//  8/31/17  //  In-Depth Analysis

Cross-posted from Shugerblog

[UPDATE Sept. 19: Tillman has pointed out that even though the downloaded document is blank, if one scrolls down to the bottom of this page, there are links to seven images, and one of those documents is the ASP manuscript. I was expecting the downloadable document to include any sources, and I did not see that I needed to look further down the site for links. I sincerely apologize for the oversight. This site’s inclusion of an image of the original now raises more questions than answers. If Tillman had possession of the original manuscript around 2010 or 2011, why did he continue to cite only the ASP printed version thereafter, including in the amicus brief? He produced an image of the original document favorable to his position for his amicus brief, but he offered no mention of an original document of the unfavorable ASP letter. Why? Has he ever cited this original letter in print? I cannot find any citation of it, though it is highly relevant. Moreover, on the bottom of the BEPress.com page, he labeled this link "Hamilton according to the Secretary of the Senate," in contrast to his preferred document, labeled "Hamilton in his own words." Why? This labeling is unsupported by any explanation, and it is perplexing.]

The amicus brief filed on behalf of President Trump in CREW v. Trump (the first Emoluments suit) by Seth Barrett Tillman and Josh Blackman has some serious problems with how it represents its historical sources. The brief argues that the Foreign Emoluments Clause does not apply at all to the president, because the presidency is not “an office under the United States.” No court has ever adopted this interpretation, and their only historical document that supports their claim is one letter by Alexander Hamilton to the Senate in 1793 (because that letter did not include the President). However, it turns out that a second Hamilton letter to the Senate on the same day shows the opposite (because it included the President). Their amicus brief buries this second letter in a footnote and, in order to bury it even deeper, it makes incorrect factual claims about it (that it was undated, unsigned, and written by an unknown Senate functionary). This post examines this scholarship more closely to understand how these irregularities happened and to correct the record.

On July 6, Brianne Gorod raised important questions about how their brief treated these sources and how Tillman was less than forthcoming in prior work about the contrary evidence.  On July 17, Gautham Rao and I addressed more broadly substance of Tillman’s claims, after he and Blackman published an op-ed in the New York Times(It’s important to note that last November 2016, Tillman published an earlier New York Times op-ed asserting the same point relying heavily on his preferred Hamilton letter, but failing to mention the contrary Hamilton letter).

On Aug. 1st, Brianne Gorod posted an image of the second letter from the National Archives, explained that Tillman and Blackman’s brief misstated the facts about its most important document, and noted other irregularities, omissions, and mistakes in earlier publications. Our colleague Rebecca Brenner followed up with her own visit and took photos of every document in the archival box. We posted them online here on a website to offer to the public images of all of the contents of the archival box. Then we noted these concerns briefly in a footnote in our amicus brief, filed on Aug. 11th.

In the meantime, we had hoped for some kind of explanation or acknowledgement of these concerns in the two weeks that have passed. Instead, Professor Tillman continued to promote this argument without admitting error. Waiting in vain, I started seeking an explanation myself, reading Tillman’s work trying understand what was going on. I don’t have any answers, but only more questions.

I am going to try to go very carefully through Tillman’s publications in which he offers this “office under” argument and where he cites the Hamilton letters. Far too often, he cites only his preferred letter that fits his thesis, with no acknowledgement of the second letter that undercuts his thesis. Even more troubling, when he cites that second letter, he has either avoided acknowledging that it contradicts his argument, or later, he mischaracterizes the letter to delegitimize it without factual support. And perhaps most oddly, he eventually produced an image from the archives of the original letter that supported his thesis, but instead of producing an image of the other letter, he continued to cite only its printed reproduction and continued to rely on that reproduction, which enabled him to continue mischaracterize it… even though the two published sources told readers where to find the original manuscript in the same archives.

Before I dig into these details (and I’m sorry, this post is surely too detailed in the weeds of footnotes), I want to acknowledge that Josh Blackman lives in Houston. I send my best wishes to him and everyone else in Houston for health, safety, and recovery. I certainly don’t expect him to reply to any of these questions directed mainly towards his co-author Tillman and Tillman’s  primary research.

First, here is a link to Tillman and Blackman’s brief on behalf of Trump.  On p. 19, the amicus brief provides an image of one Hamilton letter (which we’ll call the “Tillman letter”) and offers this description:

Alexander Hamilton sheds more light on the scope of the Foreign Emoluments Clause. In 1792, the Senate directed President Washington’s Secretary of the Treasury, Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States.” The Foreign Emoluments Clause’s language is limited to offices of profit or trust under the United States. The broader language used in the Senate order, however, includes all offices under the United States, without the “of profit or trust” limitation. Hamilton took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. In it, he included appointed or administrative personnel in each of the three branches of the federal government, including the Legislative Branch (e.g., the Secretary of the Senate and Clerk of the House). But Hamilton did not include the President, Vice President, Senators, or Representatives. In other words, Hamilton did not include any elected positions in any branch. Like Washington’s acceptance of Ternant’s gift of the framed portrait of Louis XVI, the Hamilton document is another probative Executive Branch construction of the Constitution’s office under the United States-language, which was established during Washington’s first term (and so contemporaneous with the ratification of the Constitution). This official and meticulous correspondence is not consistent with Plaintiffs’ claim that the Foreign Emoluments Clause’s “office . . . under the United States” language encompasses the presidency.

Here is the brief’s footnote citing this letter:

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton-signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. There is no reason to favor a document of unknown provenance over the Hamilton-signed original which was, in fact, an official communication from the Executive Branch responding to a Senate order.

I have bolded (and underlined) the statements in the footnote that turn out to be untrue or are unfounded assertions.  Tillman uses the acronyms PAH and ASP. For clarity, I’ll call the first letter “Tillman/PAH” and the second letter “ASP.”  Tillman provided an image only of the first letter. You can see an image of the ASP’s letter here at image 12The ASP’s letter was in the same box as the Tillman/PAH letter, in the folder immediately next to the folder holding the Tillman/PAH preferred letter. This letter was in fact dated Feb. 26, 1793, and signed by Hamilton. It’s not entirely clear whether Hamilton drafted it, but there is no basis to suggest that it was drafted by an unknown Senate functionary. It was more likely drafted by Hamilton or a major Treasury official working directly under Hamilton before Hamilton signed it.

There is a second letter in the same folder with “the ASP letter” dated Feb. 27th, and written and signed by Hamilton.  (Here at image 9).  It appears that this letter, probably also drafted by Hamilton, accompanied the ASP letter.

My first thought was that Tillman started with and was relying upon the published Papers of Alexander Hamilton (Syrett and Cooke, eds.). I wondered if maybe Syrett and Cooke had a note about why they published one letter (omitting the President) rather than the other (including the President). Or perhaps Syrett and Cooke didn’t mention the ASP letter at all. So I checked. In fact, Syrett and Cooke note the existence of the ASP letter in a footnote.  They explain that they did not publish the enclosure of 90-page manuscript pages listing the salaries, but they then point to the ASP: “For an abbreviated version of it, see ASP, Miscellaneous I, 57-68.” Syrett and Cooke offered no reason to doubt the provenance of this abbreviated version, but only reason to see it as a legitimate source. Syrett and Cooke chose to publish the letter that accompanied the 90-page manuscript, rather than the abbreviated list, which is understandable.

But therein lies the explanation for why that first letter did not include the president and vice president, offered by Brianne Gorod and with which I agree:

“Those 90 pages reflected documents that the Treasury Department had received from different departments across the federal government.  Many contained a listing of every officer in their department—from the head of the department to the lowliest clerk.  One of the documents provided the compensation of every lighthouse keeper in the country.”

The “Tillman/PAH” letter is the summary of those 90 pages of reports. There was no outside report on the salary of the President or Vice President, because none was necessary. But that 90-page document was more than Congress needed, and so Hamilton put together an abbreviated version, a list only of the relevant salaries, rather than a list summarizing the many documents. Because the President’s and Vice President’s salaries were relevant but not documented separately, they show up on Hamilton’s cover letter for the abbreviated version (the ASP letter), not the cover letter for the long summary of separate documents (the Tillman/PAH letter). The abbreviated list was a shorter document, but it was actually a more complete list.

Once I saw that the Syrett and Cooke volume noted the existence and location of the ASP document in the National Archives, and gave reason to treat the ASP as a legitimate document, I then tried to figure out whether Tillman offered any other reasons for dismissing it and overlooking it. After all, he had gone to the trouble to provide a digital photograph in his brief of his preferred Hamilton letter (the Tillman/PAH letter).

My next step was to see how Tillman cited these letters in the past. His treatment of these two letters is inconsistent, but he never describes the ASP letter accurately or justifies why it is less legitimate a Hamilton source.  I will proceed step by step through his publications on this topic:

1.  As far as I can tell, Tillman first published the argument that the President is not an “office under the U.S.” in 2008. In a debate with Steven Calabresi, Tillman relies on other arguments, but mentions neither Hamilton letter. (“The Great Divorce,” 157 U. Pa. L. Rev. PENNumbra 134 (2008)). Calabresi replies, “Seth Barrett Tillman has made an ingenious argument for an utterly implausible proposition. He claims that Presidents of the United States can serve simultaneously in Congress as senators or representatives.” Id. at 142. Calabresi concludes that Tillman’s argument is inconsistent with plain meaning, original public meaning, and with centuries of history.

2. In 2009, Tillman returned to the same argument, but still had not yet cited either of the Hamilton letters. (“Why Our Next Preisdent May Keep His or Her Senate Seat: A Conjecture on the Constitution’s Incompatibility Clause,” 94 Duke J. Const. L. & Pub. Pol’y 107 (2009)).

3. In April 2012, he cited the Hamilton letter for the first time in a Northwestern Law Review Colloquy. He cited Syrett and Cooke’s PAH as the source, but did not mention the ASP letter at all. (“Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle,” 107 Nw. U. L. Rev. Colloquy 1 at 14 (2012).

4. In a conference paper posted in 2012 and presented in 2013, Tillman again cites only the Syrett and Cooke papers and does not mention the ASP letter. Tillman does add to the footnote: “For the reader who would like to explore the original Hamilton-authored document and its subsequent reproductions, see Seth Barrett Tillman, Hamilton, the Secretary of the Senate, and Jefferson (2011), https://works.bepress.com/seth_barrett_tillman/203/.”

I have checked this link a few times in August, and it is only a cover page, the title, and a blank page that simply says “[Text starts here].”  There are no documents or reproductions on this site.

5. In another 2012 draft posted on SSRN, called “Either/Or” or “Contradictions,” Tillman cited both Syrett and Cooke’s letter and the ASP letter, but note that when Tillman describes the ASP letter, he claims that Senate staffers, not Hamilton, wrote it, and they added the President and Vice President, without support for this claim. He claims that it may have been produced “a generation later,” when the ASP print provides the same date, Feb. 26, 1793, and gives no reason to doubt that it was written then. It is a claim manufactured out of thin air:

Footnote 117: Hamilton’s ninety page return was unwieldy. Unnamed and unknown Senate staff wrote an amended version. They added in line entries for the President and Vice President, but not for members of Congress. This amended version also left in the line entries for congressional staff. It is unclear when the Senate produced this document. It may have been produced contemporaneously with Hamilton’s reply or it may have been produced a generation later for incorporation in American State Papers. See Alexander Hamilton, List of Civil Officers of the United States, except Judges, with their Emoluments,for the Year Ending October 1, 1792 (Feb. 26, 1793), in MISC. VOL. 1 AMERICAN STATE PAPERS, supra note 45, at 57-68 (Class X, Doc.No. 34).

So when Tillman first cited the ASP letter, he mischaracterized it and made unfounded claims about it.

6. Later, in another round in his debate with Teachout in a 2013 Northwestern colloquy, Tillman simply cited the earlier 2012 Northwestern colloquy, with no cites directly to any of these documents. “Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout,” 107 Nw. U. L. Rev. Colloquy 180, 187 n.15 (2013).

7. In a different 2013 piece, he offers the same general interpretation about “office under the U.S.,” but with no reference to any of the Hamilton letters. “Interpreting Precise Constitutional Text,” 61 Clev St. L. Rev. 285 (2013).  So both Hamilton letters had suddenly disappeared from Tillman’s thesis. 

8. Then in 2014, he brought back only his Tillman/PAH letter to his thesis, but did not mention the ASP letter. “Originalism and the Scope of the Constitution’s Disqualification Clause,” 33 Quinnipiac L. Rev. 59, 81 n.63

9. In 2016, in “Who Can Be President of the United States,” 5 Br. J. Am. Leg. Studies 106 n.25, Tillman returned to citing the ASP document, but for a completely different purpose (only to list the salaries of various offices), with no acknowledgement that this document creates a basic problem for his argument later:

Footnote 25: See Alexander Hamilton, List of Civil Officers of the United States, Except Judges, with their Emoluments, for the Year Ending October 1, 1792 (Feb. 26, 1793), in 1 American State Papers: Miscellaneous 57, 57–68 (Walter Lowrie & Walter S. Franklin eds., Washington, Gales and Seaton 1834) (listing compensation of government officials, including the President, who made $25,000 per year, and Morris and Pinckney, who each made $9,000 per year, and also received $9,000 for “outfit”), http://tinyurl.com/z6h9u23. (A reproduction of Hamilton’s original document appears in The Papers of Alexander Hamilton. See infra note 33.) 

Two pages later, Tillman returned to the argument from his preferred Hamilton letter, citing the Syrett/Cooke source, and then mischaracterizes the ASP print again, calling it “nearly identical,” not mentioning the fact that it was not identical in the most important way: it lists the President and Vice President! But he hid that obviously crucial difference – the fact that contradicts his thesis and his evidence — from the reader:

Footnote 33: See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton: February 1793–June 1793, at 157, 157–59 (Harold C. Syrett & Jacob E. Cooke eds., 1969), http://works.bepress.com/seth_barrett_tillman/203/3/download; supra note 25 (reporting a nearly identical document in AmericanState Papers). [Citation to the Senate request document from 1792]. It should go without saying that Hamilton’s list encompassed no (appointed or elected) state positions.

First, that link is the same one that turns out to be blank. But then here’s the whopper: “It should go without saying”?  It’s ironic, because Tillman also goes without saying that the inconvenient source he hides in his “supra note 25” actually lists the President and Vice President.

In the meantime, Tillman has offered these arguments to the general public, on the Constitution Center website, and (as noted above) twice in the New York Times, only mentioning his preferred Hamilton letter from the PAH, and never acknowledging the other Hamilton (from the ASP) that contradicts his conclusion. These three public pieces were misleading, and that’s putting it generously.  

Then this summer, their amicus brief repeated all these same factual errors and mischaracterizations about the ASP letter: that it wasn’t signed or dated, and that it was drafted by a Senate functionary.  As Brianne Gorod noted, these descriptions have no basis in the printed sources, even if one hadn’t seen the original manuscript. Again, the American State Papers include the date (Feb. 26, 1793) and indicate that it was signed by Hamilton. Nothing in the Syrett and Cooke’s PAH raises any doubts about its authenticity.

First, Tillman has some questions to answer about these repeated irregularities. Whether by omission or commission, his treatment of the Hamilton letters has been misleading in each of his publications or posted papers on this topic since 2012.

Second, Tillman has some questions to answer about why he decided to post an image from the archives only of his preferred PAH letter in his amicus brief, but not an image of the ASP’s letter in the same box, one file folder away, that contradicted his broader argument and contradicted his assertions about that particular document. Again, both Syrett and Cooke and the American State Papers told him where to find it. Rather than make unfounded assertions about that document, why not find it, especially if you’re already examining the same box?  Tillman cited both Syrett and the ASP in 2012, so he has known where to find it for five years.

We all make mistakes, of course.  Every historian has overlooked an important document, even when other historians told us where to find it. Every historian has erred in describing or quoting a document. Every historian has faced tough choices about when to travel to an archive to check a source and when to rely on printed volumes, and how to interpret those editors’ choices. I have made such mistakes — some I found out soon after, and some I haven’t yet discovered.  For example, in the amicus brief, we referred to one Syrett/Cooke letter from Hamilton as the “1792 letter,” because we used an initial shorthand for the two letters, but that shorthand was confusing. Both letters were written in 1793, and in the future, we will refer to it differently, perhaps as the “condensed Hamilton letter” or “ASP letter.”

Perhaps Tillman had inferred that Syrett and Cooke included one letter and not the other because they thought it was more reliable. Perhaps he had some reason to doubt the American State Papers, although I haven’t heard any basis for those doubts. Perhaps there is a good explanation for how someone missed the second letter while looking for the first.  The question isn’t about blame for mistakes. The question is what we as historian do after we have discovered our mistakes.  

The troubling aspect of the past few weeks is that, after Brianne Gorod, Gautham Rao, and I raised a list of concerns and then posted images of the original documents and all of the box’s contents, Tillman has continued to promote the same argument. In fact, on August 24, he has just posted a preview for a conference presentation in September on the same argument, and for it, he posted his amicus brief. The abstract of his talk dismisses the opposing side as liberals who are only fitting the Emoluments clause into their preconceived assumptions. He hasn’t acknowledged that he has selectively interpreted one source — and mischaracterized or ignored a contrary source — in order to force it to fit his own idiosyncratic assumption. Moreover, it’s proudly his “pinned tweet,” as of Aug. 31st Instead of addressing the mounting questions about his research, he marches forth his erroneous and uncorrected brief.

One might expect that when a brief before a court contains significant factual errors or misleading interpretations of evidence, the authors of that brief will offer to correct their briefs or retract the sections if they are no longer supported by the evidence. Fortunately, Professor Tillman still has ample time to address these questions and correct the record.  As the Emoluments cases progress, I look forward to continuing to engage with his legal and historical arguments. However, it is vital that we all describe our historical sources clearly, accurately, and openly, and that we are careful to make sure our arguments are fairly supported by the historical evidence.

Versus Trump: So, Can California Really Do That?

10/5/17  //  Commentary

On this week’s episode of Versus Trump, Charlie and Jason discuss a recently-passed bill awaiting the signature of California Governor Jerry Brown that, if signed into law, would require presidential candidates to disclose five years of federal of tax returns in order to appear on the ballot in California. Jason and Charlie ask each other whether California has the constitutional power to do that, and, if so, whether it's a good idea. Listen now!

Charlie Gerstein

Civil Rights Corps

DOJ's Unconvincing New Definition of 'Emolument'

9/23/17  //  In-Depth Analysis

The President's reply brief in CREW v. Trump offers a new (and flawed) definition of 'emoluments'

Marty Lederman

Georgetown Law

Conference on 'Populist Plutocrats: Lessons from Around the World'

9/6/17  //  Latest Developments

On September 23, Harvard Law School will host a one-day conference about populist plutocrats, a label many apply to President Trump.

Take Care