In
answering this question, i.e., Does the
Foreign Emoluments/Gifts Clause apply to presidents?, my own prior research
had examined the Mandan gifts and the Tsar’s gift. I did so because a
president’s receiving, accepting, and keeping a diplomatic gift is some
evidence that he believes his conduct in this regard is legal, i.e., compliant
with the Constitution. Where the president accepts the diplomatic gift in full public
view absent complaint by the public (or objections raised by later
commentators), then such conduct carries a presumption that he and the contemporaneous
public believed the president’s conduct was legal. Finally, where the public is
in the know, where it does not complain, and where a significant element of
that public is composed of the president’s opponents in Congress, in the press,
and in the country at large, then that is some further and significant substantial
indication that the public agrees that the president’s conduct is legal. In
regard to the Mandan gifts and the Tsar’s gift, Jefferson did not clearly speak
to any constitutional provision controlling his conduct; rather, to the extent he
spoke at all, he reported a personal rule of conduct—a rule which he was, on
occasion, willing to bend, if not waive. All told, that is some evidence,
albeit not conclusive evidence, that in Jefferson’s day, the Foreign
Emoluments/Gifts Clause was not understood as applying to the president (and,
by implication, to other elected federal officials).
Seth
The above is an extract from: Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>.
Dr. Fagal’s excellent article is here: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law and Hist. Review: The Docket (Dec. 2018), <https://tinyurl.com/y7ordjep>.
Seth Barrett Tillman, On Constitutional Methodology, New Reform Club (Feb. 18, 2019, 1:46 AM), <https://reformclub.blogspot.com/2019/02/on-constitutional-methodology.html>.
Seth
The above is an extract from: Seth Barrett Tillman, Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal (Feb. 14, 2019), <https://ssrn.com/abstract=3311186>.
Dr. Fagal’s excellent article is here: Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) Law and Hist. Review: The Docket (Dec. 2018), <https://tinyurl.com/y7ordjep>.
Seth Barrett Tillman, On Constitutional Methodology, New Reform Club (Feb. 18, 2019, 1:46 AM), <https://reformclub.blogspot.com/2019/02/on-constitutional-methodology.html>.
It seems that at least re: President Trump's businesses, the better analogue would be the sale of flour abroad by Washington, and similar sales by other Presidents engaged in agriculture on their privately owned lands.
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