by Congress. Nor does Hennessey explain why his theory is better than Joseph Story’s. (Actually, Hennessey does not even cite to Story.) Still Hennessey, at least, has a theory. I propose to give Hennessey’s theory a fair hearing. If Hennessey is correct, if “civil office” means statutory or appointed office, then that would explain why the President and other elected officials do not appear on Hamilton’s roll of officers. So Hennessey’s theory and my position have something in common: they both explain why Hamilton’s roll of officers included no elected federal positions.

But the two theories—Hennessey’s and my own—are not exactly the same.

My position is that “civil” means civilian. So, in regard to the Hamilton roll of officers (which uses "civil offices or employments under the United States"-language), my theory would predict that military officers (which are statutory officers and appointed positions) should not appear in Hamilton's list. Hennessey’s theory (as I understand it) is that “civil office” does not refer to civilian positions, but refers to all statutory positions—civil and military. So under Hennessey’s theory (as I understand it), Hamilton’s roll of officers should include all the officers in the regular United States military: [i] all army officers, i.e., the uniformed officers in the United States Army, and [ii] all naval officers, i.e., the uniformed officers in the United States Navy. (Whether the words “office” and “officer” should extend to non-commissioned officers and/or to enlisted personnel is a question for another day.) 

I have reviewed the Hamilton roll of officers many times over the course of many years. There is no list of United States Army officers in Hamilton’s roll—there is no list of (U.S. Army) lieutenants, captains, majors, colonels, and/or generals. There is no list of United States Navy officers in Hamilton’s roll—there is no list of (U.S. Navy) lieutenants, commanders, captains, and/or admirals. Not only is there no complete list of such officers in the regular U.S. military, there is not even a skeletal list or outline identifying the major commanders at each army post, at each naval port (or on board each U.S. Navy ship), or in reference to major regional commands or in each state of the Union. [The original Hamilton-signed document and its subsequent reproductions and reprints are all online.[6] See, e.g.,  


In short, Hennessey’s theory does not account for the Hamilton document. My position does. “Civil” means “civilian,” and Office…under the United States means statutory office. Or, at least, that is what these terms meant circa 1793 when Hamilton (and his staff) drafted (and compiled) his roll of officers. I point out that Hamilton’s roll was 90 pages long, that Hamilton used manuscript size pages, and that Hamilton took about 9 months to draft this document in response to a request from the United States Senate. See Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399, 414–15 (2012). If Hamilton intended to include elected officials and/or military officers in his roll, he certainly had the time and opportunity to do so. 

Is it really likely (as plaintiffs in the Foreign Emoluments Clause cases would have us believe) that Hamilton just forgot to list the President and all the other elected federal officials in his roll of officers?

Is it really likely (as Hennessey would have us believe) that Hamilton (a former U.S. Army officer!) just forgot to include the entire military establishment in his roll of officers?

To me, at least, plaintiffs’ position in the Foreign Emoluments Clause cases and Hennessey’s theory amount to this—they both know better than Alexander Hamilton.

Seth Barrett Tillman, Jonathan Hennessey on the Foreign Emoluments Clause: A Response, New Reform Club (April 29, 2018, 8:18 AM), 
https://reformclub.blogspot.com/2018/04/jonathan-hennessey-on-foreign.html





[1] Jonathan Hennessey, ReConstituting: The U.S. Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017), http://www.jonathanhennessey.com/documentary-donald-trump-emoluments/ (30:04–48:00 on Tillman, and postscript at 51:50–54:16 again on Tillman); Jonathan Hennessey, Reconstituting: The Emoluments Clause(s) and Donald Trump, YOUTUBE, https://www.youtube.com/watch?v=zkL6x18cJsU; Jonathan Hennessey, The U.S. Constitution’s Emoluments Clause & Donald Trump: Reconstitutinghttps://vimeo.com/226189281.  

[2] Id.

[3] See Jonathan Hennessey (@iamaraindogtoo) on Twitter, Definitive argument refuting Seth Barrett Tillman (Sept. 25, 2017, 9:20 AM), https://twitter.com/iamaraindogtoo/status/912351039730327552 (reporting “likes” from Professors Jed Shugerman and Gautham Rao); see also Comment from Rockinghorsewithnoname on Shugerblog (Sept. 25, 2017, 4:24 PM) (same substantive discussion, and linking to Hennessey’s website) (apparently rockinghorsewithnoname is Hennessey’s nom de plume on Twitter, blogs, and elsewhere), https://shugerblog.com/2017/08/31/questions-about-the-emoluments-amicus-brief-on-behalf-of-trump-and-its-use-and-misuse-of-historical-sources/.

[4] Jonathan Hennessey, ReConstituting: The U.S. Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017), http://www.jonathanhennessey.com/documentary-donald-trump-emoluments/ (at 6:40–6:55). It is possible that what Hennessey meant to say was that ratification failed by a single state. 

[5] See Jonathan Hennessey (@iamaraindogtoo) on Twitter, Definitive argument refuting Seth Barrett Tillman (Sept. 25, 2017, 9:20 AM), https://twitter.com/iamaraindogtoo/status/912351039730327552 (reporting “likes” from Professors Jed Shugerman and Gautham Rao); see also Comment from Rockinghorsewithnoname on Shugerblog (Sept. 25, 2017, 4:24 PM) (same substantive discussion, and linking to Hennessey’s website) (apparently rockinghorsewithnoname is Hennessey’s nom de plume on Twitter and elsewhere), https://shugerblog.com/2017/08/31/questions-about-the-emoluments-amicus-brief-on-behalf-of-trump-and-its-use-and-misuse-of-historical-sources/. For a good history of the (failed) Titles of Nobility Amendment, see Gideon M. Hart, The "Original" Thirteenth Amendment: The Misunderstood Titles of Nobility Amendment, 94 Marq. L. Rev. 311 (2010); Jol. L. Silversmith, The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility, 8 S. Cal. Interdisc. L.J. 577 (1999). See generally Congressional Research Service / Library of Congress, The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 112-9, 112th Cong., 2d Sess. 49 (Michael J. Garcia et al. eds., Centennial ed., interim edition with cases decided by the Supreme Court of the United States to Aug. 26, 2017), https://www.congress.gov/content/conan/pdf/GPO-CONAN-2017.pdf


[6] You can find good links to all the documents here: Seth Barrett Tillman, A Work in Progress: Select Bibliography of Court filings and Other Sources Regarding the Foreign and Domestic Emoluments Clauses Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html. See especially exhibit K through exhibit R. Hamilton's roll in American State Papers is also available here: See, e.g.,  

Sunday, April 08, 2018

The Great Convention of 2018






Seth Barrett Tillman, The Great Convention of 2018, New Reform Club (April 8, 2018, 6:22 PM), 
https://reformclub.blogspot.com/2018/04/the-great-convention-of-2018.html



Monday, April 02, 2018

Professor Nourse on the Three Emoluments Clauses Cases Against the President


Notice that Professor Nourse ends her analysis with “even President Trump’s lawyers now admit that the Foreign Emoluments Clause does in fact cover the President.” Victoria Nourse, Reclaiming the Constitutional Text from Originalism: The Case of Executive Power, 106 Calif. L. Rev. 1, 28 (Feb. 2018) (emphasis added). Why does Nourse use the word “now”? Why does she use the word “admit”? The President’s personal lawyers took the position that the Foreign Emoluments Clause applies to the President. See Sheri Dillon et al., Morgan Lewis LLP White Paper, Conflicts of Interest and the President (Jan. 11, 2017), [https://assets.documentcloud.org/documents/3280261/MLB-White-Paper-1-10-Pm.pdf] [https://perma.cc/B8BU-X4U3]. This document was made public more than a full calendar year before Nourse published her paper in California law Review. So why does Nourse write “now admit”? And why write “admit”? Is there any evidence that the President’s Morgan Lewis attorneys had first taken or considered taking a different position, but were pressed or consented to making the “admission” that the Foreign Emoluments Clause applies to the President? I have no good reason to believe that Morgan Lewis counsel considered the alternative: i.e., that the clause does not apply to the President.

Moreover, Department of Justice counsel representing the President, in his official capacity, i.e., counsel who have submitted actual court filings, and who have written on this issue more recently than the President’s Morgan Lewis counsel, have made no such “admission.” Department of Justice Counsel have announced this more nuanced view both before and after Nourse published her article. Compare President of the United States’ Statement of Interest at 4 n.2, DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 26, 2018) (Messitte, J.), Dkt. No. 100, 2018 WL 1511801, https://ssrn.com/abstract=3150220 (“We assume for purposes of this Statement that the President is subject to the Foreign Emoluments Clause.”) (filed after Nourse published her article in February 2018), with Letter from Department of Justice Counsel to Judge Daniels at 1, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 25, 2017) (Daniels, J.), Dkt. No. 98 (“[T]he government has not conceded that the President is subject to the Foreign Emoluments Clause.”) (filed before Nourse published her article in February 2018, but long after Morgan Lewis counsel had made public their legal advice for the President). It appears that Professor Nourse does not understand the prior filings, current posture, and the chronology of events in the three Emoluments Clauses cases.

Seth Barrett Tillman, Professor Nourse on the Three Emoluments Clauses Cases Against the President, New Reform Club (April 2, 2018, 12:37 PM), 



Tillman's Primary Briefs, Publications, etc on the "Office" Question


Briefs
Letter Brief filing Supplemental Authority, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Mar. 19, 2018) (Messitte, J.), Dkt. No. 97, https://www.scribd.com/document/374271648/D-C-and-Maryland-v-Trump-Notice-of-Supplemental-Authority-3-19-18https://ssrn.com/abstract=3141732;


Letter Brief, from Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Seeking an Order in regard to Plaintiffs’ Motion to Amend the Complaint, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Jan. 29, 2018) (Messitte, J.), Dkt. No. 88, 2018 WL 1128948, https://www.scribd.com/document/370301834/Maryland-v-Trump-Correspondence-1-29-18, https://ssrn.com/abstract=3112896;

 

Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & State of Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.), Dkt. No. 77, 2017 WL 6880026, 2017 U.S. Dist. Ct. Motions LEXIS 466, https://ssrn.com/abstract=3089868;

 

Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Messitte, J.), Dkt. No. 27-1, 2017 WL 4685826, 2017 U.S. Dist. Ct. Briefs LEXIS 410, https://ssrn.com/abstract=2996355;


Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Sept. 19, 2017) (Sullivan, J.), Dkt. No. 16-1, 2017 WL 4230605, 2017 U.S. Dist. Ct. Briefs LEXIS 30, https://ssrn.com/abstract=2996384;

Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-1, 2017 WL 4685886, 2017 U.S. Dist. Ct. Briefs LEXIS 408, https://ssrn.com/abstract=3002345;

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, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.), Dkt. No. 37, 2017 WL 2692500, 2017 U.S. Dist. Ct. Briefs LEXIS 402, https://ssrn.com/abstract=2985843;

Declaration: A Court Filing:
Declaration of Seth Barrett Tillman, Lecturer (Exhibit D), in Amicus Curiae Scholar Seth Barrett Tillman’s and Proposed Amicus Curiae Judicial Education Project’s Response to Amici Curiae by Certain Legal Historians, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Sept. 19, 2017) (Daniels, J.), Dkt. No. 85-5, 2017 WL 7795997, https://ssrn.com/abstract=3037107;

Peer Reviewed Puublications:
Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Brit. J. Amer. Leg. Studies 95 (2016) (peer reviewed);

Seth Barrett Tillman, Why Professor Lessig’s “Dependence Corruption” Is Not a Founding-Era Concept, 13 Election L.J. 336 (2014) (peer reviewed);

Other Major Publications:
Seth Barrett Tillman, The Foreign Emoluments Clause—Where the Bodies are Buried: “Idiosyncratic” Legal Positions, 59 S. Tex. L. Rev. 237 (forth. circa 2018) (invited symposium contribution), https://ssrn.com/abstract=3096986;

Seth Barrett Tillman, Business Transactions and President Trump’s “Emoluments” Problem, 40 Harv. J.L. & Pub. Pol’y 759 (2017);

Seth Barrett Tillman, Originalism & The Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59 (2014);

Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013);


Seth Barrett Tillman, Closing Statement, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. Colloquy 180 (2013;



Seth Barrett Tillman, Why Our Next President May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause, 4 Duke J. Const. L. & Pub. Pol’y 107 (2009); 4 Duke J. Const. L. & Pub. Pol’y Sidebar 1 (2008);



Seth Barrett Tillman, Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pennsylvania L. Rev. PENNumbra 134, 135–40 (2008);

Seth Barrett Tillman, Closing Statement, An “Utterly Implausible” Interpretation of the Constitution: A Reply to Professor Steven G. Calabresi, in Seth Barrett Tillman & Steven G. Calabresi, Debate, The Great Divorce: The Current Understanding of Separation of Powers and the Original Meaning of the Incompatibility Clause, 157 U. Pennsylvania L. Rev. PENNumbra 134, 146–53 (2008);

Lesser Publications:
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), http://tinyurl.com/jxro4o9;

Seth Barrett Tillman, Matters of Debate, The Foreign Emoluments Clause Reached Only Appointed Officers, in The Interactive Constitution (National Constitution Center 2016), https://tinyurl.com/ybgeu3cd;

Opinion Editorials & Letters to the Editor
Josh Blackman & Seth Barrett Tillman, Opinion Editorial, The ‘Resistance’ vs. George Washington, Wall Street Journal, Oct. 15, 2017, at A17, https://www.wsj.com/articles/the-resistance-vs-george-washington-1508105637;

Josh Blackman & Seth Barrett Tillman, Opinion Editorial, Yes, Trump Can Accept Gifts, NY Times, July 13, 2017, http://ssrn.com/abstract=2999976, http://tinyurl.com/ycqa26bs;

Seth Barrett Tillman, Letter to the Editor, Oath of Officers, 15(3) Claremont Review of Books 11, Summer 2015, http://ssrn.com/abstract=2623473;

Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php;

Conference Paper:
Seth Barrett Tillman, Loyola University of Chicago Law School, Fourth Annual Constitutional Law Colloquium Conference Paper, Six Puzzles for Professor Akhil Amar (2013), https://ssrn.com/abstract=2173899 (citing to the Hamilton documents);





Unpublished Manuscripts

Seth Barrett Tillman, Either/Or: Professors Zephyr Rain Teachout and Akhil Reed Amar—Contradictions and Reconciliation (2012) (unpublished manuscript), https://ssrn.com/abstract=1970909;

Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson: Three (or Four) Views of the Cathedral and the Mysterious Identity of the ‘Officers under the United States’ (2011) (unpublished manuscript), https://works.bepress.com/seth_barrett_tillman/203/ (click under “Related Files” for images of the various Hamilton documents);

Seth Barrett Tillman, Legislative Officer Succession to the Presidency (April 6, 2007) (unpublished manuscript), http://tinyurl.com/pcqdp3 (parts I & II), http://tinyurl.com/qmzu26 (part III) (click under “Citation Information” for charts);


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Seth Barrett Tillman, Tillman's Primary Briefs, Publications, etc on the "Office" Question
New Reform Club (April 2, 2018, 9:12 AM), 
https://reformclub.blogspot.com/2018/04/tillmans-primary-briefs-publications.html




My publications can be found on Westlaw, LexisNexis, HeinOnline, and on the Social Science Research Network. See Scholarly Papers [of Seth Barrett Tillman], Social Science Research Network (last visited Jan. 7, 2018), https://ssrn.com/author=345891