Part VI: DC & MD v Trump—Can the President of the United States get Married or Divorced?

The Foreign Emoluments Clause and the Domestic Emoluments Clause use the term “emolument.” Plaintiffs in DC & MD v. Trump** take the position that this term has an all-encompassing meaning: it extends to any and all gains, benefits, and profits. In short, in any dealings with state and foreign governments, the President cannot accept any benefit, and the only benefit he can receive from the federal government is his presidential compensation as set by federal statute. Plaintiffs look to support this position in early dictionaries. In trial court proceedings below, Judge Messitte accepted this broad definition, but he limited it by excluding de minimis benefits. Judge Messitte’s de minimis exception was: [1] not argued by the parties; [2] was not supported by the Constitution’s text; and, [3] was not supported by the very dictionaries put forward as proof of the broad definition of “emolument.”

On appeal, Plaintiffs again argue for the broad (purportedly) dictionary-based definition of “emolument.” It is not clear if Plaintiffs support Judge Messitte’s de minimis exception. Still, Plaintiffs have their own exception: they argue that nondiscretionary state and federal (and, ostensibly, foreign) benefits are not proscribed by the two Emoluments Clauses. In other words, if the President was already receiving a state benefit (perhaps a state pension) prior to his election, and if he has that benefit as matter of right under a state (or, ostensibly, a foreign) statute, then he may continue to receive that nondiscretionary benefit while President. Like Judge Messitte’s de minimis exception, Plaintiffs’ nondiscretionary-benefit exception is not supported by the Constitution’s text and it has no support in contemporaneous dictionaries. This definition would explain why a President could own Treasury Bills and Treasury Bonds in his portfolio, although a discretionary book deal with or sales to state-government, federal-government, or foreign-government affiliated libraries would still be prohibited.

Now let’s discuss Plaintiffs’ It is not OK for the President if it is a discretionary benefit rule. The President goes for a drive in nearby Maryland. His car is struck by a drunk driver. The President sues the driver in Maryland state court. Nearly every step in the litigation calls for the exercise of (at least some) judicial discretion. Does that mean the President cannot sue? Does that mean he cannot sue until he stops being President? Is the President uniquely excluded from all our domestic courts—including the federal courts? Even in DC & MD v. Trump, the President’s counsel has asked for relief in trial and appellate court proceedings, but if Plaintiffs’ theory is correct, the President must be denied relief of any type in any stage of the litigation. He cannot even ask for a 1-day adjournment! If Plaintiffs’ theory of the meaning of “emolument” is correct, then any federal civilian or military officer abroad is precluded from accessing any foreign court because doing so would be a forbidden foreign “emolument.” Is not that result, for lack of a better term, “absurd.”*** If Plaintiffs’ position is correct, any time any federal officer abroad tries to access a foreign court as a plaintiff (or, perhaps, even as a defendant), then that officer must get the consent of Congress per the Foreign Emoluments Clause. Does anyone think that has been our practice since 1789? Does anyone think it should be?

Here is another question: What if President Trump and his wife should choose to go their separate ways? Can the President seek a divorce? Getting a divorce is not a de minimis benefit. Getting a divorce, especially with concomitant determinations about the division of marital property, calls for judicial discretion—so I guess, under Plaintiffs’ theory, the President must remain married as long as he is President. Tough luck Melania! Under Plaintiffs’ theory, the President cannot get a divorce in a federal court—as that would be an “emolument” from the federal government beyond his regular presidential compensation (and so purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a state court—as that would be an “emolument” from a state government (again, purportedly precluded under the Domestic Emoluments Clause). He cannot get a divorce from a foreign court—as that would be a foreign “emolument” (and so purportedly precluded under the Foreign Emoluments Clause). Trump just can’t catch a break!

OK. Let’s say (G-d forbid) that Melania dies. After a suitable mourning period, President Trump decides to remarry. He asks Justice Ginsburg to officiate at the ceremony. Everyone is ready to go forward, but then the Attorney General for DC seeks an injunction against Justice Ginsburg’s officiating. She does not have to officiate. It is discretionary. Trump cannot claim his getting married under the auspices of any particular judge or Justice is a matter of right. So the upshot is that the ceremony is—off? Really? Now you might say: Not a big deal. He can still get married—in any state where a marriage license is a matter of statutory right, as opposed to a matter of discretion. So we are supposed to believe that the President’s right to marry is, at least in part, limited by the Emoluments Clauses? Who knew?

There is a simple way to avoid these “absurd”*** consequences flowing from an overbroad meaning for the term “emolument.” The Supreme Court explained that the term “emolument” had a limited meaning. The Court explained: “the term emoluments … embrac[es] every species of compensation or pecuniary profit derived from a discharge of the duties of the office.” Hoyt v. U.S., 51 U.S. (10 How.) 109 (1850) (Nelson, J., for a unanimous court) (emphasis added); see also Roger Kerridge & G. McDonald, Emoluments “from” an office or employment, 8 Brit. Tax Rev. 311, 314 (1991) (“All emoluments are from employments, or from the equivalent of employments, that is the essence of emoluments.”); Roger Kerridge, Emoluments “from” an office or employment, 9 Brit. Tax Rev. 315, 318 (1990) (“[W]hile it is perfectly possible to argue that a payment is a profit but that it is not a profit from an employment, it makes no sense to argue that something is an emolument but that it is not from an employment . . . .  All emoluments must be from employments.”). 

[A well informed commenter on Instapundit notes that 3 Presidents have married while in office. See <http://disq.us/p/20jo6ld>; see also <https://www.whitehousehistory.org/questions/what-are-some-interesting-facts-about-presidents-first-ladies>.] 

[Another commenter adds: “Under the definition put forth by the plaintiffs the President cannot attend a state dinner in a foreign country because that would be an emolument.” <http://disq.us/p/20jon5g>] 

Seth

PS: If you read this blog (or my other publications), and if you make use of its ideas or words in your own writings, I welcome citations to my posts (and to my other publications). And, yes, this request extends both to academics and to others. I am at a stage in my personal career where every citation counts.

Welcome Instapundit Readers! 

Seth Barrett Tillman, Part VI: DC & MD v Trump—Can the President of the United States get Married or Divorced?, New Reform Club (Mar. 20, 2019, 6:34 AM), <https://reformclub.blogspot.com/2019/03/part-vi-dc-md-v-trumpcan-president-of.html>. 

Seth Barrett Tillman, Trump’s 7% Panel, New Reform Club (Mar. 19, 2019, 10:05 AM), <https://reformclub.blogspot.com/2019/03/trumps-7-panel.html>. 

Seth Barrett Tillman, Part V: The Mystery of DC & MD v Trump, New Reform Club (Mar. 12, 2019, 11:30 AM), <https://reformclub.blogspot.com/2019/03/part-v-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part IV: The Mystery of DC & MD v Trump, New Reform Club (Mar. 11, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/03/part-iv-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part III: The Mystery of DC & MD v Trump, New Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J Trump, New Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. Trump, New Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>. 

Oral Argument in Official Capacity Case, DC & MD v. Trump, App. No. 18-2486 (4th Cir. Mar. 19, 2019), <http://www.ca4.uscourts.gov/OAarchive/mp3/18-2486-20190319.mp3>. 

Oral Argument in Individual Capacity Case, DC & MD v. Trump, App. No. 18-2488 (4th Cir. Mar. 19, 2019), <http://www.ca4.uscourts.gov/OAarchive/mp3/18-2488-20190319.mp3>. 

**I had several filings before the Fourth Circuit in this matter. See Motion of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project For Leave to Participate in Oral Arguments, In re Donald J. Trump, and DC & MD v. Trump, App. Nos. 18-2486, 18-2488 (4th Cir. Feb. 27, 2019), ECF No. 52 (App. No. 18-2486), ECF No. 43 (App. No. 18-2488), 2019 WL 979106, <https://ssrn.com/abstract=3340961>;

Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Defendant-Appellant, District of Columbia and State of Maryland v. Donald J. Trump, in his individual capacity, App. No. 18-2488 (4th Cir. Jan. 31, 2019), ECF No. 31-1, 2019 WL 411728, 2019 U.S. 4th Cir. Briefs LEXIS 3, <https://ssrn.com/abstract=3314702>; and,

Amicus Brief of Scholar Seth Barrett Tillman and the Judicial Education Project in Support of Petitioner, In re Donald J. Trump, in his official capacity, App. No. 18-2486 (4th Cir. Jan. 29, 2019), ECF No. 28-1, 2019 WL 366219, 2018 U.S. 4th Cir. Briefs LEXIS 11, <https://ssrn.com/abstract=3314703>. 

***DC & MD v. Trump, Civ. A. No. 8:17-cv-01596-PJM, 2018 WL 3559027, 2018 U.S. Dist. LEXIS 124129, 315 F. Supp. 3d 875, 884, 889 n.24, 896, 899, 902 n.39 (D. Md. July 25, 2018) (Messitte, J.) (using the term “absurd” to express disagreement with Justice Story and others), ECF No. 124, <http://www.mdd.uscourts.gov/news/opinion-issued-district-columbia-et-al-v-donald-j-trump-2018-07-25t000000>.