Extract from: Declaration of Professor Seth Barrett Tillman [on Behalf of Plaintiff
Dinner Table Action], Dinner Table Action v. Schneider, Civ. A. No.
1:24-cv-00430-KFW (D. Me. Apr. 23, 2025) (Karen Frink Wolf, Magistrate Judge, sitting
by consent), ECF No. 62-3 (declaration filed by Charles M. Miller, Esq., Institute
for Free Speech, and Joshua D. Dunlap, Esq., Pierce Atwood LLP) (complaint filed
Dec. 13, 2024), 2025 WL -------, <https://www.courtlistener.com/docket/69464009/dinner-table-action-v-schneider/>,
<https://ssrn.com/abstract=5225614>.
[34] We
might . . . ask: Do the anti-corruption concerns of the Framers and ratifiers,
apart from constitutional text, supply a free-standing interpretive principle
through which we could understand the Constitution? I believe the answer to
this question is “no.” Where there is genuine ambiguity in a constitutional
provision, a fair-minded interpreter who is aiming to determine a clause’s
original public meaning can look to purpose, background assumptions, and policy
concerns (such as limiting corruption) to determine the meaning and scope of a
provision’s text. But where there is no genuine ambiguity, the agreed text
should control. Likewise, a fair-minded interpreter should not look to Framers’
and ratifiers’ purposes, background assumptions, and policy concerns to
generate interpretive principles abstracted from constitutional text. Why?
First, no one agreed to purpose, background assumptions, and policy concerns.
What was agreed to was the Constitution’s text. The Constitution nowhere uses
the language of “corruption.” Thus, our injecting “corruption” into the
interpretive process risks displacing other purposes, background assumptions,
and policy concerns which were in play in 1787–1788. Second, we should not
confuse a widely shared policy concern (e.g., limiting corruption) with
widespread agreement as to what that policy entails. I do not doubt that every
member of the Constitutional Convention sought to limit corruption. Corruption-discourse
was widespread in the 18th century, at the Constitutional Convention, and in
public debate on the Constitution during 1787–1788. But a shared use of
corruption-related language in political debate does not mean that the
participants in that debate had any widely shared understanding of what
corruption was, or what policies would effectively limit corruption, or what
level of corruption (if any) should be risked to facilitate accomplishing other
important and widely shared policy goals. It is precisely because such
questions are, in my view, unanswerable that our understanding of the law of the
Constitution should be tethered to constitutional text. Finally, “corruption”
is an amorphous term, as is “virtue” or the “common good.” In my opinion, the
idea that specific substantial legal issues should be decided by reference to
such amorphous terms, abstracted from constitutional text, is fundamentally
unsound.
[35]
Corruption in the form of quid-pro-quo
bribery is relatively easy to identify. When an elected official solicits or
accepts a bribe in the form of cash or property for performing or promising to
perform some public act (or some inaction), all the benefits flow to the
recipient, and none to the public. The transaction is usually hidden from
public view, and the money or property may be secreted in a closet or [placed] under an
assumed name or false identity. And the recipient is unlikely to pay taxes on
his “earnings.” Perhaps, this relative ease in regard to identifying such
transactions is one reason why this wrong, that is, quid-pro-quo
bribery, is among the three charges which will support a conviction under the
Constitution’s Impeachment Clause. By contrast where a public
official trades an official action for another public act, it is much less
clear if the public official’s conduct is a bribe or corrupt. On Lawfare,
my co-author and I wrote:
Judge
Frank Easterbrook stated this principle in even stronger terms regarding the
conviction and sentencing of Illinois Governor Rod Blagojevich, who offered to
appoint Valerie Jarrett, a close associate of President-elect Obama, to a
vacant U.S. Senate seat, in exchange for Blagojevich’s receiving an appointment
to the Obama cabinet. Blagojevich was convicted on multiple counts. On appeal,
in U.S. v. Blagojevich (2015), the U.S. Court of Appeals for the Seventh
Circuit found that particular counts of his conviction could not stand. Judge
Easterbrook explained that “a proposal to trade one public act for another, a
form of logrolling, is fundamentally unlike the swap of an official act for a private
payment.” He added that “[g]overnance would hardly be possible without”
political log-rolling, “which allow[s] each public official to achieve more of
his principal objective while surrendering something about which he cares less,
but the other politician cares more strongly.”
Thus,
according to Easterbrook, in such circumstances, even mixed motives are
irrelevant. Such acts are presumptively lawful, and should not be investigated,
let alone be considered for indictment or impeachment. If there is any evidence
that there was some sort of secret benefit (such as a suitcase full of cash),
then the government can investigate and, if warranted, prosecute that
additional act. The secretness of the benefit is evidence of corrupt intent.
Where one public official act is traded for another public official act, there
has not been any illegal conduct.
We
can think of one high-profile and far more brazen effort by a president to
improve his party’s prospects through the use of official communications. In
1864, during the height of the Civil War, President Lincoln encouraged Gen.
William Tecumseh Sherman to allow soldiers in the field to return to Indiana to
vote. What was his primary motivation? It was to make sure that the
government of Indiana remained in the hands of Republican loyalists who wished
to continue the war until victory. This action risked [temporarily] undercutting
the military effort by depleting the ranks. Lincoln had dueling motives.
Privately, he sought to secure a victory for his party. This personal interest
should not impugn his public motive: win the war and secure the nation.
A
common definition, but by no means universal definition, for “corruption,” is
using public power or resources for private gain or ends. Using this
definition, the key problem for deciding what is or is not corrupt would depend
on what is considered “private gain or ends” as opposed to legitimate public ends. In his PhD dissertation,
Professor Jonathan Gienapp wrote:
In
the wake of several political defeats (including the dispute over the [B]ank
[of the United States]), Madison began spending more time with [his] old friend
Jefferson. The two began more consciously recognizing the connection between
their relationship and the political fate of the nation. In the spring of 1791
the two Virginians took a fateful “botanizing” tour north to New York and New
England during which time they contemplated opposition and forged political
alliances. From their perspective, the situation was too dire, Hamilton’s
schemes too pernicious, and Washington’s innocence too unreliable not to take
more drastic steps.
The
critical move was to bring Philip Freneau, who had acquired a reputation through
his earlier newspaper work, to Philadelphia. Just days after Washington signed the
bank bill into law, [Secretary of State] Jefferson offered Freneau a position
as translating clerk in the State [D]epartment in the hope that he would
establish a newspaper to challenge John Fenno’s strongly pro-administration Gazette
of the United States. Freneau agreed and in October began publishing the National
Gazette, a paper which while at first tame would explode in
anti-Hamiltonian hysteria the next spring in the wake of the financial
speculations that had begun to unsettle the nation. With rival newspapers
unleashed, before long open partisanship would consume the infant republic.
I
do not doubt Gienapp’s report of the history here. What is interesting about
this passage is that it does not address whether or not, given all the
circumstances, and then prevailing norms, Jefferson’s appointing Freneau to a
public post was corrupt. Sometimes seeing the issue, and its complexity, is
more important than identifying an answer (or, better, what one believes to be
the answer).
A corruption-minimalist would argue that
Jefferson was not seizing Freneau’s public salary, and that (as far as we know)
Freneau, like other potential candidates for the State Department translator
position, was capable and, in fact, did his job. The public was not
meaningfully disadvantaged by the appointment and the public received the
primary benefits for which Congress authorized the creation of that position and
its compensation with a salary drawn on the public treasury. Using that narrow
framework, Jefferson’s conduct was not wrongful or corrupt. Furthermore,
Jefferson subjectively believed that his faction’s winning seats in Congress
and his prevailing in a future contest for the presidency was in the public
interest.
By contrast, a corruption-maximalist would
argue that Jefferson was not choosing the candidate most fit for the job. He
was not using his control over a public position entirely for the ends for
which Congress authorized the position and authorized its compensation with a
salary drawn on the public treasury. Rather, he was using the position to
facilitate an arguably private interest: his and his faction’s prevailing
in contested elections. He was using public power, at least in part, for
private ends. And in arriving at that conclusion, Jefferson’s subjective and
self-interested beliefs as to what constitutes good policy and who is best capable
of bringing that about (that is, himself or his political opponents) should play
no role.
So who is correct? The
corruption-minimalist or the corruption-maximalist? Honestly, I do not think
this question has anything like a clear answer. Furthermore, I do not think
there is any way to determine if the Framers, ratifiers, and the public circa
1788 were, systematically as a group, closer to one of these two views or to the
other. We do not have information in regard to their views at this level of
specificity.
All we have is the language they agreed to in the as-ratified Constitution. It
is the meaning of that language which should be our central focus.
The real issue is something else
entirely. Had Jefferson been impeached by the House or had a prosecutor sought
to try Jefferson for (non-quid-pro-quo) criminal bribery or extortion,
would the merits have been decided by any particular 18th conception of
corruption? I think not. Rather corruption would have become a vehicle casually
used to decide the political contest between the Hamiltonian and Jeffersonian
factions—the incipient factions which gave birth to our first political parties
as the Washington administration dragged on and came to a close. And that’s the point:
corruption, as that term was used in the late 18th century, is conceptually too
amorphous to determine concrete legal questions involving the Constitution, and
where that concept is given room, it merely provides an awkward arrow in the
quiver held by partisans in naked contests for political power. Finally, it is
worth noting that the Framers had actually included “corruption” as an
impeachable offense in the draft constitution reported by the Committee of
Detail, but it was subsequently dropped out. As a result, the Framers
did not include term “corruption” in any provision of the Constitution of
1788—so, whatever they meant by that term, they left it out, apparently
deliberately after having considered including it, and for that reason, among
others, we should not inject their understanding of that term back into our
(and their) Constitution.
Compare Jonathan Gienapp, Removal and the Changing
Debate over Executive Power at the Founding, 63 Am. J. Legal Hist. 229, 237–38 (2023) (arguing that Hamilton’s “The
consent of that body would be necessary to displace as well as to appoint”-language
in Federalist No. 77 referred to removal, and not to replacement), with
3
Joseph Story, Commentaries on the Constitution of the United States §§ 1532–1533 (Boston,
Hilliard, Gray, & Co. 1833) (explaining that presidential “removal takes
place in virtue of the new appointment [that is, by replacement], by mere
operation of law” and that this was Hamilton’s position in Federalist No. 77).
See generally Seth Barrett Tillman, The
Puzzle of Hamilton’s Federalist No. 77, 33 Harv.
J.L. & Pub. Pol’y 149 (2010) (cited
51 times) (explaining that Hamilton’s use of “displace” in Federalist No. 77
is ambiguous, but remaining generally supportive of Justice Story’s position).
