//  6/2/17  //  In-Depth Analysis

By Professor Jed Shugerman (cross-posted from Shugerblog)

Recently, I posted an update on John Mikhail’s remarkable findings on Blackstone’s broad use of the word “emoluments” to apply to private transactions and benefits, much broader than the Trump lawyers’ narrow interpretation. Soon after, a few scholars returned to the argument, “But George Washington did it!”

Tillman observes, “The emoluments-are-any-pecuniary-advantage position [i.e., the CREW position] amounts to: (1) President Washington was at best grossly negligent, if not crooked; (2) Washington’s allies openly supported obvious and profound constitutional lawlessness; and (3) Washington’s political opponents were altogether and unaccountably silent—silent in Congress, silent in newspapers, and silent even in their private correspondence. The emoluments-are-any-pecuniary-advantage position amounts to a naked assertion by twenty-first century legal academics that they understand the Constitution’s binding legal meaning better than those who drafted it, ratified it, and put it into effect during the Washington administration.”

First, I don’t think one needs to conclude that Washington was “crooked” if one concludes he crossed the line in this case. The Emoluments clause functions as a prophylactic rule, a bright line barrier to prevent more egregious corruption, a “fence around the law.” He violated the Constitution, but that is not at all the same as saying he is a criminal. The Emoluments Clause is not an anti-bribery clause, and it has no criminal sanctions. We have overlooked this rule for many years, and Washington perhaps overlooked it then (if we are being generous). Is it so hard to imagine a venerable hero, a Founding Father, negligent in parts of his life, even abusing his power?  Broadway seems to be making us more comfortable with recognizing both their heroism and their flaws. Why not call it gross negligence? If we knew more about the deal and the land’s market value, we might be able to say more than that.

* * * * *

I add Ron Fein’s April Twitter thread here, edited for readability:

  • What wd have happened if he’d asked his AG, Edmund Jennings Randolph, Mr. “If discovered, he may be impeached” on foreign emoluments? Would Edmund Jennings Randolph have given him the same advice  or  might have? We can’t know, of course. But we certainly can’t rely on a view of “If Pres.Washington does it, that means that it is not illegal.” Kontorovich does not make last arg, to be clear.) But GW-deference shd be very low for secret ltr in which he confesses unease. To use an analogy from administrative law, this example would not come remotely close to Skidmore deference, let alone Chevron.

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