Motion and Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant, District of Columbia & Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Oct. 6, 2017) (Peter Jo Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 27-1,

Abstract

The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], 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.” Plaintiffs contend that because “Defendant Donald J. Trump is the President of the United States of America,” he “thus holds an ‘Office of Profit or Trust’ under the United States.” Their argument certainly has an intuitive appeal: How could the Presidency not qualify as an “Office of Profit or Trust under the United States” for purposes of this important anti-corruption provision? But an intuition is not an argument. Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar phrase “Office... under the United States” in other constitutional provisions, applies to the President. Rather, the text and history of the Constitution, and post-ratification practice during the Early Republic, strongly support the counter-intuitive view: the President does not hold an “Office... under the United States.” The Framers of the Constitution, making use of the progenitor British drafting convention of “Office under the Crown,” used the phrase “Office... under the United States” to refer to appointed officials in all three branches of government. That category did not include elected officials, such as the President and members of Congress. The weight of evidence, spanning from the colonial period to the American Revolution, and then through the Constitutional Convention and to the First Congress, and finally to the Washington Administration, and into the Early Republic, demonstrates that elected federal officials, such as the President, do not hold “an ‘Office of Profit or Trust’ under the United States.” Thus, the President is not subject to the Foreign Emoluments Clause. President Washington and his founding era successors during the Early Republic openly received, accepted, and kept diplomatic gifts and other gifts from foreign governments and their officials without seeking or receiving congressional consent. For example, President Washington received a diplomatic gift from the French ambassador to the United States; it was a framed full-length portrait of King Louis XVI. Likewise, President Jefferson received a bust of Czar Alexander I as a diplomatic gift. If Plaintiffs were correct, these presidents and others central to the founding of the United States of America openly committed impeachable offenses or were ignorant of the Constitution they helped draft and define. Washington’s practice, and that of his successors during the Early Republic, of accepting such gifts confirms that they understood that the President was not subject to the Foreign Emoluments Clause and its “Office... under the United States” language. The drafting practices of the First Congress and the writings of Alexander Hamilton lend further support to this position. For these reasons, Plaintiffs’ prayer for a declaration that the President “is a ‘Person holding any Office of Profit or Trust’ within the meaning of the Foreign Emoluments Clause” should be denied. President Trump’s business activities may raise ethical conflicts under modern good governance standards, but they raise no constitutional conflicts under the Foreign Emoluments Clause. The complaint: 2017 WL 2561946, filed June 14, 2017.