A Response to Professor Jack Rakove

 

Editors(@)WashingtonMonthly.com

 

Re: Jack Rakove, ‘It’s Not Just a Constitutional Crisis in the Trump Era. It’s Constitutional Failure,’ Washington Monthly (June 27, 2025), <https://tinyurl.com/33er4nf7>.

Professor Rakove wrote:

The Court thus casually squandered an opportunity to clarify the meaning of a provision that badly needs enforcement. All previous presidents had scrupulously adhered to the Emoluments Clauses, which embody the fundamental principle that presidents should neither seek nor hold office for private gain.

Two other cases [involving the Foreign and Domestic Emoluments Clauses], however, progressed in the lower courts, but once they were appealed, the Supreme Court slow-walked them until Trump left office, leaving the issue moot.

These claims are not correct, and Rakove puts not a shred of evidence forward supporting his positions.

The facts are these. The parties on both sides of the two cases before the U.S. Supreme Court represented to the Court that the cases were moot. In these circumstances, where the parties no longer had a live, continuing dispute, the Court had no real choice but to dismiss the case. The effect of that, under settled doctrine, was to vacate the lower court decisions which had adjudicated the meanings of the Emoluments Clauses. As a result, there are no binding federal circuit court precedents or persuasive district court precedents expounding on the scope of the Emoluments Clauses’ less-than-entirely-clear language. In fact, the situation was considerably more complex than plaintiffs’ Supreme Court filings let on. Plaintiffs’ official-capacity claim against Trump (qua the President) was moot once Biden became President. But plaintiffs’ individual-capacity claim against Trump (qua the individual) remained actionable. Plaintiffs chose not to pursue their individual-capacity claim. Why they did this only they know.

Moreover, 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. There were three such lawsuits. The first case, CREW v. Trump (filed in the United States District Court for the Southern District of New York), was filed timely: it was brought during January 2017, at the beginning of Trump’s first term. But the Blumenthal v. Trump complaint (filed in the United States District Court for the District of Columbia) was lodged considerably later: during June 2017, not January 2017. Likewise, the DC & MD v. Trump complaint (filed in the United States District Court for the District of Maryland) was also lodged during June 2017. There were other causes of delay. Plaintiffs filed multiple amended complaints in each case. And plaintiffs repeatedly sought extensions in regard to the timing of their briefs.

Defendant Trump-the-President (i.e., the official-capacity defendant) and Defendant Trump-the-Individual (i.e., the individual-capacity defendant) only sought one extension in one of the three cases on one occasion—a single extension which was only prompted by plaintiffs’ having first sought an amended schedule seeking an extension for plaintiffs. Had the plaintiffs adhered to the original schedule, the defendants would not have sought any extension.

Similarly, plaintiffs, when seeking to appeal, were also dilatory. Rather than seeking to appeal and seeking certiorari soon after an unfavourable final judgment, plaintiffs took the full (or nearly the full) time period in which to file: their appeals to the federal circuit courts of appeals and their certiorari petitions for discretionary U.S. Supreme Court review.

As for the lower courts, Judge Sullivan (District of Columbia) and Judge Messitte (District of Maryland) 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. Notwithstanding his unwillingness to address Trump’s motion, Messitte nevertheless ordered Trump to submit to discovery. Odd.

The delay, such as there was, was not caused by the Supreme Court and it was not caused by Trump and his lawyers. The simple fact is that: Plaintiffs ran out the clock. It is likely that they had strategic reasons for doing so. Perhaps they thought that the U.S. Supreme Court would be an unfriendly forum, and they sought to end the lawsuits before losing on the merits? It was plaintiffs’ tactical decisions which left the U.S. Supreme Court with no opportunity and no time to act on these appeals. And again: the plaintiffs chose not to actively pursue the individual-capacity claim against Trump. Why? If there is blame here, look first to the plaintiffs and their (lawyers’) strategic choices. Then look to the lower courts. There was one exception: Judge Daniels (Southern District of New York) worked impartially, promptly, and professionally in every sense. A true role model.

Professor Rakove’s blaming on the Supreme Court today’s lack of controlling and persuasive precedent regarding the meaning of the Constitution’s Foreign Emoluments and Domestic Emoluments Clauses is, at best, mistaken, and at worst, Orwellian. And let’s not forget that part (albeit, a small part) of the delay was engineered by Professor Rakove and his co-amici filing a brief and then subsequently filing a retraction because their factual claims were not defensible. See Letter from Counsel for the Legal Historians to Judge George B. Daniels, CREW v. Trump, Civ. A. No. 1:17-cv-00458-GBD (S.D.N.Y. Oct. 3, 2017), ECF No. 96, <https://tinyurl.com/ybd783uf>. 

Finally, Professor Rakove wrote that “All previous presidents had scrupulously adhered to the Emoluments Clauses.” Really? President George Washington received, accepted, and kept several diplomatic and state gifts from the French ambassador to the United States and from a second French government official. Washington never asked for and he never received consent from Congress. Likewise, President Washington purchased land at auction from the federal government in the new federal capital. All this is well known today, as it was well known in the 1790s. There is no record of any of Washington’s contemporaries—in Congress, in the press, or in private correspondence—including among those in the Anti-Administration congressional faction—suggesting any impropriety, much less a constitutional violation. There is no record of any biographers, public intellectuals, or academics then or since suggesting Washington’s conduct violated either Emoluments Clause. No record until Trump. And then the past had to be written. Why Rakove would be willing to participate in such a “history project,” only he knows. The rest of us can only guess. 

Seth

PS: Just to be clear: I participated (along with co-amici) in the three Emoluments Clauses cases.

Seth Barrett Tillman, ‘A Response to Professor Jack Rakove,’ New Reform Club (July 16, 2025, 1:42 AM), <https://reformclub.blogspot.com/2025/07/a-response-to-professor-jack-rakove_16.html>;