Brief of <i>Amici Curiae</i> Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, In Re: Trump, No. 18-2486 (4th Cir. Jan. 29, 2019)

Abstract

On June 12, 2017, District of Columbia and State of Maryland filed suit in United States District Court for District of Maryland against Donald J. Trump, in his official capacity as President of United States of America. The complaint alleged that President had violated both Emoluments Clause and Foreign Emoluments Clause of Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. On September 29, 2017, President filed a Motion to Dismiss, arguing that when Constitution was ratified term had two distinct meanings -- a sense limited to arising from an office or employ and a broad sense meaning benefit, advantage or profit -- and that emolument in Constitution only referred to narrow meaning. The district court denied President's motion, concluding that the term 'emolument' in both Clauses extends to any profit, gain, or advantage of more than de minimis value, received by [the President], directly or indirectly, from foreign, federal, or domestic governments. District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018). On December 20, 2918, Court of Appeals for 4th Circuit granted President's motion to stay district court proceedings, and ordered parties to address not only procedural issues regarding President's mandamus petition but also the underlying issue[] of whether two Emolument Clauses provide plaintiffs with a cause of action. The appeal is currently set for argument on March 19, 2019. On January 29, 2019, Professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in 4th Circuit, reporting results of research described in their paper Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and Emoluments Clauses, available at SSRN: https://ssrn.com/abstract=3321438. Cunningham and Egbert filed amicus brief to present a different, scientifically-grounded approach for researching original public meaning of emolument. They applied tools of linguistic analysis to newly available big collections encompassing written language in common usage at time of ratification. This data is accessible on public website of 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 accessed every text on COFEA in which emolument appeared -- over 2500 examples of actual usage -- and analyzed all of these texts using three different computerized search methods. They found no evidence that emolument had a distinct narrow meaning of arising from an office or employ. All three analyses indicated just opposite: emolument was consistently used and understood as a general and inclusive term. When they embarked on this research project, Cunningham and Egbert had no expectation that results would favor any particular party to this case. Their amicus brief takes no position on merits of President's Petition for Mandamus, and offers no view on affirmance or reversal of District Court's decision denying Petitioner's Motion to Dismiss, nothing 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 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 Wash. U. L.Q. 1159 (1995); and A Linguistic Analysis of Meanings of 'Search' in Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).