Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, Blumenthal v. Trump, No. 19-5237 (D.C. Cir. Oct. 8, 2019)

Abstract

On June 14, 2017, 30 Senators and 171 members of the House of Representatives filed a lawsuit in the United States District Court for the District of Columbia against Donald J. Trump, in his official capacity as President of the United States of America. The complaint alleged that the President had violated both the Domestic Emolument Clause and the Foreign Emolument Clause of the Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. and many other businesses that receive payments from domestic and foreign governments. On September 15, 2017, the President filed a Motion to Dismiss, arguing that when the Constitution was ratified the term “emolument” had two distinct meanings – a “narrow” sense limited to “profit arising from an office or employ” and a “broad” sense meaning “benefit, advantage or profit” – and that emolument in the Constitution only referred to the narrow meaning. On April 30, 2019, the district court denied the President’s motion, concluding that the meaning of emolument is “sweeping and unqualified” and includes “any profit, gain or advantage.” Blumenthal v. Trump, 373 F.Supp.3d 191, 207, 212 (D.D.C. 2019). On August 21, 2019, the district court certified its decision for immediate appeal. The appeal is currently set for argument in the D.C. Court of Appeals on December 9, 2019. On October 8, 2019, professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in the D.C. Court of Appeals, reporting the results of the research described in their forthcoming law review article, Using Empirical Data to Investigate the Original Meaning of ‘Emolument’ in the Constitution, 36 Georgia State Law Review (January 2020), available at SSRN: https://ssrn.com/abstract=3460735. Cunningham and Egbert applied the tools of linguistic analysis to newly available “big data” collections encompassing written language in common usage in the Founding Era to investigate the original public meaning of “emolument” at the time the Constitution was ratified. This data is accessible on the public website of the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. Cunningham and Egbert posed the research question: “Is there evidence that Americans in the Founding Era could have used the word “emolument” to describe revenue derived from ownership of a hotel?” They accessed every text in COFEA in which emolument appeared – over 2800 examples of actual usage – and analyzed all of these texts using three different computerized search methods. Their research results produced several different findings, each of which provided evidence that Founding Era Americans could have used “emolument” to describe revenue derived from ownership of a hotel. Using the word in such a way would have been consistent with what they discovered to be the broad meaning and wide usage of emolument. Further, their research revealed actual examples where “emolument” was specifically used to refer to revenue from ownership interest in a business. When they embarked on this research project, Cunningham and Egbert had no expectation that the results would favor any particular party to this case. Their amicus brief takes no position as to the affirmance or reversal of the District Court’s decision denying Petitioner’s Motion to Dismiss, noting that original public meaning may be only one of many factors taken into account when applying a constitutional text to a current issue. Egbert is a professor of applied linguistics who has authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994), Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm', 73 Washington University Law Quarterly 1159 (1995), and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).