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 Cases, New Reform Club (Feb. 28, 2018, 8:59 AM), https://reformclub.blogspot.com/2018/02/a-work-in-progress-select-bibliography.html. Litigation 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.,  

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=64; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=65; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=66; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=67; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=68; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=69; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=70; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=71; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=72; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=73; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=74; 

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=75. ]

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. 

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[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: Reconstituting, https://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.,  

https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=64; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=65; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=66; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=67; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=68; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=69; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=70; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=71; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=72; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=73; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=74; 
https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=75.