The Emoluments Clause does indeed apply to presidents

I love used to love me some Alan Smithee (make sure you click that link for the right one I removed the link because he blocked me after I challenged his command of facts one too many times for his taste) on Twitter. Sharp, smart, a demon for fighting dark and soft money in the political process. Hates neoliberalism. Doesn’t yet vote third-party, I think, and a bit harsher on Stein, and a bit more harsher on the Green Party as a whole, than I am.

But, those are minor quibbles.

A big error?

He’s simply wrong when he claims the Emoluments Clause doesn’t apply to the president.

Per Wiki, here’s the actual language, first of all.

No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.

Seems pretty clear to me. And to tens of thousands of constitutional law scholar lawyers and academics, and thousands of U.S. judges down through history.

Offices, of course, being normally executive offices, as constitutionally, the executive conducts foreign policy, and is most liable to being “emoled.”

But not to Smithee. He cites a Northwestern law prof. Seth Tillman, whoclaims that “office” in this case is only appointed offices.

Balderdash! And laughable in a great degree if not coming from him. It reads like a TrumpTrain claim. In fact, I stopped reading at that point, because I did start laughing!

Back to Wiki, and some background:

The prohibition against officers receiving a present or emolument is essentially an antibribery rule to prevent influence by a foreign power. At the Virginia Ratifying Convention, Edmund Randolph, a delegate to the Constitutional Convention, identified the Clause as a key "provision against the danger . . . of the president receiving emoluments from foreign powers." 

The Department of Justice Office of Legal Counsel has held

The language of the Emoluments Clause is both sweeping and unqualified. See 49 Comp. Gen. 819, 821 (1970) (the “drafters [of the Clause] intended the prohibition to have the broadest possible scope and applicability”). It prohibits those holding offices of profit or trust under the United States from accepting “any present, Emolument, Office, or Title, of any kind whatever” from “any . . . foreign State” unless Congress consents. U.S. Const, art. I, § 9, cl. 8 (emphasis added). . . . The decision whether to permit exceptions that qualify the Clause’s absolute prohibition or that temper any harshness it may cause is textually committed to Congress, which may give consent to the acceptance of offices or emoluments otherwise barred by the Clause.

The word "emolument" has a broad meaning. At the time of the Founding, it meant "profit," "benefit," or "advantage" of any kind. Because of the "sweeping and unqualified" nature of the constitutional prohibition, and in light of the more sophisticated understanding of conflicts of interest that developed after the Richard Nixon presidency, modern presidents have chosen to eliminate any risk of conflict of interest that may arise by choosing to vest their assets into a blind trust. As the Office of Legal Counsel has held, the Constitution is violated when the holder of an Office of Profit or Trust, like the President, receives money from a partnership or similar entity in which he has a stake, and the amount he receives is "a function of the amount paid to the [entity] by the foreign government."

Broad and sweeping. Indeed.

Next, the historical interpretation:

Foreign states often present the President of the United States with gifts. In order to comply with the Clause's prohibition on accepting presents from foreign governments, the President of the United States has traditionally sought permission from Congress to keep the present himself. Absent permission, the President will deposit the present with the Department of State. For example, Andrew Jackson sought permission from Congress to keep a gold medal presented by Simon Bolivar; Congress refused to grant consent, and so Jackson deposited the medal with the Department of State. Martin Van Buren and John Tyler received gifts from the Imam of Muscat, for which they received congressional authorization either to transfer them to the United States Government or to auction them with proceeds vesting to the United States Treasury. 

While President, George Washington received a present from the Marquis de Lafayette, who considered Washington to be his "adoptive father." and kept the gift without obtaining congressional consent. There is no indication in the historical record that Lafayette was presenting the gift on behalf of the French government. To the contrary, the letter that Lafayette sent to accompany the gift stated that it was "a tribute Which I owe as A Son to My Adoptive father." Because the gift did not come from a "foreign state," it did not violate the Clause. George Washington also took home to Mount Vernon a portrait of a then-guillotined French King that he had received from the then-monarchy while President.

I mean, even Andrew Jackson, who ignored the Supreme Court on Indian removal, followed the will of Congress. It’s clear that both Congresses and Presidents have historically understood it as applying above all to Presidents. Mother Jones, in a new piece about emoluments-based suits against Trump, notes that JFK turned down an honorary Irish citizenship over concerns.

The fact, per Prof. Tillman, that Hamilton gave members of Congress a list of “office holders” that included appointed officials only proves nothing. Later history, per Jackson, et al, shows that Presidents and Congresses alike didn’t think that held on the Emoluments Clause, if they even knew it existed. Plus, Hamilton, the man who once proposed a president for life, had every reason to be Cheney-like here.

In short, absent a specific judicial ruling — a specific Constitutional ruling that would ultimately come from the Supreme Court — to the contrary, we have what we might have Constitutional common law on this issue.

Smithee then goes on to cite that last-mentioned action of George Washington as proof for his interpretation.

Bullshit.

What happened is that Washington acted unconstitutionally, as Louis XVI held the throne at the time of the gift, which would legally be considered the controlling time. He then split hairs trying to justify his unconstitutional action and got away with it because Congressional Federalists weren’t about to call him out, and only the more radical Republicans (not yet Democratic-Republicans!) would have attacked “The Father of the Country.” Smithee himself once said, in essence, the only good presidents were dead presidents. Weird for him to cite this as a proof action.

Zephyr Teachout, to whom Tillman is responding, suggests the same as one possible interpretation.

And, not all of them are needed, as far as her different possible interpretations.

The only other one I’d entertain is that Washington claimed it was a “personal” gift. That, in turn, is a distinction the Emoluments Clause doesn’t recognize, in its clear language, therefore it’s really, ultimately, a subset of him acting — and deciding to act — unconstitutionally. *

Tillman then claims he’s refuted what I note about Jackson, Van Buren, etc., claiming that she hasn’t proven these are more “controlling” than Hamilton.

Actually, Tillman, my “constitutional common law” has proven exactly that. YOU are the one who’s proven nothing.

The Blount impeachment? Red herring by Tillman. Has nothing to do with the Emoluments Clause, therefore irrelevant to its definition of “office.”

I ignore their back and forth over state officials, as the constitution did not begin to be federalized until 1868, and that’s an incomplete process today.

I now, instead, break from Tillman and go back to history.

Modern history.

The US interaction with foreign powers increased after World War I and greatly after World War II.

Something else started then — presidential libraries.

Do you actually go to such a place as a library? NO! You visit it as a museum.

A museum where the president of library naming has donated all the tchotchkes he got while president, rather than handing them over to Congress at the end of his term.

The PRESIDENT can’t keep them, but the library can. And they know it.

Otherwise, presidential grifters would have Saudi swords and other shite hanging on the walls of their homes.

Finally, once more, unto what I said about “constitutional common law.”

Tillman doesn’t cite a judicial ruling supporting his interpretation. He can’t. Neither can Smithee.

This isn't a pissing match with him. But, given that he has a lot of followers, they need to know that — even though he tells them to check everything he posts — he's not always right. And, Tweeting it with a callout to him may help a few.

(I mean, I first blogged about this last November.)

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* If you're shocked by the idea that George Washington would act unconstitutionally, either wake up or grow up. Probably half our presidents violated the letter of the Constitution they swore to uphold at least once, and all have violated its spirit, I'll bet I can show.

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Update, Sept. 17: Derek Cressman has a good take on specific emoluments issues Trump faces.

Update, Dec. 4, 2018: Per Norm Eisen and a bunch of state AGs, we're about to find out just how wrong Flatty is, I think:

BREAKING: here are the actual subpoenas in the #emoluments case--lots of them! Fasten your seatbelts folks--the evidence is going to prove one of the most systematic constitutional ethics violations in US history: https://t.co/eBdPVhhbur and https://t.co/YyZ6y7Ctti #emoluments

— Norm Eisen (@NormEisen) December 4, 2018

I'll take Norm Eisen's legal brains over Flatty's at any time.

This also adds to my suspicion that Flatty, like ShirtLost DumbShit Zach Haller and H.A. Goodman, was some sort of "double agent" all along.