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EMOLUMENTS THREAD. Some thoughts on Tuesday’s hearing in the CA4, which I did not attend but listened to after the fact. The upshot is that while the hearing did not go very well for DC/MD, many of the concerns raised by the court are not decisive and can be easily addressed. 1/
Much of the conversation focused on what injunctive relief the plaintiffs seek. In my view, the best answer does not involve divestment or a blind trust, which are alternately extreme or inadequate for the reasons highlighted by the court. 2/
Instead, the best answer is a narrowly tailored injunction ordering the Trump Hotel in Washington, DC, to stop accepting payments from foreign governments. 3/
The Trump Organization says it is already keeping track of these payments in order to donate the profits from them to the US Treasury. So, in addition being directly tied to the alleged constitutional violation at issue, this relief would be both practical & administrable. 4/
Judge Shedd questioned whether the hotel could comply with such an order without violating anti-discrimination laws. That question is easily answered, however, and poses no substantial difficulty. 5/
The supposed “discrimination” arising from treating emoluments from foreign governments differently than other receipts is *required* by the Constitution. Any statutes which conflict with this requirement must give way under the Supremacy Clause. 6/
Per Judge Shedd’s question, there also would be no credible basis for excluding “all foreigners” from the Trump Hotel in the first place in order to comply with an injunction to stop violating the Constitution. 7/
Several Judges asked whether a broad definition of “emolument” would imply that profits from US Treasuries would violate the Domestic Emoluments Clause. In my judgment, DC/MD gave the right answer to this question, but supplied the wrong reason. 8/
Profits from US Treasuries do not violate the DEC because, unlike the FEC, the DEC is probably best construed to refer to emoluments received by the President *for his services* as President. 9/
The DEC reads: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, …. 10/
…. and he shall not receive within that Period any other Emolument from the United States, or any of them.” 11/
The last part of the clause can be read to include a silent repetition of the phrase “for his services” after the word “receive” - like this: “and he shall not receive [for his services] within that Period any other Emolument from the United States, or any of them.” 12/
On this natural reading of the DEC, many of the examples that are often thought to be the most difficult cases for the plaintiffs to explain—including profits from US Treasuries—are not difficult at all. 13/
State pension benefits (Ronald Reagan), naval retirement benefits (JFK), and land purchases from the US government at a public auction (George Washington) also fall into this unproblematic class of cases. 14/
Whether or not one adopts a broad definition of the term “emoluments,” none of these benefits was received by the President *for his services* as President. Thus, they are not covered by the DEC. 15/
The President’s most important new argument is jurisdictional. He now claims DC/MD have no cause of action under the Constitution, nor any such authority granted by Congress. 16/
This argument seems questionable on historical grounds, especially in light of the early practice of the Supreme Court, which recognized jurisdiction in cases such as Oswald v. New York, Chisholm v. Georgia, Hollingsworth v. Virginia, and Georgia v. Brailsford. 17/
If the President is correct that the Constitution provides neither a cause of action nor jurisdiction, then cases like these presumably should have been dismissed on that basis. That did not happen. 18/
Many important Founders were among the lawyers and judges who participated in these cases, including two men—Edmund Randolph & James Wilson—who actually *drafted* the jurisdictional grants of Article III. 19/
Is it President Trump’s position that these Founders did not understand the Article III jurisdiction of US courts? Does he think States can be sued in equity, but cannot bring suit in turn? 20/
Article III states: “The judicial Power shall extend to *all* Cases, in Law and Equity, arising under this Constitution…[and] to Controversies…between a State and Citizens of another State.” What rule of law prevents MD/DC from suing Donald J. Trump on this basis? 21/
The CA4 should have asked the President these and other questions that go to the heart of his extravagant assertions about jurisdiction & presidential immunity. Instead, they tossed his lawyers one softball after another. 22/
My last point concerns the text of the FEC, which Judge Niemeyer read aloud at the start of the hearing. Notably, and perhaps tellingly, Judge Niemeyer misquoted the FEC, omitting what for purposes of this lawsuit are its four most important words: “of any kind whatever” 23/
The FEC is virtually unique among constitutional clauses b/c it uses the word “any” 4 times. It says: Without Congress’s consent, no one holding *any* office of profit or trust under the US shall accept *any* emolument “of *any* kind whatever” from *any* foreign government. 24/
The broad sweep of this clause is unmistakable. It reflects the Framers’ deliberate decision to draw a bright line around both the reality and the appearance of corruption, conflicts of interest & undue foreign influence, which only Congress is authorized to modify. 25/
In light of the historical evidence of how “emolument” was actually used at the founding, the ban on accepting “any…emolument…of any kind whatever” makes any serious “original public meaning” defense of the President's interpretation of the FEC exceedingly difficult. 26/
Yet President Trump - who has made appointing originalist judges a centerpiece of his administration – was not asked any hard questions about the original meaning of “emolument,” either. This kid gloves treatment contrasts sharply with how CA4 treated the lawyers for MD/DC. 27/
All told then, Tuesday’s hearing was not a good showing by the CA4 of its willingness to take seriously the text, structure, and history of the Constitution and to carefully consider the President’s conduct on that basis. 28/
Instead, it was yet another illustration of the "cafeteria originalism" which often seems to guide certain lawyers & judges, who embrace originalism, dictionaries, and the like whenever it suits them, but who seem indifferent to the original Constitution on other occasions. 29/
