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The President and the Purposes of the Foreign Emoluments Clause (Part III): Presents and Emoluments

We may now turn to the question of whether the Framers might have had reason to exclude the president from the Foreign Emoluments Clause’s presumptive ban on accepting any “present” or “emolument” from a foreign power. Here we should start with an important distinction. I am not claiming that the exclusion of the president from the FEC would be an absurd result in the sense that it would justify departing from the plain meaning of the Constitution. Compare United States v. Kirby, 74 U.S. 482, 487 (1868) (classic example of the absurd results doctrine is the law “’that whoever drew blood in the streets should be punished with the utmost severity’ did not extend to the surgeon who opened the vein of a person that fell down in the street in a fit”). If the plain meaning of the FEC excludes the president, I am satisfied that Professor Grewal’s explanation (discussed in my original post on this topic) would be sufficient to forestall operation of the absurd results doctrine.

If, however, the question is whether the meaning of the FEC is plain or, if plain, what that meaning is, then I think Professor Grewal falls short of offering a persuasive reason why the Framers might have decided not to restrict the president’s acceptance of foreign presents or emoluments. Grewal suggests first that the Framers’ concerns about foreign gifts and payments may have centered on appointed officers because only officers “like ambassadors . . . would make the type of extended visits abroad that could subject them to improper foreign influence.” Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *7 (forthcoming 2017).

At the outset, there is something less than a tight fit between this hypothesis and the language used in the FEC. After all, the Clause applies to all persons who hold any office of profit or trust under the United States. This language is not limited to officials likely to make extended trips abroad, but includes many officers with a largely or exclusively domestic focus (such as the Secretary of the Treasury and subordinate officials responsible for the public fisc, the Chief Coiner and other officers of the Mint, the Attorney General and district attorneys, postmasters and other officials involved in the postal system, and the entire federal judiciary, among others). If the Framers had wanted to limit the FEC to diplomatic officials likely to spend significant time abroad, they could have employed the language used elsewhere in the Constitution (“ambassadors, other public Ministers and Consuls”) to refer to such officials.

Common sense also suggests that foreign powers would have ample opportunity, and even greater motive, to offer the president gifts and payments (both of the somewhat above-board ceremonial kind or of the less savory surreptitious kind). For example, the president is charged by Article II with receiving ambassadors and other pubic ministers from foreign nations. See U.S. const., art. II, § 2. As the official ultimately responsible for the conduct of U.S. foreign policy, the president would certainly be expected to meet and correspond directly with foreign dignitaries, including heads of state, on a regular basis. Thus, the Framers would hardly have been surprised that U.S. presidents, beginning with George Washington, have been offered or received gifts from foreign governments or dignitaries. See, e.g., Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause, 107 Nw. L. Rev. 180, 188-90 (2013) (citing examples).

It is true that U.S. ambassadors and other diplomatic officials were a particular concern of the FEC, due in large part to the European custom of giving gifts, sometimes of significant value, to visiting foreign diplomats. Because it was often diplomatically awkward to refuse such gifts, this is also likely why it was thought impractical to have an absolute ban on accepting them. See Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution *40 (Feb. 5, 2017).

I am aware, however, of no evidence to suggest that the Framers were concerned exclusively with potential foreign corruption of diplomats or other officials who would be abroad for long periods. To the contrary, there is a great deal of evidence (some of which was discussed in my last post) that the Framers were equally if not more concerned about foreign corruption of the president.

For example, during the Philadelphia Convention’s consideration of whether the president should be impeachable, James Madison thought it “indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate.” II Farrand’s Documentary History of the Constitution 65. Madison warned specifically that the president “might betray his trust to foreign powers.” Id. at 66.

Gouverneur Morris, who had initially leaned against the president’s impeachability, pronounced himself persuaded by the debate to change his mind. He explained:

Our Executive was not like a Magistrate having a life interest, much less like one having an hereditary interest in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the first Magistrate in foreign pay without being able to guard agst. it by displacing him. One would think the King of England well secured agst bribery. He has as it were a fee simple in the whole Kingdom. Yet Charles II was bribed by Louis XIV.

Id. at 68-69 (emphasis added). Morris’s point seems to be that there is a greater chance that the president would choose his private interest over that of the country than would the King of England, who basically owns his country as private property, yet even the latter could be successfully bribed by a foreign power. Be that as it may, these remarks confirm that the Framers were attuned to the danger of a president coming to be “in foreign pay.” It would therefore be highly surprising had the Framers decided the president, of all executive branch officials, should not be subject to the FEC. See Saikrishna Banglore Prakash, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 35, 41-42 (2009) (particularly in light of Framers’ knowledge of incidents such as payments from Louis XIV of France to Charles II of England, reading FEC “as if it permitted the President to receive foreign bribes, without any congressional oversight or check, makes little sense”).

It may be recalled from my last post that the anti-Federalists were dissatisfied with the Constitution’s protections in two respects relevant to our discussion. The first is that the FEC is not an absolute prohibition on foreign titles and payments, but allows for their acceptance with congressional consent. The second is that the president is simply too tempting a target for foreign influence and corruption because of the powers the Constitution concentrates in his hands. George Mason reflected both of these concerns in the Virginia ratifying convention when he pointed out that the president “may, by consent of Congress, receive a stated pension from European potentates.”

Responding to Mason’s argument, Edmund Randolph (who, like Mason, had been a delegate to the Philadelphia Convention) contended:

There is another provision against the danger, mentioned by the honorable member, of the President receiving emoluments from foreign powers. If discovered, he may be impeached. If he not be impeached, he may be displaced at the end of four years. By the 9th section of the 1st article, “no person, holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people;” and by the 1st section of the 2d article, his compensation is neither to be increased nor diminished during the time for which he shall have been elected; and he shall not, during that period, receive any emolument from the United States or any of them. I consider, therefore, that he is restrained from receiving any present or emolument whatever. It is impossible to guard better against corruption.

3 Elliot’s Debates 486.

This colloquy shows that Mason and Randolph, though disagreeing on the adequacy of the FEC and other constitutional provisions for this purpose, agree on two key points: (1) the president receiving emoluments or presents from foreign powers is a danger against which safeguards are needed; and (2) the FEC’s strictures do apply to the president.

Randolph’s remarks also suggest that the FEC and the Presidential Compensation Clause (art. II, § 1, cl. 7) are complementary restrictions that limit the president to a fixed salary and ensure that he does not receive any other emoluments from the United States, any state or any foreign power. One might quibble with Randolph on the grounds that the FEC is not an absolute prohibition, thus theoretically permitting the president to receive foreign emoluments or presents with congressional permission. In general, however, his remarks confirm, pace Professor Grewal, that the Framers did not see the presidency for some reason as raising concerns only as to domestic emoluments. Indeed, it is not obvious to me why anyone, with or without insight into the Framers’ deliberations, would think that the president would be singled out for restriction on domestic emoluments, while simultaneously excluded from a general prohibition on foreign emoluments.

Finally, we may address Grewal’s suggestion that the Framers might have been particularly concerned about potential foreign corruption of officers who, unlike the president, did not receive a fixed salary and were dependent on transaction-based payments for their livelihood. Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, *9 (forthcoming 2017). This idea strikes me as getting things a little backwards. The president’s compensation, unlike that of any other executive branch official, is constitutionally fixed because of the singular importance of his office and the need to ensure that Congress cannot financially reward or punish him during his term of office. Likewise, he is prohibited from receiving any other emoluments from the United States or any state to prevent any financial dependence or partiality on his part. It would be utterly implausible to think that the Framers would be less concerned about the need to insulate the president from foreign financial influence, or that they would have been more worried about foreign corruption of customs collectors or immigration officials.

Federal judges also have constitutional protection for their salaries, which cannot be diminished during their time in office. In comparison to the president, there is little reason to think that they would either be in regular contact with foreign powers, or that foreign powers would have reason to influence them. Yet federal judges are not exempted from the prohibitions of the FEC.  It is hard to see how it would make sense to exempt the president.

A more plausible explanation for excluding the president would relate to the requirement in the FEC to obtain congressional consent. It is at least possible to imagine that some could think it improper to require the president, as the head of a separate branch of government, to seek such consent whenever a foreign government offered him something “on the order of a snuffbox, a portrait, or a gold chain,” as Professor Currie puts it. See David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 281 (1997). Rather than requiring the president to seek congressional permission, it would be left to his judgment whether to accept a foreign gift or an emolument personally or on behalf of the United States. If he should accept a bribe or an improper gift or payment that Congress considered to amount to a high crime or misdemeanor, he would be subject to impeachment.

Tillman suggests something along these lines in his comments to my blog post of 3-13-17. While stating “I frankly admit that I do not know” why the Framers might have exempted “federal elected officials” (including the president) from the FEC, Tillman proposes that the Framers might have “relied on elected officials to act like fiduciaries” and/or been concerned about giving another body the power to make judgments concerning “those at the apex of authority.” In the context of the president and the FEC, this would mean that the Framers may have preferred to rely on the president’s judgment regarding the acceptance of foreign presents and emoluments, instead of requiring him to submit to Congress’s judgment on such matters.

There is some surface plausibility to the “no congressional permission slip” explanation, but it is wrong for at least three reasons. First, as Professor Grewal noted regarding his own explanation, “no contemporaneous materials advance this understanding.” In other words, it’s a nice theory, but it is made up out of whole cloth. (I can say this since I made it up, and I think Tillman would agree as well). There is no evidence that any Framers (or anyone else) actually subscribed to it.

Second, this explanation overlooks an important aspect of the congressional consent requirement. This requirement doesn’t just restrict the foreign presents and emoluments that can be accepted; it also ensures that offers of such presents and emoluments are disclosed. If the recipient of a foreign gift or payment discloses it publicly, this is in itself some assurance that it is not improper and will not influence the recipient. If the gift or payment is kept secret, on the other hand, its discovery will excite suspicion even if it was not actually a bribe.

Had the Framers intended to permit the president to be the judge of his own emoluments, they would have provided for a mechanism for disclosure of his decisions. For example, they could have required that he inform Congress, rather than seek its permission. Simply omitting the president from the FEC would be a recipe for misunderstanding and suspicion, which would likely have led to wholly unnecessary and predictable charges of corruption.

Finally, and most importantly, while it is possible that some people might have subscribed to my theory, it is inconceivable that everyone would have done so. As we have seen, any suggestion of a loophole in the FEC that would have allowed the president to receive presents or emoluments (much less titles of nobility) from foreign powers without congressional permission or oversight would have excited tremendous opposition. The fact that there was no controversy on this point can only be explained in two ways: (1) the existence of a presidential loophole in the FEC was publicly known or discussed, and yet no one objected; or (2) everyone understood or assumed, and no one (at least publicly) disputed, that the president was in fact covered by the FEC. The overwhelming evidence is in favor of the latter over the former.

 

The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility

There has been much debate about Professor Zephyr Teachout’s claim that the Foreign Emoluments Clause and other constitutional provisions show that the Framers were “obsessed” with corruption. Compare Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 405 (2009) with Robert G. Natelson, The Original Meaning of “Emoluments” in the Constitution 59-60 (Feb. 5, 2017) (arguing that the Framers balanced their concerns with potential corruption against other competing values) and Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle, 107 Nw. L. Rev. 399, 404-10 (2012) (arguing that Teachout has overstated her claim about the Framers’ “obsession” with corruption). Whatever the right word for the Framers’ concerns about corruption, a stronger one is probably needed to describe their hostility (and that of the founding generation) toward titles of nobility. This is particularly true in comparison with modern sensibilities, which regard financial corruption and conflicts of interest with at least as much dismay as did the Framers, but are more likely to view titles of nobility as an amusing irrelevance.

Some flavor of the republican opposition to titles of nobility can be found in the Georgia Constitution of 1777, Article XI of which provided:

No person shall be entitled to more than one vote, which shall be given in the county where such person resides, except as before excepted; nor shall any person who holds any title of nobility lie entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit, or trust in this State, whilst such person claims his title of nobility; but if the person shall give up such distinction, in the manner as may be directed by any future legislation, then, and in such case, he shall be entitled to a vote, and represent, as before directed, and enjoy all the other benefits of a free citizen.

(emphasis added). Here the holder of a title of nobility was not only disqualified from serving in the legislature and holding a “post of honor, profit, or trust,” but even from exercising his right to vote.

As discussed in my last post, the Articles of Confederation did not go quite that far, but it barred both the national and state governments from issuing titles of nobility and prohibited any person holding an “office of profit or trust” under the United States or any state from accepting titles of nobility (as well as presents, emoluments or offices) from a foreign power. The Constitution largely copied these prohibitions, but, as we saw, permitted acceptance with congressional consent and did not apply to state officeholders.

Ratification

The Federalists pointed to the Constitution’s provisions on titles of nobility as an essential protection of republican government. Madison remarked in Federalist No. 39: “Could any further proof be required of the republican complexion of this system, the decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the state governments, and in its express guarantee of the republican form to each of the latter.” (It should be noted that the Constitution’s guarantee of a republican form of government to the states, which did not appear in the Articles, may in part explain why it was not considered necessary to cover state officeholders in the Foreign Emoluments Clause).

Alexander Hamilton, in Federalist No. 85, likewise listed the “absolute and universal exclusion of titles of nobility” as one of “securities to republican government” provided by the Constitution and explained in Federalist No. 84:

Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner stone of republican government for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.

The assurance of an “absolute and universal exclusion,” however, was not quite accurate. With respect to foreign titles of nobility, the Constitution’s restrictions applied only to holders of offices of profit or trust under the United States. Moreover, unlike the Articles, the Constitution allowed acceptance of such titles of nobility (as well as presents, emoluments and offices from foreign powers) with congressional consent.

This latter change did not go unnoticed in the state ratifying conventions. John Hancock submitted a resolution to the Massachusetts convention asking that the words “without the Consent of Congress” be struck from the Foreign Emoluments Clause so that “there would be an absolute prohibition on federal officeholders’ accepting any emolument, office, or title from a foreign country or King.” Pauline Maier, Ratification: The People Debate the Constitution 1787-1788 197 (2010). The Massachusetts, New York and Rhode Island ratifying conventions all asked for amendments making this change. The Virginia and North Carolina conventions chimed in for a general amendment banning exclusive or hereditary emoluments, privileges or offices of any kind, which presumably would have banned all foreign titles among other things. See Jol A. Silversmith, The “Missing Thirteenth Amendment”: Constitutional Nonsense and Titles of Nobility, 8 Southern Cal. Interdisciplinary L. J. 577, 578 & nn. 11, 13 (1999). Finally, the New Hampshire ratifying convention asked for an amendment that “Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.”

Clearly titles of nobility were a major concern of both Federalists and anti-Federalists, and there was considerable scrutiny during ratification of whether the FEC was sufficiently strict in this regard. It seems inconceivable that these concerns would not have extended to a presidential exemption from the FEC, if anyone thought that such an exemption might exist. To the contrary, the presidency would seem to present the most compelling example of the potential corruption of titles of nobility in general and foreign titles in particular. (It should be noted again that Professor Grewal’s explanation of why the Framers might have chosen to exempt the president from the FEC does not address titles of nobility).

Unquestionably the Framers were worried about potential foreign influence over the presidency, and it was to prevent such influence that they required the president to be a natural born citizen. See U.S. const., art. II, § 1, cl. 5. This requirement is inextricably tied to fears about presidential monarchism. As St. George Tucker explained:

That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. It was by means of foreign connections that the stadtholder of Holland, whose powers at first were probably not equal to those of a president of the United States, became a sovereign hereditary prince before the late revolution in that country. Nor is it with levity that I remark, that the very title of our first magistrate, in some measure exempts us from the danger of those calamities by which European nations are almost perpetually visited. The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.

St. George Tucker, Blackstone’s Commentaries, Vol. 1, Note D, Part 7 (1803)(emphasis added). See also Akhil Reed Amar, Natural Born Killjoy (2004) (natural born citizen requirement was designed to “ease anxieties about foreign nobility,” to “reject all vestiges of monarchy,” and to prevent a scenario where “a foreign earl or duke would cross the Atlantic with immense wealth and a vast retinue and use his European riches to buy friends and power on a scale that no American could match.”); cf. Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors *17 (Mar. 4, 2017), Arizona L. Rev. forthcoming (“But the founders were familiar enough with the intrigues of the feudal courts of Europe to anticipate the possibility of foreign powers or domestic cabals attempting to influence the national legislature to install some willing princeling as president”).

The anti-Federalists, however, were not persuaded that the Constitution contained enough safeguards against presidential monarchism and foreign influence. At the Virginia ratifying convention, for example, William Grayson warned that ‘[t]he president had too much power, which would make it worth the while of foreign countries to interfere in his election—as they had done when Poland chose a new king in the early 1760s.” Maier, supra, at 286. Patrick Henry likewise warned that the president “could easily become a king.” Id. at 266. But no one claimed that the FEC exempted the president from the restrictions on receiving titles of nobility or other benefits from foreign powers.

Most telling in this regard were the remarks of George Mason, who like Grayson cited the Polish example as evidence of likely foreign tampering with the presidency:

Will not the great powers of Europe, as France and Great Britain, be interested in having a friend in the President of the United States? And will they not be more interested in his election than in that of the king of Poland? The people of Poland have a right to displace their King. But do they ever do it. No. Prussia and Russia, and other European powers, would not suffer it. This clause will open a door to the dangers and misfortunes which the people of Poland undergo. The powers of Europe will interpose, and we shall have a civil war in the bowels of our country, and be subject to all the horrors and calamities of an elective monarchy. This very executive officer may, by consent of Congress, receive a stated pension from European potentates.

 3 Elliott’s Debates 484 (emphasis added). Here Mason clearly implies that the president is subject to the FEC and therefore requires consent of Congress to receive a “stated pension from European potentates.” See Natelson, supra, *12 n. 25 (noting that Mason in this speech “apparently assumes that the Foreign Emoluments Clause applies to the president”). Mason’s remarks are particularly significant because (1) he was a Framer and (2) as an anti-Federalist, he had every incentive to identify any possible risks in the Constitution. (I mean, he even suggests the Russians might interfere in a presidential election!) The fact that he assumes that the FEC applies to the president suggests an interpretation to the contrary did not even cross his mind.

Indeed, nowhere in the ratification debates or the writings of the anti-Federalists does it appear that anyone suggested that the president might be exempt from the FEC. Given that many thought the FEC was already too lenient in allowing the acceptance of titles of nobility and other benefits with congressional consent, it is simply incredible that the opponents of the Constitution would not have objected to the president being exempted, which they certainly would have portrayed as a virtual invitation to foreign interference and bribery. The near universal revulsion with which titles of nobility were regarded would have made the idea that the president was free to accept foreign titles a particularly strong anti-Federalist talking point. Continue reading ‘The President and the Purposes of the Foreign Emoluments Clause (Part II): Titles of Nobility’ »

The President and the Purposes of the Foreign Emoluments Clause (Part I)

I promised to return to the subject of the Foreign Emoluments Clause and so today I will start a series of posts on the purposes of that Clause and whether it makes sense for the president to be excluded from its terms. This first post will set the stage with a little background.

To be clear, the question here is not merely whether the ostensible purposes of the FEC would be better served by including the president. Rather it is whether the exclusion of the president would be so discordant with those purposes that (1) the educated reader of the Constitution in 1787-89 would have assumed the Clause encompassed the president and/or (2) any suggestion of the president’s exclusion could have been expected to provoke controversy and opposition. If either or both of these is true, then silence regarding the president’s alleged exclusion should be taken as evidence that (1) such exclusion was either (a) not intended by the Framers or (b) not communicated by the Framers to anyone else; and (2) such exclusion was not widely understood by the ratifiers or the general public.

And silence there was. To my knowledge, prior to Professor Tillman’s raising the issue in 2009 or so, no one had ever expressly claimed or directly implied the president was excluded by the FEC. No president, no member of Congress, no executive branch lawyer, no constitutional scholar. No one. By contrast, there had been a number of statements expressly affirming or clearly assuming the president’s inclusion, including by Framers/ratifiers (Edmund Randolph and George Mason), by executive branch lawyers at the Office of Legal Counsel, by statute (the Foreign Gifts and Decorations Act) and by occasional comment of constitutional writers and scholars. Perhaps this is a relative paucity of affirmations over a period of two centuries, but on the other hand there was little reason for anyone to expressly consider and affirm what no one had disputed or denied.

Under the circumstances, it is not surprising that no one had offered an explanation as to why the Framers might have excluded the president from the FEC’s provisions. Indeed, Tillman himself, although he has intimated reasons why the president might have been excluded from other constitutional provisions, such as the Disqualification Clause (see here at page 92 n.83), has not explained to my recollection why the Framers would have wanted the president to be exempt from the FEC’s presumptive ban against accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” And there is no obvious reason (at least obvious to me) why the president would be exempted from a provision founded, in Justice Story’s words, “in a just jealousy of foreign influence of every sort.” 3 Joseph Story, Commentaries on the Constitution of the United States § 1346.

Fortunately, Professor Grewal has attempted to fill this void. In a recent article focused primarily on other aspects of the FEC, he notes:

Scholarly debates show that whether the Foreign Emoluments Clause treats the President as a U.S. Officer remains an open question. At first glance, it may seem implausible that the Constitution would exempt any member of the government from a provision designed to prevent corruption. Yet the Domestic Emoluments Clause, which also guards against corruption, applies only to the President and not generally to U.S. Officers, or even to the Vice President. This suggests that the Framers may have drafted each emoluments clause to address their principal concerns, without attempting to guard against corruption of every type imaginable.

Regarding their principal concerns, the Framers may very well have believed that only appointed officers, like ambassadors, would make the type of extended visits abroad that could subject them to improper foreign influences. The President, they may have thought, would remain stateside to tend to the needs of the nation, and his potential corruption would be best addressed through the Domestic Emoluments Clause. Under this view, the exclusion of the President from the Foreign Emoluments Clause would be entirely consistent with the Framers’ design.

Andy S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. __, **7-9 (forthcoming 2017).

Grewal also notes that the Framers might have been more concerned about the potential for corruption among those officers of the United States who did not receive fixed compensation, but were dependent on “potentially uncertain streams of income” such as charging transaction-based user fees for services like processing of immigration papers. Id. at *9. Because the Constitution guarantees the president a fixed salary, Grewal suggest that the Framers may have been less concerned about the possibility the president would be susceptible to foreign corruption. He acknowledges, however, that “no contemporaneous materials advance this understanding.” Id.

With this potential explanation in mind, let’s take a closer look at what the FEC proscribes. We begin with the text:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. const., art. I, § 9, cl. 8.

One thing to note from this language is that the U.S. officeholder is not only restricted from receiving any present or emolument, but two items not discussed by Professor Grewal. One is any title, including if not necessarily limited to any title of nobility, which appears to be a central focus of the Clause. (More on this later.)

The other is any “office.” Presumably an office conferred by a foreign government could impose duties to be performed on behalf of that government. Acceptance of such an office would seem to be manifestly improper for any federal officeholder, much less the president of the United States. For present purposes, however, I will assume that the FEC primarily contemplates ceremonial offices, which would simply be another way of conferring an emolument or title. Therefore, I will not give separate consideration to this restriction.

The language of the FEC must be understood in light of Article VI of the Articles of Confederation, which contained a closely related provision from which the FEC is derived:

No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; nor shall any person holding any office of profit or trust under the United States, or any of them, accept any present, emolument, office or title of any kind whatever from any King, Prince or foreign state; nor shall the United States in Congress assembled, or any of them, grant any title of nobility.

This provision of the Articles combines two different concepts. The first sentence limits the ability of states to conduct their own foreign relations. The last sentence prohibits the United States or any state from issuing titles of nobility. The middle sentence links these seemingly unrelated subjects by prohibiting any person holding “any office of profit or trust” under the United States or any state from accepting a title of nobility or other benefit from a foreign power.

The drafters of the Constitution broke this provision into two components. The FEC addresses prohibitions on the United States, forbidding the issuance of titles of nobility at the federal level and federal officeholders from accepting, without congressional consent, titles of nobility or other benefits from foreign powers. A separate provision, which immediately follows the FEC, contains a series of prohibitions on the states, including forbidding them from entering into any treaty, alliance or confederation and from issuing any title of nobility. See U.S. const., art. I, § 10, cl. 1.

There are two observations of interest here. The first is that the FEC uses the same term, “office of profit or trust” under the United States, as was used in the Articles. Since there was no president under the Articles, there may have not been a pre-existing understanding as to whether the term embraced the office of president.

Second, unlike the Articles, the Constitution does not forbid state officeholders from accepting titles of nobility, emoluments, etc. from foreign powers. The reason for the change is unclear. One possibility is that the Framers decided to permit such acceptance with the consent of Congress, but thought it improper or impractical to require state officeholders to seek such permission (imagine Congress being inundated with requests from state officials, who at that time would have been much more numerous than federal officers). Alternatively or in addition, they may have thought it inappropriate or unnecessary for the federal constitution to regulate the conduct of state officeholders.

It is also possible that the prohibition with respect to state officeholders in the Articles was considered necessary because of the particular structure of that system. The primary national institution under the Articles was the Confederation Congress, and delegates to that Congress, who were “annually appointed in such manner as the legislatures of each State shall direct,” arguably functioned more like state delegates or commissioners to an interstate convention than like ordinary legislators. This is speculation, but the drafters of the Articles may have thought that covering “offices of profit or trust” under any state was necessary in order to ensure that delegates to the Confederation Congress were subject to the prohibition.

With this background, in my next post I will turn to the purposes of the prohibition on titles of nobility.

Would Speech or Debate Protect Attorney General Sessions from Prosecution?

It is being alleged that Attorney General Sessions gave untruthful testimony in his confirmation hearing. Specifically, in response to a question from Senator Franken about communications between Trump surrogates and representatives of the Russian government in the course of the 2016 presidential campaign, Sessions responded: “Senator Franken, I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign and I did not have communications with the Russians, and I’m unable to comment on it.” In fact, Sessions apparently did have two discussions with the Russian ambassador during 2016, although it is unclear whether they discussed anything regarding the election.

For present purposes, we will skip the (serious) issue of whether there is a plausible basis for viewing this testimony as perjury or a material false statement that could be the basis of a criminal prosecution. Assuming that such a basis exists, there is an interesting legal question that arises. Would Sessions be immune from prosecution under the Speech or Debate Clause? For the reasons set forth below, the answer is probably no.

Continue reading ‘Would Speech or Debate Protect Attorney General Sessions from Prosecution?’ »

Congressional Staff Work on Transition Matters

At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition.

How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a state legislature to restrict the authority of its delegates to an Article V convention, to require from its delegates an oath or pledge to restrict their deliberations to the subject of the application, and to provide for disqualification of and/or sanctions against any delegate who violates these restrictions. See Michael L. Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 786 (Spring 2011). Since that time, at least seven states have passed such “delegate limitation acts” or “faithless delegate” laws. See David F. Guldenschuh, The Article V Movement: A Comprehensive Assessment to Date and Suggested Approach for State Legislators and Advocacy Groups Moving Forward 19 & n. 77 (Nov. 2015).

The concept of DLAs (as I shall refer to them collectively) was in part based on analogous laws that had been passed or proposed to bind presidential electors. See Stern, 78 Tenn. L. Rev. at 786 n. 111. For example, the Uniform Faithful Presidential Electors Act (UFPEA), completed by the Uniform Law Commission in 2010, “provides a statutory remedy in the event a state presidential elector fails to vote in accordance with the voters of his or her state.” The UFPEA provides “a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge, effectively constituting resignation from the office of elector.” While only a handful of states have passed the UFPEA thus far, a total of 30 states plus the District of Columbia have some sort of law purporting to bind presidential electors to vote for their state’s popular vote winner.

The constitutionality of the UFPEA and other “faithless elector” laws has been debated and litigated over the past several months. Following the November 8, 2016 presidential election, a concerted effort was made by the “Hamilton electors” to argue that (a) presidential electors are free, as a constitutional matter, to vote in accordance with their own judgment and conscience; and (b) whatever norms might ordinarily compel electors to vote in accordance with the popular vote in their state were overcome by the unique and extraordinary facts of this election. These facts fell into three categories: (1) the failure of Donald Trump to win a majority or plurality of the national popular vote; (2) facts which allegedly showed Trump’s unfitness for office (some of which cannot be mentioned on this family-friendly blog); and (3) facts which allegedly showed foreign interference in the election.

As best you can, clear your mind of any passion these arguments may incite in it. Our objective here is not to pass judgment on President Trump, the Hamilton electors, or even the merits of their respective legal arguments per se. Instead, it is to see what the effort to secure an unbound electoral college, a “runaway college” if you will, tells us about the practical, real-world prospects for an analogous effort with regard to an Article V convention.

Continue reading ‘How the Hamilton Electors Show that an Article V Convention Cannot Run Away’ »

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

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Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange

Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or testimony overseas through the use of letters rogatory or requests for legal assistance under applicable treaties, though these are far from guaranteed methods of success. As far as I know, no congressional committee even attempted to subpoena Snowden.

With calls for congressional investigation of Russia’s alleged interference in the 2016 presidential election, one or more committees may now face the issue of attempting to subpoena Julian Assange, the founder of Wikileaks and a key witness in any such investigation. Attempting to secure Assange’s testimony may be even more challenging than trying to get Snowden’s because Assange is not a U.S. citizen and he resides in the sovereign territory of one country (Ecuador) located in another (the UK). Specifically, Assange lives in the Ecuadorian embassy in London.

Before getting into how a committee might attempt to procure Assange’s testimony, it should be noted that the committee would be wise to get authorization from its chamber to seek information abroad. As Mort Rosenberg explains in his forthcoming book, such authorization has traditionally been the first step in requesting international assistance to obtain information:

Since 1974 ten special congressional investigating committees have been vested with authority to request the judicial assistance of U.S. courts to take depositions or access information in foreign jurisdictions through the vehicle of letters rogatory and to seek other means of international assistance in gathering information in foreign countries.

Morton Rosenberg, When Congress Comes Calling: A Study of the Principles, Practices, and Pragmatics of Legislative Inquiry (anticipated January 2017 publication). Such authorization, to be sure, is not a magic wand that entitles the committee to all (or any) foreign discovery it desires. It may not even be legally necessary, but it does give the committee an “imprimatur of authority to utilize formal judicial and international treaty processes,” as well as serve “to give legitimacy to less formal ventures to obtain necessary information.” Id.

Thus, whether the investigation is conducted by a special committee or a permanent committee, it makes sense for the House or Senate to adopt a resolution specifically authorizing the committee in question to use means of international assistance to obtain information overseas. The committee also needs deposition authority (if it doesn’t have it already) since Assange and other foreign witnesses almost certainly cannot be compelled to travel to the United States to participate in a hearing. Finally, for reasons explained below, the committee should be authorized to effectuate service by means other than traditional personal service.

Continue reading ‘Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange’ »

The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others

Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either.

Shapiro notes that he “had been arguing to colleagues that McConnell should preemptively use his majority to eliminate the judicial filibuster, maybe even before Trump is inaugurated [but] a friend with intimate knowledge of Senate procedure informed me that it couldn’t be done in the abstract regardless”:

That’s because eliminating judicial filibusters isn’t a matter of changing the Senate rule on “cloture,” which says that 60 votes are needed to proceed to any final vote (short of “reconciliation”—see Obamacare—and other special situations). This rule has never been changed: Reid simply had the Senate majority adopt a “precedent,” in the context of D.C. Circuit nominee Patricia Millett, that cloture shall mean 51 votes for non-Supreme Court nominees.

Shapiro is right about what Senator Reid did on November 21, 2013 (Reid raised a point of order in the context of a particular nomination), but he is wrong (or his friend is wrong) that this is the only way to exercise the nuclear option. McConnell could exercise the nuclear option “in the abstract” for two reasons. First, McConnell could simply offer a motion to amend the Senate rules and then raise a point of order that cloture on such a motion is by a simple majority. The presiding officer would then presumably rule against the point of order, McConnell would appeal the ruling to the full Senate, and the Senate (acting by a simple majority) would reverse the presiding officer’s ruling. Following the “logic” of the Senate’s November 21, 2013 exercise of the nuclear option, this action would set a “precedent” permitting the Senate to end debate on motions to amend the rules by simple majority.

Such an action would be wrong because Rule XXII clearly requires a two-thirds vote to end debate on a motion to amend the rules, but it would actually be a less lawless (note I did not say “lawful”) means of changing the filibuster than merely setting a “precedent” that contradicts the plain text of the written rule. For example, suppose the Senate used this method to change Rule XXII so that it now required only a simple majority to end debate on either motions to amend the rules or on any nomination, but continued to require a supermajority to end debate on legislation. If subsequently an attempt were made to use the nuclear option to end the legislative filibuster, it might be persuasively argued that the November 21, 2013 precedent was no longer valid and that the proper means of changing the rules is to amend them, rather than to pretend that they say something else.

The second reason that Senator McConnell could seek to change the filibuster rule outside the context of a particular nomination or other pending measure is that this is how opponents of the filibuster have been trying to change or eliminate it for about a century. In fact, it was in 1917 that Senator Thomas Walsh first argued that the Senate rules could be changed at the beginning of a new Congress by a simple majority acting under “general parliamentary law.” This argument never prevailed in the Senate but it was frequently advanced over the next 100 years by senators who earnestly contended that the beginning of a new Congress was the only time that the rules could be changed by the action of a simple majority. At the start of at least six different Congresses from 1953-75, serious attempts were made on the floor to change Senate rules based on this theory. See Richard A. Arenberg & Robert B. Dove, Defending the Filibuster 117-41 (2012). In more recent years this theory was championed by senators such as Tom Udall and Jeff Merkley, supported by a group of noted legal academics.

As long-time readers may recall, I am not a big fan of this theory. (see this post and the 9 additional posts cited therein). I might even have made a bit of fun of it from time to time. But at least it was an argument, supported by actual reasons and advanced by distinguished senators and academics. True, the procedure for adopting this theory would have been the same as that used on November 21, 2013 (a ruling by the presiding officer followed by an appeal to the full Senate), which gave rise to well-grounded fears that it would soon render Senate rules subject to the whim of the majority. As Senator Vandenberg warned in a related context in 1948, it would mean that “regardless of precedent or traditional practice, the rules, hereafter, mean whatever the Presiding Officer of the Senate, plus a simple majority of Senators voting at the time, want the rules to mean. We fit the rules to the occasion, instead of fitting the occasion to the rules.”

In theory, however, the version of the nuclear option promoted by Senator Walsh and his successors had some limiting principles: it could only be employed at the start of the Congress and it involved a formal change to the rules, not merely a re-interpretation. The Walsh nuclear option was a wolf in sheep’s clothing, and a poorly-clad one at that, in part because these limiting principles were unlikely to hold. For example, there was no convincing reason why the nuclear option should be confined to the start of a new Congress.

What the Senate did on November 21, 2013, on the other hand, was supported by no principles, limiting or otherwise. As noted in my previous rant (er, post) on this subject, it seems to stand for nothing more than the proposition that “bad faith adjudication is an acceptable means of ‘changing’ the governing law.” As Justice Scalia would have said, this wolf comes as a wolf.

It is understandable that Shapiro and others are impatient with the Senate’s arcane rules and want to get on with confirming a constitutional conservative to the Supreme Court. Thus, Lew Uhler and Peter Ferrara urge here that Senator Reid’s unilateral termination of the filibuster for other nominations “should now be extended to Supreme Court appointments as well” because “[t]urnabout is fair play.” But this rationale, which is more suited to the schoolyard, will unravel what is left of the Senate’s legal system and further undermine respect for the rule of law. In other words, it will contradict the purpose of putting a constitutionalist on the Court in the first place.

(Incidentally, Uhler and Ferrara’s other suggestion of requiring a “talking filibuster” would be permissible because no rules change is needed for that).

As arduous as it may be, the right way for Senate to move forward is to seek the consensus necessary (meaning two-thirds of the Senate) to enact formal changes to the Senate rules. Whether these rules ultimately modify, repeal or reaffirm the use of the filibuster is up to the Senate. What matters is that the Senate decisively repudiate the use of the nuclear option that occurred on November 21, 2013. Only then will it be able to begin rebuilding its legal system.

A Christmas Present for Congress: the Congressional Clerkship Program

On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program:

In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating.  On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also toward bridging the enormous gap–a gap in both information and respect–between Congress and the courts.

The bill, sponsored by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND), and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in Congress for recent law school graduates, equally divided across chambers and political parties.  The bill envisions them competitively funded at the same level as their federal judicial counterparts.

We have discussed before the benefits that such a program would provide, particularly with respect to evening the legal playing field between the legislative and executive branches. It is a start toward, as they say in the LBCWG, “making Congress great again.”