"There is always a philosophy for lack of courage."—Albert Camus

Friday, November 03, 2017

Blumenthal v. Trump: Some People Do Not Get That Plaintiffs Have the Burden of Proof and Persuasion





Professor Josh Blackman, on my behalf, filed an amicus brief in Blumenthal v. Trump; our brief supports the Defendant: President Trump. Yesterday, amici in support of Plaintiffs filed. There was no response from the “Legal Historians,” i.e., Professor Jack Rakove et al., directed towards my brief. 

However, a group of legal academics, stylized as “Separation of Powers Scholars,” did respond to my brief (in a lengthy footnote). They wrote:

Amicus for Defendant, Seth Barrett Tillman and the Judicial Education Project (“Defendant Amicus”) seek leave to file a brief arguing that the Foreign Emoluments Clause does not apply to the President. Defendants have not taken that position. And, regardless, Defendant Amicus’s arguments hold no water. In particular, Defendant Amicus presents a flawed analysis of the phrase “any Office . . . under the United States.” The Constitution does not limit the Foreign Emoluments Clause to “officers” or “civil officers”—phrases on which Defendant Amicus’s arguments are based. Rather, the Foreign Emoluments Clause applies broadly to any “person holding any Office of Profit or Trust.” Outside of the Foreign Emoluments Clause, this phrasing appears only two other times in the Constitution, both of which apply clearly to the President (i.e., the impeachment clause, U.S. Const. art. I, § 3, cl. 7, and the prohibition against appointing as an elector any “Senator or Representative, or Person[s] holding an Office of Trust or Profit under the United States”, U.S. Const. art. II, § 1, cl. 2). Defendant Amicus “cannot point to a single judicial decision [, contemporaneous document, or official government opinion] holding that . . . the Foreign Emoluments Clause . . . [does not] appl[y] to the President.” Compare Brief for Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at 2, 22.

Indeed the executive branch itself has understood the scope of the clause to be broader and far more encompassing than just “appointed” officials. See, e.g. Proposal That the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963) (holding that Foreign Emoluments clause applies to offer of honorary citizenship to President Kennedy); Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 156, 157-58 (1982) (determining that the Foreign Emoluments Clause would apply to an employee of the Nuclear Regulatory Commission, and holding that “[b]oth the language and the purpose of” the Foreign Emoluments Clause and the Appointments Clause “are significantly different” and that “[t]he problem of divided loyalties can arise at any level.”)[.][1]

The Separation of Powers Scholars have no response to:
            The Hamilton document.

They have no response to:
Gifts President George Washington received from LaFayette and from Ambassador Ternant.

They have no response to the other diplomatic gifts received by President Washington’s successors during the Early Republic, including:
Gifts President Thomas Jefferson received from Russian government officials and from foreign Indian nations.

They have no response to:
            The 1790 Anti-Bribery Act.

They have no response to:
The scholarly writings of Justice Joseph Story (1833)[2] and David McKnight (1878).[3]

The burden of proof and persuasion rests with Plaintiffs (and supporting amici) to show that the President is encompassed by the Foreign Emoluments Clause’s general office of profit or trust under the United States language. The burden is not on Defendant (and me) to show that the President is not so covered.

Right?

Seth

Seth Barrett Tillman, Blumenthal v. Trump: Some People Do Not Get That Plaintiffs Have the Burden of Proof and Persuasion, New Reform Club (Nov. 3, 2017, 3:49 AM), https://reformclub.blogspot.com/2017/11/blumenthal-v-trump-some-people-do-not.html.


[1] Brief of Separation of Powers Scholars as Amici Curiae in Support of Plaintiffs at 16 n.9, Senator Richard Blumenthal v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. Nov. 2, 2017) (Sullivan, J.) (filed by Professors Rebecca L. Brown, Harold H. Bruff, Neil Kinkopf, Christopher H. Schroeder, Peter M. Shane, Kevin M. Stack, and Peter L. Strauss) (emphasis added), Doc. No. 25-1. [here
[2] 2 Joseph Story, Commentaries on the Constitution § 791, at 25960 (Boston, Hilliard, Gray, and Co. 1833). Story’s language is cited favorably here: Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1372 n.10 (Fed. Cir. 2006) (Gajarsa, J., concurring in part and concurring in the en banc judgment) (quoting § 791 of Story’s Commentaries approvingly); Member of Congress, 17 U.S. Op. Att’y. Gen. 419 (1882) (Brewster, A.G.), 1882 WL 3932.  

[3] David A. McKnight, The Electoral System of the United States 346 (Fred B. Rothman reprint 1993) (1878) (“[I]t is obvious that . . . the President is not regarded as ‘an officer of, or under, the United States,’ but as one branch of ‘the Government.’”).
McKnight's book is over 100 years old, but it remains actively cited. See, e.g., Bruce Ackerman, The Failure of the Founding Fathers: Jefferson, Marshall, and the Rise of Presidential Democracy 313 n.32 (2005); Brian C. Kalt, Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies 210 n.8 (2012); Tadahisa Kuroda, The Origins of the Twelfth Amendment: The Electoral College in the Early Republic, 1787-1804, at 191 (1994); (Judge) Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts 153 n.3 (2001).

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