//  7/12/17  //  In-Depth Analysis

Last week, Brianne Gorod wrote an important post on this site about the Foreign Emoluments Clause (FEC).  Her post led Josh Blackman, who represents Professor Seth Barrett Tillman as an amicus supporting President Trump in the SDNY emoluments case, to write a series of critical tweets

Here, I’d like to offer two short reactions.  First, the criticism of Brianne’s post is not only ill-founded, but harmful to its own cause.  And second, the most important point—which should not be obscured by dust kicked up in a few tweets—is that Brianne has landed a forceful blow against the main historical evidence for the Blackman/Tillman position. 

The architecture of Twitter tends to favor those who quickly reply to thoughtful analyses with a barrage of sneers and snark.  Too often, a few superficially responsive tweets—laced with a dose of hyperbole—create the false impression that an argument has been “destroyed.”  Similarly, dashing out a few quotable tweets can distract from what really matters and create side debates over ultimately trivial questions. This should not be one of those times.  Brianne’s analysis is convincing, both in its criticism of Tillman and, more important, on the merits of its historical claim about the Foreign Emoluments Clause.

Quick Background

Nearly everyone, including legal scholars and President Trump’s own lawyers, thinks the FEC applies to the President.  The evidence for that position is overwhelming, and the Clause expressly covers all persons “holding any Office of Profit or Trust” under the United States.  But Professor Tillman, a lecturer on law at Maynooth University in Ireland, has long been an outlier.  And as Brianne explained in her post,

Although Tillman makes more than one argument in this fight, he has often leaned heavily on one particular piece of evidence: a list of “persons holding office under the United States and their salaries” put together by Treasury Secretary Alexander Hamilton that, he says, “did not include any elected officials in any branch.”  According to Tillman, this document demonstrates that “officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States.  Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.”

Tillman has made this argument in the New York Times and on the National Constitution Center website.  Others, in turn, have relied on his public claims, including writers at the Christian Science Monitor and, you guessed it, Josh Blackman.

But as Brianne points out, there’s a big problem:

The document Tillman cites is not the only record of Hamilton’s communication to the United States.  The document Tillman cites states, “The Secretary of the Treasury, in obedience to the order of the Senate of the 7th of May last, respectfully transmits herewith sundry statements of the Salaries fees and Emoluments for one Year ending the first of October 1792, of the Persons holding civil offices or employments under the united States (except the Judges) as far as Returns have been rendered . . . .”  The editors of Alexander Hamilton’s papers added a footnote explaining that there was, as Hamilton’s letter indicated, an enclosure—the actual list of officeholders and their respective compensation.  And as the footnote further explained, while “[t]his enclosure, consisting of ninety manuscript pages, has not been printed,” an “abbreviated version of it” is available in the American State Papers.

When one looks at the “abbreviated version” of the enclosure (available here at image 57), one name is right at the top: George Washington, President of the United States.  John Adams, as Vice President, appears right below his.

And then the document proceeds to list the officers in the various federal agencies, just as in the document that Tillman has been repeatedly referencing for months.  Whatever the exact relationship between these two documents, it seems stunning to point to one, without acknowledging the other.  Yet that’s exactly what Tillman has done.  Repeatedly.

As Brianne then elaborates, Tillman’s amicus brief in SDNY, unlike most of his recent writing, does acknowledge this issue.  It then twists itself in knots trying to explain why this document isn’t at all significant.  (You know that feeling where a lawyer is far enough out on a limb that you can almost hear the branch cracking beneath him?)

Blackman responded to all this by condemning Brianne’s post as “fatuous.”  “A bit of research,” he insisted, would have shown that Tillman has indeed referred to the additional Hamilton document.  How could Brianne have failed to consider Tillman’s full body of work?  Blackman added that Brianne’s “post falls for mistakes that Seth exposed years ago,” which, apparently, she (and Larry Tribe) will “learn another day.”

Two Quick Reactions

1.  Blackman’s response is unconvincing (and self-destructive)

Blackman’s main gripe is that Brianne fails to consider a few articles where Tillman did acknowledge the “abbreviated version.”  But there are three problems here. 

First, Tillman’s prior articles don’t do what Blackman says they do.  All three mention the “abbreviated version” only in footnotes.  Three of the four footnotes that mention it are only a single sentence or less, and lack any explanation or exposition.  At least two of the footnotes do not even acknowledge that there is a substantive difference—not to mention, one that may be critically important—between the two documents.[1]

The fourth footnote (from a 2012 paper) offers five whole sentences, which read more like a lawyer struggling to distinguish on-point precedent than like a historian making sense of the past. At bottom, it does little more than acknowledge a discrepancy between the documents, and then flatly dismiss the issue.  Indeed, without any citation at all, it claims that “Senate staff wrote an amended version,” even though the American State Papers document is not identified as the product of Senate staff; the listed author is none other than Alexander Hamilton himself.  If this is where Tillman has supposedly proven his major historical/constitutional claim … well, then his claim is awfully brittle.  

Second, even if they actually offered any meaningful analysis (which they don’t), all three texts that Blackman cites are low-profile academic articles, read by a small and specialized audience.  Writing in the New York Times, Tillman presented the Hamilton evidence as an unqualified knock-out blow to the view that the President must comply with the FEC.  He completely failed even to mention extraordinarily relevant evidence about the very document on which he based his claim.  It’s hardly an impressive defense to mislead so dramatically in the NYT but then say that it’s all okay, since a few years ago I had a footnote in a law review article alluding vaguely to this contrary material.

Finally, by emphasizing Tillman’s awareness of the “abbreviated version,” Blackman’s defensive tweets raise an important question: what are we to make of Tillman’s repeated and conspicuous decision, in his most prominent statements on a question of national importance, to characterize the historical record as he did?  To be sure, there’s always a fine balance to be struck between scholarly nuance and word limits, especially in op-eds and works of legal advocacy.  Many capable lawyers and legal scholars fail, at times, to reckon adequately with contrary precedents and primary sources.  That said, it does seem that Tillman should at least have noted or linked to analysis of this key point.

2.  The difference between actually responding to an argument and kicking up dust

As I’ve explained elsewhere, we’ve just begun a national struggle to thwart kleptocracy from overtaking the Executive Branch.  Litigation and public debates over the Foreign and Domestic Emoluments Clauses—and President Trump’s violations of them—are now matters of surpassing national significance.  In this context, we need clarity on whether the Constitution blocks the President from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” 

Brianne’s post is yet another entry in a long line of analyses that convincingly explain why the FEC applies to the President.  It’s a valuable contribution to the consensus position, which is supported by lawyers and historians from many different backgrounds.

Faced with this analysis, what does Blackman do?  He tweets and evades.  He complains about a failure to cite some non-explanatory law review footnotes.  He warns that these mistakes were “exposed years ago” (oh, really?).  He ominously threatens that we’ll “learn another day” why Brianne is wrong and his client is right.  

And you know what he doesn’t do?  Engage directly with the part of Brianne’ post that calls into question the description of key historical evidence in his SDNY amicus brief.

Recall that the President is violating the Emoluments Clauses in a manner that will cause (and has already caused) serious injury to the United States and its people.  We mustn’t let scattershot tweets obscure what really matters, especially when those tweets fail to offer a convincing argument on the merits of constitutional questions.

Follow Joshua on Twitter: @JoshuaMatz8

[1] One from 2012 refers readers to “the original Hamilton-authored document and its subsequent reproductions.”  Another from 2016 describes the American State Papers document as “nearly identical,” and then cross-references a different footnote that mentions its inclusion of the President in a parenthetical while discussing a different topic.

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