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),