Hi,
I have attached a copy of: Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. U. L. Rev. 399 (2012). Pages 410 to 417, touching on the history and practice under the U.S. Constitution’s Foreign Emoluments Clause, may interest you.
For what it is worth, I do not believe the scope of the Foreign Emoluments Clause is obvious.
I also think [your] blaming everything that happened on the Supreme Court in relation to the prior Emoluments Clauses cases is misplaced. The lower court precedents were wiped out by the regular application of Munsingwear doctrine. The parties on both sides represented to the Supreme Court that the cases were moot. However, the plaintiffs chose not to pursue the individual-capacity claim against Trump, that is, only the official-capacity claim was actually moot.
Had these cases reached the U.S. Supreme Court in a timely fashion, then the Court may have had time to reach a decision on the merits. But the trial court proceedings moved slowly. The first CREW v. Trump complaint (S.D.N.Y.) was timely: it was brought during January 2017. But the first Blumenthal v. Trump complaint (D.D.C.) was lodged much later: during June 2017, not January 2017. Likewise the first DC & MD v. Trump complaint (D. Md.) was also lodged during June 2017. Throughout these three cases, plaintiffs repeatedly sought extensions in regard to the timing of their briefs, and this was in addition to plaintiffs’ filing multiple amended complaints in each case. Defendants (both the official-capacity [or DOJ] defendant, and the individual-capacity [or personal-Donald Trump] defendant only sought one extension in one of the three cases—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. Moreover, Judge Sullivan (D.D.C.) and Judge Messitte (D. Md.) were slow in calling for and holding an oral argument after briefing had closed, and they were slow to issue a final order after having held oral argument. Indeed, Messitte bifurcated his response to the official-capacity defendant’s motion to dismiss. Judge Messitte held two oral arguments and issued two separate opinions based on the official-capacity defendant’s single motion to dismiss. And, Messitte never resolved the individual-capacity defendant’s motion to dismiss.
Plaintiffs ran out the clock. That’s why the U.S. Supreme Court was left with no time and nothing to do as the official-capacity claim became moot when Biden became President. And again: the plaintiffs chose not to actively pursue the individual-capacity claim. If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. (By contrast, Judge Daniels (S.D.N.Y.) worked impartially, promptly, and professionally in every sense.*) Your blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments Clause is, at best, mistaken, and at worst, Orwellian.
Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases as an amicus. (Professor Blackman et al. represented me.)
Seth
Seth Barrett Tillman, ‘Correcting a Popular Misconception,’ New Reform Club (May 23, 2025, 4:52 AM), <https://reformclub.blogspot.com/2025/05/correcting-popular-misconception.html>;
*It is a misfortune for the legal system and wider society that today a federal judge’s meeting such aspirational expectations must be reported at all, and when reported, it is noteworthy because it is a fortunate, and somewhat, unexpected result.
