By Jed Shugerman (cross-posted from Shugerblog)

I am crossposting John Mikhail’s breakthrough findings on the Emoluments Clause from Balkinization.

For background: The “foreign emoluments” clause of the Constitution states, “[N]o person holding any office of profit or trust under them, 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.” Art. I, Sec. 9, cl. 8. The “domestic emoluments” clause states: The President “shall not receive … any other Emolument from the United States, or any of them [any state].”  I have written before about how President Trump is receiving both foreign and state emoluments.  I am working with Mikhail, Jack Rakove, and Gautham Rao on an historians’ amicus brief on the legal meaning and context of the word “emoluments” in the eighteenth century.

Trump’s lawyers have argued in a white paper that the original public meaning of “emolument” was “payment or other benefit received as a consequence of discharging the duties of an office.”  They suggest a narrow reading excluding the payments to Trump’s businesses for market transactions. I have argued that such market transactions should be considered “office-related,” but Mikhail’s research shows that emoluments are not limited to “office related payments.”  In Blackstone’s Commentaries, the primary usage of the term included private benefits and advantages.

As most judges and legal scholars probably know, Blackstone was one of the most important legal sources for the Founding generation. Founding-era Americans cited Blackstone far more than any other English or American legal scholar.  Mikhail also adds a poignant reference to emoluments by the executor of Blackstone’s will, using “emoluments” in reference to the benefits from Blackstone’s estate.

I excerpt Mikhail’s post summarizing his findings:

“Blackstone does not support such a narrow reading [by Trump’s lawyers].  … The majority of Blackstone’s usages of “emolument” involve benefits other than government salaries or perquisites.  They also reflect the broader meaning of the term—“profit, “gain,” “benefit,” or “advantage”—one finds in the principal eighteenth-century English dictionaries.

For example, Blackstone uses “emolument” in the context of family inheritance, private employment, and private ownership of land.  He refers to “the power and emoluments” of monastic orders; to “the rents and emoluments of the estate” managed by ecclesiastical corporations; and to the “pecuniary emoluments” which the law of bankruptcy assigns to debtors.

Blackstone describes the advantages to third-party beneficiaries of a gift as “the emolument of third persons.”  He uses “emolument of the exchequer” to refer to an increase in the national treasury.  Finally, in explaining the law of corporations, he characterizes “parish churches, the freehold of the church, the churchyard, the parsonage house, the glebe, and the tithes of the parish” as among the “emoluments” vested in the church parson.

A further illustration of the fact that Blackstone understood emoluments to relate to private commercial transactions can be found in the forms of “Conveyance by Lease and Release” that appear at the end of Book II of the Commentaries.  In the first of these forms (“Lease, or Bargain and Sale, for a year”), Blackstone suggests the following language for conveying parcels of land:

THIS INDENTURE . . . witnesseth, that [A.B. and C.]. . . have bargained and sold . . . unto [D.E. and F.G.] . . . the capital messuage, called Dale Hall . . . and all those their lands . . . called or known by the name of Wilson’s Farm . . . together with all and singular houses, dove-houses, barns, buildings, stables, yards, gardens, orchards, lands, tenements, meadows, pastures, feedings, commons, woods, underwoods, ways, waters, watercourses, fishings, privileges, profits, easements, commodities, advantages, emoluments, hereditaments, and appurtenances whatsoever to the said capital messuage and farm . . .”

Blackstone uses the same language in his second form (“Deed of Release”).  Both forms can also be found in his Analysis of the Laws of England (1756), published ten years earlier.  Yet Blackstone probably did not create these forms on his own.  Many form books and other legal manuals of the period included similar templates.  In Giles Jacob’s Law Dictionary (1729), for instance, which included not only a dictionary of legal terms, but also writs, case reports, and deeds and conveyances, one finds a “Form of a Release and Conveyance of Lands” with almost identical language, in which “A.B.” conveys to “C.D.” a piece of property together with “all . . . Easements, Profits, Commodities, Advantages, Emoluments, and Hereditaments whatsoever.”

“When Americans bought and sold property during the founding era, they frequently referred to emoluments in their deeds and conveyances…

“Based upon the foregoing considerations, it seems clear that Blackstone did not understand “emolument” in the restricted fashion advocated by Trump’s lawyers.  Nor, it seems, did the founders themselves. The current deadline for the President to respond to the second amended complaint in CREW et al., v. Trump is June 9.  It remains to be seen what originalist or historical arguments, if any, the Department of Justice will make to Judge Ronnie Abrams, to whom the case is assigned.”

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