Skip to content
 

Why Tillman’s Experts Show He is Wrong

Alternate title: “Everything You Ever Wanted to Know about the Hamilton Report (and Much, Much More).”

Readers of this blog are aware that Professor Seth Barrett Tillman has long maintained that the presidency and vice presidency are not “offices under the United States” within the meaning of various clauses of the Constitution which use that expression or a variant thereof. Tillman’s theory has a number of implications. We first discussed the theory in a December 20, 2008 post entitled “Can Joe Biden Be Vice President and Senator at the Same Time?,” in which it was noted that one implication is that the Incompatible Offices Clause (U.S. const., art. I, §7, cl. 2) would not prohibit someone from serving as president or vice president and at the same time as a member of the House or Senate.

More recently, Tillman’s theory has received a good deal of attention for its application to the Foreign Emoluments Clause (U.S. const., art. I, § 9, cl. 8). If, as Tillman maintains, the president does not hold an “Office of Profit or Trust under [the United States]” within the meaning of the FEC, then President Trump is not subject to the prohibitions of that clause, much to the dismay of many, including the plaintiffs in three separate lawsuits who have sued Trump for violating it.

Tillman has not (at least yet) convinced many people that his theory is correct. Among the unconvinced are President Trump’s personal lawyers and the Department of Justice, which represents the president in his official capacity in the aforementioned lawsuits. Because no party to these suits disputes the FEC’s applicability to the president, Tillman filed this amicus brief in one of the cases, CREW v. Trump, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y.), to ensure that the court has the benefit of his point of view.

(One prominent legal scholar who has been convinced is Professor Josh Blackman, who is representing Tillman in the CREW case. For brevity’s sake, this post refers only to Tillman, but it should be noted that Blackman also believes that the FEC does not apply to the president.)

Tillman’s argument relies in significant part on a 1793 document prepared by the Treasury Department that suggested, by omission, the president and vice president were not among those who held any “civil office or employment under the United States.” See Amicus Br. at 18-21. This document, which was submitted to the Senate under the signature of Secretary of the Treasury Alexander Hamilton, will be referred to herein as the “Hamilton Report.”

Before getting into the nuts and bolts of the Hamilton Report, I want to stress that Tillman’s reliance on the report depends on four assumptions about or inferences from the report: (1) the omission of the president and vice president from the report was a deliberate decision, rather than an oversight or error; (2) this decision was made or approved by Hamilton personally; (3) the decision was made for one specific reason, namely that the phrase “office or employment under the United States” excluded the president and vice president; and (4) the interpretation of this phrase was based on the unambiguous meaning of the words, rather than the context of their use or an extra-textual source of information. None of these can be definitively proved (or disproved), but Tillman evidently believes they can be adequately established for his purposes.

A foundational element of Tillman’s argument, though, came under attack in the CREW litigation when various experts and others aligned with the plaintiffs questioned whether the presidency and vice presidency had actually been omitted from the Treasury Department’s 1793 list. They contended (see here, here and here) that a subsequently published version of the Hamilton Report did include the president and vice president and therefore it was “grossly misleading” to suggest that Hamilton had omitted these offices at all. Moreover, in an amicus brief filed with the court, a group of legal historians contended that Hamilton had in fact signed the second version of this report, contrary to Tillman’s position.

Tillman responded to these charges by filing a proposed amicus response brief with a number of supporting exhibits, including declarations from five expert witnesses, two with expertise on authenticating founding-era documents and three with expertise on Alexander Hamilton. The evidence from these witnesses showed, to the satisfaction even of Tillman’s critics, that Hamilton signed only the Hamilton Report and not the version which listed the president and vice president. (That second version, which we will discuss later, was likely created in the 1830s, well after Hamilton’s death). In fact, the legal historians who had filed the brief criticizing Tillman issued a formal apology to him as well as a letter to the court withdrawing the footnote in which the criticism was made.

At this point you may be thinking this is all very interesting (if you’ve read this far I will assume you are the sort of person who would find this interesting), but is this really the way we go about determining the meaning of a constitutional provision? An inference from omission that is said to cast light on the view of a single framer about the meaning of a phrase that is used in an entirely different context but is similar (though not identical) to a phrase used in the Constitution? And which then leads to a battle of forensic experts about whether the omission happened in the first place? Is this original public meaning originalism or National Treasure originalism?

Well, these are good questions you ask, and I must admit I find the whole thing a little odd myself. Perhaps the judge did too, as he declined to accept Tillman’s proposed amicus response brief. But here at Point of Order, we never hesitate to waste large amounts of time on arcane matters that will never affect anyone in the real world. (Ask Vicki Divoll if you don’t believe me.) So here goes. 

The Hamilton Report

The genesis of the Hamilton Report was a resolution adopted by the Senate in May 1792, which is quoted in full below:

Ordered, That the Secretary of the Treasury do lay before the Senate, at the next session of Congress, a statement of the salaries, fees, and emoluments, for one year, ending the first day of October next, to be stated quarterly, of every person holding any civil office or employment under the United States, (except the judges) together with the actual disbursements and expenses in the discharge of their respective offices and employments for the same period; and that he do report the name of every person who shall neglect or refuse to give satisfactory information touching his office or employment, or the emoluments or disbursements thereof.

1 Journal of the Senate of the United States of America 441 (May 9, 1792), bit.ly/2rQswt8.

Some nine months later, on February 26, 1793, the Treasury Department gave birth to a 90-page handwritten manuscript entitled “Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States.” If you would like to see an excerpt of the original handwritten document (and why wouldn’t you?), it may be found at bit.ly/2rQCDxX.

Submitted under the signature of Secretary Hamilton himself, the Hamilton Report begins as follows:

    The Secretary of the Treasury, in obedience to the order of the 7th of May last, respectfully submits herewith sundry statements of the salaries fees and Emoluments for one Year ending the first of October 1792, of the Persons holding civil offices or employments under the united States (except the Judges) as far as Returns have been rendered—together with the disbursements and Expenses in the discharge of their respective offices and employments for the same Period.

Tillman emphasizes that because the Senate demanded information regarding every person holding civil office or employment under the United States, the Hamilton Report’s omission of the president, vice president or members of Congress shows that these elected officials did not hold such offices (in Hamilton’s view). See Amicus Br. at 18-19. The Hamilton Report, however, does not use the word “every,” but only purports to include information on persons “as far as Returns have been rendered.” The appendix (no. 19) listing “the Persons of whom no information has been received” also does not use the word “every.” Perhaps the word “every” in this appendix is implied, but given the stress Tillman places on its use in the Senate resolution, its absence from the Hamilton Report is worth noting.

We should also consider the possibility that the omission of the president and the vice president from the Hamilton Report was an error or oversight. It is easy to imagine how this might have happened. Responsibility for collecting information responsive to the Senate resolution was delegated to unknown official(s) in the Treasury Department. It might never have occurred to these subordinates to make inquiry of President George Washington or Vice President John Adams or they may have assumed (entirely reasonably) that they were not authorized to do so. Perhaps everyone involved in compiling the report assumed that someone else would take responsibility for this issue. It happens.

Tillman attempts to discount this possibility by submitting expert testimony regarding Hamilton’s character. According to Professor Stephen Knott, a political scientist and Hamilton expert, Hamilton was “inherently incapable of leaving the President and Vice President off a list as an oversight.” Knox Decl. ¶ 7. Hamilton was a “careful lawyer” with “a fastidious attention to detail,” who “simply would not have left individuals off a list by accident.” Id.

No doubt Professor Knott is right about Hamilton’s attention to detail and concern for accuracy, but it seems a bit much to claim that everything that Hamilton ever wrote, much less every report he signed off on, was error-free. For this proposition, I cite no less an authority than Professor Tillman himself. See Seth Barrett Tillman, The Federalist Papers as Reliable Historical Source Material for Constitutional Intepretation,105 West Va. L. Rev. 601, 603-13 (2004) (pointing out various errors in the papers authored by Hamilton and suggesting, presumably tongue in cheek, that they would not meet the Harvard Law Review’s standards for publication).

There are other plausible explanations for the omission, moreover. For example, Hamilton may have construed the Senate resolution narrowly for reasons having little or nothing to do with its text. It is worth noting here that the Senate resolution was not a law, but an order from the Senate to Secretary of the Treasury Hamilton. Thus, one should expect that Hamilton and his staff would read the resolution the way you might read a directive from your boss or client, rather than the way a lawyer might parse the words of a statute. If the Treasury Department was uncertain about what the resolution required it to do, it most likely would have consulted directly with the Senate and/or used common sense based on its understanding of what the Senate was trying to accomplish.

As an example, the resolution states that responsive information is to be “stated quarterly,” but the Hamilton Report presented the information on an annual basis. (The full Hamilton Report is only available at the National Archives so I am basing my comments on excerpts that are available online). Presumably Hamilton and/or those who drafted the report did not see any point in reporting an annual salary in four quarterly amounts and were not concerned about literal compliance with the Senate resolution.

Similarly, Hamilton might have decided not to include the president and vice president in his response even if he believed that the literal terms of the Senate resolution so required. For one thing, he may have questioned the Senate’s authority to compel him to make inquiry of the president. Congress’s authority to obtain information directly from the president was an unsettled and delicate matter in 1792 (as it remains to some degree today). The traditional protocol, reflected in resolutions of inquiry, was for the House or Senate to “request” information from the president but to “direct” department heads to produce information. For the Senate to order the Secretary of the Treasury to obtain financial information from President Washington and to report any refusal or failure to cooperate on Washington’s part to the Senate would seem, at the very least, to push the bounds of protocol and constitutional propriety. Perhaps more importantly, interpreting the Senate resolution in such a fashion risked putting Hamilton in an untenable position if the president declined to cooperate.

In short, it is entirely possible that Hamilton omitted the president and vice president from his report for entirely pragmatic “non-legal” reasons. You don’t have to take my word for this. Tillman’s own expert suggests that information on the salaries of elected officials could have been omitted because Hamilton thought “Congress was well aware of these payments.” Kaminski Decl. ¶ 13.

Another theory offered by legal historians aligned with the plaintiffs is that the purpose of the Senate resolution was to obtain information related to a different emoluments clause in the Constitution, namely art. I, § 6, cl. 2, which provides that “[n]o Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office . . . the Emoluments whereof shall have been encreased during such time.” Since this purpose would not have required information about the salaries of the president or vice president (as these are not appointed offices), the historians suggest that Hamilton may have “initially focused his list for his immediate practical task.” Speculation, to be sure, but there is no particular reason to favor Tillman’s speculation over any other.

For sake of argument, however, let’s assume that Hamilton did in fact approach the interpretation of the Senate resolution as a “careful lawyer” would read a statute. In other words, Hamilton (or his staff) would have read the Senate resolution and first attempted to discern the meaning of the phrase “civil office or employment under the United States (except the judges).” If this phrase were unambiguous, then it would be the duty of the Treasury Department to comply with the Senate’s unambiguous directive, unless so interpreted the directive would violate the Constitution. As already noted, it is plausible that the Treasury Department could have viewed a directive to interrogate the president and vice president as a violation of separation of powers or otherwise unconstitutional. Since we have no evidence that Hamilton refused to comply with the resolution on constitutional grounds, however, we will discount this possibility.

But how could Hamilton have read the resolution as unambiguously excluding the president and vice president (or members of Congress, for that matter)? Tillman contends that the phrase “office under the United States” was a legal term of art that excluded elected officials. Amicus Br. at 20. But even if that were true (which we will consider momentarily), the resolution also uses the term “employment,” a term which did not have a technical meaning and was not used in the Constitution. As a textual matter, therefore, it seems entirely reasonable to read the Senate resolution as seeking information regarding every federal official, except for military personnel and judges. If Hamilton construed the resolution more narrowly, it almost certainly was for reasons other than the text alone.

If Hamilton considered the text of the Senate resolution to be ambiguous, it is not terribly difficult to see why he might have concluded that it was not intended to cover legislators. The resolution requires the Secretary of the Treasury to interrogate every covered official and to “report the name of every person who shall neglect or refuse to give satisfactory information” regarding his compensation and expenses. It exempts judges, presumably because of separation of powers considerations. Similar considerations, not to mention self-interest, would likely have led the Senate to exclude its own members from the scope of the Secretary’s work. Moreover, interpreting the resolution to apply to members of the House would have resulted in a serious breach of comity between the two houses. Indeed, it is not at all obvious that the Senate has the constitutional authority to interrogate members of the House, either directly or through the Secretary of the Treasury.

Similarly, if Hamilton thought the Senate resolution was ambiguous with regard to its application to the president and vice president, he would have had plausible constitutional reasons, as already discussed, to construe the resolution narrowly. Thus, even assuming that the president and vice president were deliberately excluded from the Hamilton Report and that this exclusion was based on a formal legal analysis of the resolution (as opposed to political/pragmatic reasons or informal guidance from the Senate or the president himself), the most one can conclude is that the language of the resolution was ambiguous in this regard.

Moreover, that ambiguity would not necessarily focus on the words “office or employment under the United States.” Hamilton might have considered these words to clearly encompass the presidency, but he may have determined that the use of the word “civil” created an ambiguity because the president serves as commander in chief. See U.S. const., art. II, § 2, cl. 1. We simply do not know.

But what of Tillman’s claim that the term “office under the United States” was a term of art that excluded elected officials? See Amicus Br. at 20. One problem with this is that Tillman has no direct evidence of any kind to support this proposition. What he does have is a strong argument that “office under the United States” does not apply to members of Congress because the phrase must be read in the historical context of the British “Office under the Crown,” a term that did not apply to members of Parliament. There is, however, no reason to generalize from this exclusion to a broader exclusion of all elected officials.

In fact, there are several reasons not to make this logical leap. The reason that members of Parliament do not hold “offices under the Crown” is that (1) they hold seats, not offices and (2) they are not part of the executive branch of the government that is “under the Crown.” The fact that they are elected is not determinative. If it were, then members of the House of Lords would hold offices under the Crown, something that neither Tillman nor anyone else has claimed. See 8 Annals of Congress 2291 (“A member of the House of Lords, no member, no writer, no speaker ever denominated an officer of the Crown or Government.”) (Rep. Ingersoll). Moreover, when members of Parliament are appointed to positions in the executive branch (eg, prime minister, chancellor of the exchequer), they do hold offices under the crown, despite the fact that they are elected officials.

Similarly, if Tillman were correct, elected officials in the executive branch of state government would not be encompassed within state constitutional provisions applying to “offices under this state” or similar phrases. Although Tillman has acknowledged that this is the implication of his position, he has offered no evidence that any state has reached that conclusion, either prior to the adoption of the Constitution or since. What evidence I have found (without having exhaustively researched the issue) points in the opposite direction.

Even as to members of Congress alone, it seems doubtful that Hamilton could have reached the conclusion that the Senate resolution unambiguously excluded them from its terms. There was undoubtedly in1792 a strong textual argument, as just noted, for the proposition that federal legislators are not “officers of the United States” and do not hold “offices under the United States.” Recall, however, that several years later these issues would be vigorously debated in the House and Senate during the impeachment and subsequent trial of Senator Blount. If they were not settled in 1797-99, they presumably were not settled in 1792-93. And even if it had been settled that members of Congress did not hold a “civil office under the United States,” it is hard to see how Hamilton could conclude that the Senate’s use of the broader term “employment” unambiguously excluded legislators.

Finally, let us consider the views of Tillman’s own expert on this subject:

    In Hamilton’s day, some, perhaps many (but certainly not all) understood and used the phrase office under the United States (and its close textual variants) to include those officers who went through the Appointments Clause process of presidential nomination, Senate advice and consent, and presidential appointment, or to other lesser officers, such as those who only received presidential commissions (e.g., inferior officers). Office under the United States did not extend to elected officials. In my professional judgment, Hamilton’s roll of officers . . . is consistent with what was one strand (perhaps the prevailing strand) of the contemporaneous (that is, circa 1793) public understanding of office under the United States.

Bolling Decl. ¶ 16. If we accept Professor Bolling’s view, Hamilton would only have interpreted the “office under the United States” language in the Senate resolution as unambiguously excluding elected officials if (1) Hamilton was one of the “some, perhaps many” who understood the term to exclude such officials and (2) Hamilton was unaware of the fact that “certainly not all” used the term in this way. We can no more than guess at the first, but the second seems rather unlikely.

In short, there is no way of knowing whether the Hamilton Report’s omission of the president and vice president was a deliberate decision, rather than an error or oversight, whether Hamilton himself made the decision if there was one, or whether the hypothetical decision was based on a legal interpretation of the term “office under the United States.” We can, however, say that it is highly unlikely that any interpretation was premised on the belief that the term in question unambiguously excluded the president and vice president.

The ASP Version

But wait, there’s more. As I mentioned at the beginning, there is a second version of the Hamilton Report. See 1 American State Papers/Miscellaneous 57 (1834). This document is entitled “List of Civil Officers of the United States, Except Judges, With Their Emoluments, for the Year Ending October 1, 1792,” and, like the Hamilton Report, it purports to be a response from Hamilton to the Senate resolution and bears the same date, February 26, 1793. Its opening paragraph is identical to that quoted from the Hamilton Report earlier, with some spelling and punctuation differences.

Tillman refers to this second version as the “Condensed Report,” for reasons we will get to in a moment, but I will refer to it as the “ASP Version” (referring to the fact that it was published in American State Papers and likely prepared for that purpose). In his initial amicus brief, Tillman describes the ASP Version as “an entirely different document” from the Hamilton Report. Amicus Br. at 19 n.76. However, Tillman also has referred to the ASP Version as “nearly identical” to the Hamilton Report. See Seth Barrett Tillman, Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications, 5 Br. J. Am. Leg. Studies 95, 108-09 n.33 (2016). In his proposed amicus brief, Tillman calls the ASP Version a “scrivener’s copy” and “the antebellum equivalent of a photocopy” of the Hamilton Report. Proposed Amicus Br. at 4-5.

Some background may be helpful here. American State Papers resulted from an act of Congress. On March 2, 1831, in response to a proposal from the private printer, Gales & Seaton, Congress authorized by law the preparation of a compilation of congressional documents from the first 13 Congresses. The act required the Secretary of the Senate and Clerk of the House to direct the selection of the documents to be included in this compilation.

The Secretary of the Senate and Clerk of the House regarded the production of ASP as a matter of the utmost importance, as they explained in some detail in a formal communication to Congress (published in the Introductory Notice to ASP). They viewed it as essential that congressional staff, rather than Gales & Seaton, be responsible for all aspects of the work other than the physical printing of the volumes. The original documents were from the archives of the two Houses, and “[c]harged as we are, with the care and preservation of all these important documents, we could not, for a moment, permit them to go into the hands of those over whom we had no control.” Instead, the work had to be done “by the most patient, persevering industry of the most able of our assistants, and of ourselves”:

From all these considerations, it was evident to us, that, if we acted at all under the act of Congress, it was our duty to assume the whole responsibility of editing the work. Other considerations . . . led us to the same conclusion. We stood in an official relation to the two Houses, and had every possible motive to devote our entire ability to the proper completion of the work. From long experience, and close application to the business of Congress, we had a reasonable confidence in our ability to do the work justice. We had under our direction able and industrious men, and whose experience in these things were even greater than our own.

So while it may be true, as Tillman says (Amicus Br. at 19 n. 76), that the ASP Version was prepared by “an unknown Senate functionary,” there is every reason to believe that it was prepared carefully by an expert congressional archivist, acting under the close supervision of the Secretary of the Senate. There is no reason to compare its preparation unfavorably with that of the Hamilton Report itself, which after all was prepared by an unknown Treasury functionary, not by Hamilton personally.  See Kaminski Decl. ¶ 16 (the Hamilton Report, though signed by Hamilton, was written by a “scrivener”).

As best I can tell, there are two noteworthy differences between the Hamilton Report and the ASP Version. First, the ASP Version is somewhat abbreviated or condensed compared to the Hamilton Report. As Tillman’s experts convincingly argue, this is most likely because the ASP Version was prepared circa 1833 in accordance with a specific order of the Secretary of the Senate to prepare a condensed version for publication in ASP. See Kaminski Decl. ¶¶ 16-17; Martin Decl. ¶ 15. Thus, for example, the ASP Version does not include Annex 19 of the Hamilton Report, which contained a list of “the Persons of whom no information has yet been received on the subject.”

The second difference is the most significant for present purposes. The ASP Version, unlike the Hamilton Report itself, includes both the president and vice president (though not members of Congress) in its list of “persons holding civil offices or employments under the United States.” Indeed, the very first entries in the ASP Version list are President George Washington (and his annual salary of $25,000) and Vice-President John Adams (with his annual salary of $5,000).

But even though the ASP Version was not signed by Hamilton and was prepared well after his death, it still has significant probative value with respect to the meaning of the Hamilton Report itself. Interestingly, none of Tillman’s experts attempt to address the question of why the Secretary of the Senate and his staff would have added these entries to the ASP Version. After all, their task was to faithfully replicate the documents contained in the congressional archives (as the Secretary and Clerk note in the Introductory Notice, ASP provides “the future historian [with] a body of authentic materials”). How would adding information omitted from the original Hamilton Report accomplish this objective?

One plausible explanation is that there was additional documentation in the Senate files to show that the Treasury Department did consider the president and vice president to hold “civil office or employment under the United States” within the meaning of the 1792 Senate resolution. For example, there could have been subsequent correspondence from the Treasury Department with the information that was added to the ASP Version. The original documentation may have been lost or destroyed in the process of preparing ASP. See Bowling Aff. ¶ 15 (noting that a number of original documents were lost during this process).

The only other plausible explanation would be that the congressional officials responsible for preparing ASP thought it so obvious that the president and vice president should have been included in the Hamilton Report that adding them was a mere ministerial correction to the original. Since the purpose of ASP was to preserve and publish authentic materials from the congressional archives, it seems highly unlikely that they would have made changes merely because they disagreed with a judgment made by the original authors.

In either case, the Secretary of the Senate and his assistants must have been convinced that Hamilton (or the “scrivener” who prepared the original report) did not deliberately omit the president and vice president from the Hamilton Report because he deemed these offices to be non-responsive to the Senate resolution. Of course, they might have been wrong in their view. But given that these congressional officials had access to more documentation, had greater understanding and expertise with regard to the congressional files and were far closer in time to the Hamilton Report, it is difficult to see how anyone today could reach a different conclusion. Notably, Tillman’s experts do not do so.

Conclusion

To make a short story long, I fail to see how the Hamilton Report helps Tillman’s theory. Standing alone, it provides evidence that Hamilton or someone working for him omitted the presidency and vice presidency from a list of “offices under the United States” in 1793. It cannot, however, tell us why the omission occurred and therefore we cannot know whether that reason had any relevance to the meaning of the FEC. The ASP Version, for reasons we have discussed, undercuts any minimal probative value that the Hamilton Report might otherwise have had.

Even if we accept every inference and resolve every doubt in Tillman’s favor, the most one can say is that the Hamilton Report is consistent with the proposition that the phrase “office under the United States” in 1793 did not unambiguously include the president and vice president. See Bolling Decl. ¶ 16. But accepting this proposition would still be a long way from showing that the framers intended, when they wrote the FEC in 1787 (by taking the operative language verbatim from the Articles of Confederation), to exclude the president and vice president from its terms.

Leave a Reply