Historical Practice and the Applicability of the Foreign Emoluments Clause to the President

I want to return briefly to the question ¬†whether the president holds an “Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (FEC). As far as I know, no judge in any of the three emoluments cases has expressed any support for the theory, pressed by Professors Tillman and Blackman in various amicus briefs, that the president does not hold such an office and therefore is not subject to the FEC. Nonetheless, the argument seems to have gained some traction in the legal academy, enough that Judge Rao, during the Mazars oral argument, referred to a dispute or debate among legal scholars on the subject.¬†For that reason, I think it is worth calling attention to a congressional report that I recently came across which is of some relevance to this debate and which (again, as far as I know) has not been previously mentioned in that connection.

As background, you may recall that a key element of the Tillman/Blackman theory is that early presidents accepted gifts from foreign governments that allegedly would have been proscribed by the FEC if that clause applied to the president. The fact that these presidents accepted such gifts without seeking congressional consent, the argument goes, constitutes compelling evidence of the clause’s original meaning.

One might ask, though, why would this be so? Assuming that presidents accepted gifts otherwise proscribed by the FEC, this could reflect (1) lack of awareness of or attentiveness to the FEC; (2) a deliberate decision to ignore the FEC; or (3) a sincere but mistaken view the FEC did not apply to the presidency. It is not obvious why the facts as described by Tillman and Blackman should be given any particular weight in ascertaining the meaning of the FEC. Cf. Comm. on the Judiciary, U.S. House of Representatives, v. McGahn, No. 19-cv-2379, slip op. at 98 (D.D.C. Nov. 25, 2019) (“It goes without saying that longevity alone does not transform an unsupported notion into law.”). Continue reading “Historical Practice and the Applicability of the Foreign Emoluments Clause to the President”