New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause

President George Washington’s Multiple Purchases Involving Federal Lands

The purpose of this post is to further develop, accentuate, and clarify a point I developed in my 2017 Harvard Journal of Law & Public Policy paper, in my several amicus briefs (filed by Professor Josh Blackman), and in our (Blackman’s and my) recent post on The Volokh Conspiracy.

In his July 25, 2018 opinion denying the Department of Justice’s motion to dismiss in DC & MD v. Trump, Judge Messitte (D. Md.) concluded that the Domestic Emoluments Clause and its “emoluments” language reaches the President’s private commercial transactions with domestic government entities. This understanding of “emoluments” includes all such transactions, even if the President does not have a traditional employment-like relationship with the party on the other side of the transaction. Judge Messitte reached that conclusion only after he rejected as good historical precedent President Washington’s several land transactions in 1793 with the federal government. Messitte rejected the precedential value of these transactions for two reasons.

First, Judge Messitte said the historical record in regard to these transactions was “seriously incomplete.” Slip op. at 46. Specifically, he stated that there was no information as to: [i] what kind of land auction was held; [ii] how it was advertised; and, [iii] how many bidders were involved. The Blackman-Tillman amicus brief put forward good authority answering each of these three questions—[i] it was an open auction with oral bids; [ii] it was advertised in a Philadelphia newspaper 6 months prior; and, [iii] there were some 18 bidders. See Blackman-Tillman Br. at 28–29. 

Judge Messitte also stated that the whole transaction was suspect because “Washington later made clear that he was ‘ready to relinquish’ the property.” Slip op. at 46. Messitte based his conclusion here on representations made by Plaintiffs in their brief. But Plaintiffs erred here, and Messitte erred in relying on their representations—all of which were squarely contrary to the Department of Justice’s brief, to the primary document cited by both parties, and to my prior scholarship on this point. See Tillman, Harvard Journal of Law & Public Policy, 761 & n.7, 762 & n.13. Washington bought four lots of land at public auction on September 18, 1793. That is lots nos. 5, 12, 13, and 14 in square 667 (in the new federal capital), for which Washington was given two separate certificates of purchase.

Washington never expressed, in any way, any desire to relinquish that land—i.e., the land he purchased in 1793. Instead, what Washington did do was to express an interest in making further purchases in the future—in square 21 (again, in the new federal capital). Washington explained in a 1794 letter to his land commissioners: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this [future] purchase.” Founders Online (emphasis added). Again, Professor Josh Blackman and I explained in our prior post on The Volokh Conspiracy that the 1793 land purchases are a substantial public precedent from early Executive Branch practice indicating that the President’s private commercial transactions—even with the federal government—are not “emoluments” and are not subject to the Domestic Emoluments Clause. Moreover, no contemporaneous or subsequent authorities (of which we are aware) have ever suggested that President Washington acted unconstitutionally (or, even, unethically) until litigation began against President Trump. Once the litigation against President Trump began, an Orwellian project of rewriting our national history took shape. Regrettably, Judge Messitte’s recent judicial opinion embraced that revisionism. (Representations of just this sort have been pattern-and-practice by plaintiffs and their supporting amici in each of the three Emoluments Clauses lawsuits: I write from personal experience.) 

Here I clarify what happened subsequent to 1793.

In 1794, President Washington went forward, just as he had suggested he might, and purchased square 21. In other words, what had been an “idea” became a reality. See From George Washington to the Commissioners for the District of Columbia, 14 March 1794, Founders Online (last accessed Sept. 23, 2018), https://founders.archives.gov/documents/Washington/05-15-02-0289 (“GW ultimately purchased square 21.”).

All these facts—both the original purchases at the 1793 government auction and the subsequent purchase in 1794—are supported by a pellucidly clear documentary record. Yet, Judge Messitte characterizes all these transactions as a “single example” involving the President’s purchasing federal lands. Slip op. at 46 (emphasis added). The historical reality is quite different: there were, at the very least, two such transactions: one in 1793 and one in 1794. There may even have been as many as five Washington land transactions: four separate purchases in 1793, and a fifth in 1794. (In other words, a separate purchase for each of the 4 lots purchased in 1793 and a fifth purchase for square 21 in 1794.) More importantly, the evidence of the 1794 land transaction confirms Blackman’s and my interpretation (and the DOJ’s interpretation) of Washington’s 1794 letter to his land commissioners. When Washington wrote: “I should be glad to know what my prospect is; adding, that I am as ready to relinquish, as I was to imbibe the idea, of this purchase,” he was writing about an idea—that is, an idea for a future land purchase. He ultimately consummated that future land purchase in 1794. It was square 21.

What does all this mean? It means notwithstanding titanic efforts by Plaintiffs (which misled the court) to impeach the 1793 land transaction(s) as on-point, that view cannot withstand genuine historical scrutiny. Washington’s 1793 land purchases are an on-point precedent showing that early Executive Branch practice permitted the President to do business with the federal government, notwithstanding the Domestic Emoluments Clause and its “emoluments” language. (Indeed, one of President Washington’s land commissioners served on the Supreme Court of the United States and had also been Chief Judge of the General Court of Maryland.) 

The choice then is a simple one: either Judge Messitte was right in 2018, and President Washington (and the American public) was wrong in 1793 and 1794; or, President Washington was right, and Judge Messitte is wrong. They cannot both be right. Then-Justice Rehnquist stated the appropriate rule in Wallace v. Jaffree: “[N]o amount of repetition of historical errors in judicial opinions can make the errors true.” 472 U.S. 38, 107 (1985) (Rehnquist, J., dissenting). 

Pending before the District of Maryland is the DOJ’s motion to certify an interlocutory appeal. DOJ asserts that Judge Messitte’s “reasoning” about Washington’s participation in the 1793 land auction “is premised on a factual error introduced by Plaintiffs.” The DOJ adds that this historical error warrants certification so the Fourth Circuit can assess the proper scope of the term “emoluments”:

This historical example is significant not only because it involved the conduct of President Washington, but also because one of the three D.C. Commissioners had attended the Constitutional Convention, and the other two had voted in the state ratification conventions. See MTD at 43–44. And yet, no concern was raised about a possible violation of the Domestic Emoluments Clause. Reasonable jurists thus could disagree about whether this example should tip the scale in favor of the narrower interpretation of “Emolument.”

I agree. I would urge Judge Messitte to do the right thing: he should either retract his error, or grant the DOJ’s motion so another court can consider this well-documented historical record.

Seth Barrett Tillman, New Evidence That President Washington, and not Judge Messitte, Was Right about the Domestic Emoluments Clause, New Reform Club (Sept. 23, 2018, 11:29 AM), 

https://reformclub.blogspot.com/2018/09/new-evidence-that-president-washington.html.