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Sunday, December 31, 2017

The Blue Book & the Foreign Emoluments Clause Cases Against the President: Old Questions Answered




     In 1792, the Senate directed President Washington’s Secretary of the Treasury, Alexander Hamilton, to draft a financial statement listing the “emoluments” of “every person holding any civil office or employment under the United States.”[1] Hamilton took more than nine months to draft and submit a response, which spanned some ninety manuscript-sized pages. The report 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 and their staffs) and the clerks of the federal courts.[2] But Hamilton’s carefully-worded response did not include the President, Vice President, Senators, or Representatives.[3] The presumptive meaning of this document is that Hamilton accurately responded to the Senate’s precise request: elected officials do not hold office . . . under the United States, and so they were not listed.
     Contrary explanations do not hold up. Two of the Legal Historians whose brief is before this Court, Gautham Rao and Jed Handelsman Shugerman, have contended that Hamilton’s list was designed to help avoid violations of the Constitution’s Sinecure Clause.[4] It provides, “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time.”[5] Under this clause, members of Congress cannot be appointed to offices (1) that were created during the term of Congress to which they were elected, or (2) whose “Emoluments” (i.e., salary) were increased during the term of Congress to which they were elected. Rao and Shugerman speculate that Hamilton’s 1793 list identified positions that fell into these categories, so the President could avoid unconstitutional appointments. According to Rao and Shugerman, Hamilton understood that the Senate inquiry had a limited, unstated purpose and as a result, his roll of officers hewed to that purpose, excluding the presidency, even though (in Rao & Shugerman’s view) the presidency was encompassed by the office under the United States language in the Senate order. It is not surprising that the Legal Historians do not advance this argument here, because it makes little sense.
     First, by the time the Senate made its request to Hamilton in 1792, there had already been two sets of congressional elections, and two classes of Senators had been elected. Yet, the Senate order and Hamilton’s 1793 roll of officers makes no attempt to distinguish between positions created during the Senate’s first two-year term and the Senate’s second two-year term. Without that information, Hamilton’s 1793 roll of officers would not have been useful in regard to helping elected officials avoid violating the Sinecure Clause. Second, the Sinecure Clause would prevent a Senator from being appointed to an Article III judgeship that was created during his elected term. Yet the Senate order specifically directed Hamilton to exclude all judges, and Hamilton’s document followed those instructions. The list would have been useless to help avoid violations of the Sinecure Clause with respect to judicial appointments, which were and remain an important class of officers.
     Third, there is no evidence that Congress ever made such a request of Hamilton prior to the start of the Second Congress in 1791 or prior to the start of the Fourth Congress in 1795. To the contrary, Hamilton and the Treasury Department issued dozens of circulars, memoranda, and reports concerning the federal workforce in response to congressional requests.[6] For example, in 1791, the House of Representatives directed the Secretary of the Treasury to prepare an annual statement listing an “accurate statement and account of the receipts and expenditures of all public moneys.”[7] In response to this broad request, Hamilton’s 72-page report included the compensation for all Article III judges, the members of the House and Senate, along with the Vice President and the President.[8] In contrast, where Hamilton was asked to list the “emoluments” of “every person holding any civil office or employment under the United States,” excluding judges, he did not list the compensation for Representatives, Senators, the Vice President, or the President. In one document Hamilton and the Treasury Department included all elected officials, and in the other document, Hamilton did not include any elected officials. What differed was the language in the instructions instructing Hamilton’s efforts. And where congressional guidance sought a list of those holding office . . . under the United States, Hamilton did not include any elected positions.
     There is an entirely different document that lists the salaries of President Washington and Vice President Adams before recording the salaries of the appointed officers included in Hamilton’s original report.[9] In parallel litigation concerning the Foreign Emoluments Clause in the Southern District of New York, the same group of five Legal Historians had cited this second document to contend that the President holds an “office . . . under the United States.”[10] However, Tillman and JEP filed a response, showing that this latter document was in fact a scrivener’s copy drafted long after Hamilton’s death.[11] Subsequently, the Legal Historians issued a formal apology, and withdrew their claim about this second document from their amicus brief.[12]
     The editors of American State Papers, who would publish in 1834 a typeset reproduction of this scrivener’s copy, explained, indirectly at least, why President Washington and Vice President’s Adams’s salaries were added. In 1816, Congress authorized the biennial publication of the Official Register of the United States, also known as the Blue Book,[13] to record the “compensation, pay, and emoluments” of “all officers and agents, civil, military, and naval, in the service of the United States.”[14] The first edition of the Blue Book, published in 1818, lists the salaries of President Monroe and Vice President Tompkins before recording the salaries of appointed officers in all three branches; elected members of Congress are not listed.[15]
     Though Hamilton’s 1793 roll of officers did not include the salaries of President Washington and Vice President Adams, the editors of American State Papers nonetheless identified this document in the index as the “‘Blue Book,’ or list of civil officers of the United States.”[16] That is, the editors viewed Hamilton’s original 1793 document as a progenitor or the best analogue to the Blue Book from the time period in which the Constitution went into force. After all, Hamilton’s 1793 roll of officers listed the “emoluments” of all appointed officers in the executive and legislative branches. (Congress had asked Hamilton to exclude judges.) However, there was one significant difference between the format of the 1818 Blue Book and Hamilton’s 1793 roll: the latter’s omission of the salaries of the President and the Vice President. To conform Hamilton’s roll to the format of the Blue Book, an unknown Senate functionary inserted the emoluments of President Washington and Vice President Adams. Once this addition was made, Hamilton’s roll closely tracked the format of the Blue Book. Even the sequencing was identical: President, Vice President, Department of State, Treasury Department, Department of War, etc. When viewed in the context of the Blue Book, the addition of the President and Vice President makes sense; it was a formatting or editorial decision made in 1834, not an interpretation of who holds “Office . . . under the United States” made in 1834, much less by Hamilton in 1793.
     This latter report, which was drafted by an unknown Senate functionary—likely to conform to the format of the Blue Book—should not be accorded the same weight as the original document signed by Hamilton and transmitted to the Senate as an official Executive Branch communication. At this juncture, the Legal Historians and Plaintiffs’ other amici have no response, whatsoever, to this important official communication from Alexander Hamilton. 


Seth Barrett Tillman, The Blue Book & the Foreign Emoluments Clause Cases Against the President:  Old Questions Answered, New Reform Club (Dec. 31, 2017, 6:10 AM),
https://reformclub.blogspot.com/2017/12/the-blue-book-foreign-emoluments-clause.html


** This post is based on: Corrected Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at Part II[D][1], at 20–24, District of Columbia & State of Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 31, 2017) (Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 77, https://ssrn.com/abstract=3089868; and Response [Brief] of Scholar Seth Barrett Tillman and the Judicial Education Project as Amici Curiae in Support of the Defendant at Part II[D][1], at 20–25, District of Columbia & State of Maryland v. Donald J. Trump, President of the United States of America, Civ. A. No. 8:17-cv-01596-PJM (D. Md. Dec. 29, 2017) (Messitte, J.) (filed by Professor Josh Blackman et al.), Doc. No. 76.
[1] 1 Journal of the Senate of the U.S.A. 441 (1820) (May 7, 1792 entry) (emphasis added), bit.ly/2rQswt8.
[3] Id. The editors of the Papers of Alexander Hamilton marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The cover letter of The Complete Report, which was drafted in long hand, can be found at bit.ly/2fj6IQ0. The reproduction in the Papers of Alexander Hamilton is typeset. See supra note 2.
[4] Gautham Rao & Jed Handelsman Shugerman, Presidential Revisionism: The New York Times published the flimsiest defense of Trump’s apparent emoluments violations yet., Slate (July 17, 2017), perma.cc/K6P4-RC6S.
[5] See U.S. Const. art. I, § 6. cl. 2.
[6] See generally A List of Treasury Reports and Circulars Issued by Alexander Hamilton, 1789–1795 (Paul Leicester Ford ed., Brooklyn 1886), bit.ly/2zpBoqe.
[7] 1 Journal of the House 484 (Washington, Gales & Seaton 1826) (entry for December 30, 1791), bit.ly/2pr0p4A.
[8] See Report on an Account of the Receipts and Expenditures of the United States for the Year 1792 [“The 1792 Report”], in 15 Papers of Alexander Hamilton 474, 498–510 (1969), bit.ly/2BvwJF9.
[9] 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), bit.ly/2ptHRkm. The Condensed Report, which was drafted in long hand, can be found at bit.ly/2xknN6j. The reproduction in American State Papers is typeset.
[10] Adam Liptak, ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm, N.Y. Times (Sept. 25, 2017), https://www.nytimes.com/2017/09/25/us/politics/trump-emoluments-clause-alexander-hamilton.html?mtrref=undefined.
[11] See Motion for Leave to File Response to Brief of Amici Curiae by Certain Legal Historians, CREW v. Trump, 17 Civ. 458 (S.D.N.Y. Sept. 19, 2017), [ECF No. 85], bit.ly/2yc175l.
[12] See Letter to Judge George B. Daniels, id. at [ECF No. 96], bit.ly/2gaoHsD. See Jed Shugerman, Our correction and apology to Professor Tillman, Shugerblog (Oct. 3, 2017), perma.cc/R9N9-S472.
[13] John P. Deeben, The Official Register of the United States, 1816-1959, National Archives, perma.cc/RJD6-S232.
[14] See, e.g., A Register of Officers and Agents, Civil, Military, and Naval, in the Service of the United States on the Thirteenth Day of September, 1817, at iii (Washington, E. De Krafft 1818), bit.ly/2BwkFmM.
[15] Id. at 9, 16–17.
[16] 1 American State Papers/Miscellaneous, Index ii (1834), bit.ly/2Da7uIW.