DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey)

Plaintiffs also dispute the significance of the historical precedent of President George Washington purchasing several lots of public land from the federal government. Def.’s Suppl. Br. at 15. The President had urged that this precedent demonstrated that the Framers did not intend the term “Emolument” as used in the Constitution to extend to all benefits regardless of context. Plaintiffs now argue that this historical precedent is undermined by the fact that the Inspector General of the General Services Administration (“GSA”) found evidence indicating that the lots of land purchased by Washington—which were “ceded to the United States for the District of Columbia,” GSA Inspector General Report (“GSA Report”), ECF No. 63-1, App. A at 15—were “owned privately,” Pls.’ Opp’n at 21 (quoting GSA Report at 15); see also GSA Report, App. A, at 4. The GSA report itself, however, describes the lots purchased by Washington as “public lots,” stating that “[t]he six public lots that Washington purchased during his presidency appear to be among the lots that the proprietors donated for sale, in order to raise funds for the President’s House (White House), the Capitol and other government buildings (and return a share of the proceeds to the proprietors).” GSA Report, App. A at 4 (emphasis added). The Inspector General’s view—which expressly did “not reach a definitive judgment,” id. at 6—that the sales were private transactions apparently was based on her finding that “Maryland’s cession of land for the new district ceded sovereignty to the United States . . . but not title to the land,” and that the cession was not intended to “vest in the United States any right of property in the soil, as to affect the rights of individuals therein . . . .” Id. at 4 (citation omitted). 
   Even assuming ambiguity about the title and ownership of the land donated to the United States by the landowners, there is no doubt that Washington benefited personally from the federal government through his purchase of the land donated to the United States. The Commissioners were federally appointed and authorized by President Washington to conduct the public sale of the donated land, and they described the land as public property. [See Certificate for Lots Purchased in the District of Columbia (Sept. 18, 1793); see also 1 Stat. 130; Letter from Commissioners for the District of Columbia to George Washington (Sept. 16, 1793) (seeking Washington’s “permission to make sales of the publick property in the City of Washington”).] They did not conduct the sale on behalf of the private landowners, and in fact, the landowners received no proceeds from the sale.

As President Washington explained to Thomas Jefferson about the agreement he reached in his capacity as President with the individual landowners, the land was “ceded to the public” except that “[t]he landholders [were] to have the use and profits of all their ground until the city is laid off into lots, and sale is made of those lots which, by this agreement, become public property.” [See Letter from George Washington to Thomas Jefferson (March 31, 1791).]

That is, the land sold by the D.C. Commissioners was land donated to the United States and was public property when purchased by Washington. In addition, Washington stated that “the present Proprietors shall retain every other lot” beyond those ceded and would “be allowed at the rate of Twenty five pounds per acre” as payment “for such part of the land as may be taken for public use, for square, walks, &ca.” [Id.] Consistent with this understanding, one amicus has explained that although the Commissioners “did make certain payments to the landowners . . . , those payments were not [to pay] for auctioned land, such as the lots Washington bid on,” but were for land appropriated for public use at £25 per acre, and “[n]o payments were made to the proprietors for the land that was sold at auction. The proprietors gifted such land to the government in the expectation that their other properties in the new federal capital would become more valuable.” [quoting Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project at 14–16, DC & MD v. Trump, No. 18-2488 (4th Cir. Jan. 31, 2019), Doc. No. 31-1, 2019 WL 411728.]

In any event, the Court need not decide this disagreement as to the historical record. Again, for purposes of interlocutory appeal, it is enough that reasonable jurists could conclude that Washington received benefit from the federal government through the land sale transactions; that if Plaintiffs’ interpretation of “Emolument” were correct, then Washington likely violated the Domestic Emoluments Clause; and that this historical precedent therefore casts doubt on Plaintiffs’ interpretation.

Extract from: Defendant’s [Supplemental] Reply in Support of his Motion Pursuant to 28 U.S.C. § 1292(b) and of its Motion to Stay Proceedings at 14–16, Blumenthal v. Trump, Case 1:17-cv-01154-EGS (D.D.C. May 28, 2019) (Sullivan, J.), ECF No. 77 (citations omitted) (emphasis added). See generally Docket in Blumenthal v. Trump; 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). 

Seth

Seth Barrett Tillman, DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey), New Reform Club (May 29, 2019, 9:21 AM), <https://reformclub.blogspot.com/2019/05/doj-response-to-office-of-inspector.html>.

See also Jonathan Hennessey, The Foreign Emoluments Clause Applies to the President, Vice President, and All Other Positions in the Federal Government: A Response to Prof. Seth Barrett Tillman (May 14, 2019); Jonathan Hennessey, News & Commentary, ‘Obfuscation’ on emoluments issue, The Baltimore Sun, Mar. 19, 2019, at 13; Jonathan Hennessey, “BROTHER FARMER”: GEORGE WASHINGTON, ARTHUR YOUNG, AND DISMISSING ANOTHER FOREIGN EMOLUMENTS CLAUSE INTRIGUE, Medium (Feb. 22, 2019); Jonathan Hennessey, A PROSPECT OF AMPLE FUNDS: THE WASHINGTON “EMOLUMENT,” Medium (Sept. 20, 2018); Jonathan Hennessey, Article: The Washington “Emolument,” Jonathan Hennessey (Sept. 20, 2018); Jonathan Hennessey, ReConstituting: The U.S.Constitution’s Emoluments Clause and Donald Trump—Full Documentary, Jonathan Hennessey (July 24, 2017). 

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