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Scholar Digs For What ‘Emoluments’ Really Means



The Washington Post
Friday, July 27, 2018

Washington — Just 10 days before his inauguration, Donald Trump called a news conference in New York to deal, among other things, with mounting questions about how he would separate his presidency from his vast business interests, including the new Trump International Hotel in Washington, and avoid violating the Constitution’s emoluments clause.

It was a rambling affair. He railed about Hillary Clinton, “fake news,” the Russia “witch hunt” and the “nonsense that was released” by intelligence agencies — before finally getting to the point. He introduced a lawyer, who hauled out stacks of folders, which Trump described as “some of the many documents that I’ve signed turning over complete and total control” of his businesses to his sons.

The lawyer, Sheri Dillon, then explained how, even though Trump would be receiving income from his business empire, the Constitution’s emoluments clause would not be a problem. The provision, Article I, Section 9, Clause 8, bars federal officeholders from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”

But by Dillon’s standards, it did not apply to emoluments “that have absolutely nothing to do” with the office of president: that is, to transactions connected with a president’s private business.

The president’s lawyers would later elaborate with a similarly narrow definition of the clause. It applies only to foreign benefits “conferred that arise from services rendered to a foreign state” by the president “in his or her official capacity,” they argued in a brief. The clause is “office-and-employment-specific.” In other words, it bars only payments or presents or other emoluments given the president in connection with a decision he might make as president.

That would take Trump off the hook for, say, foreign payments to his hotels from which he profited because he did not get them in his “official capacity.”

It was for some a little too convenient, sending them scurrying to dictionaries for a definition of “emoluments,” since neither the framers of the Constitution nor the justices of the Supreme Court have provided one.

Among the seekers was John Mikhail, a law professor with a doctorate in philosophy and dean at the Georgetown University Law School. But while reporters, for example, tended to look it up in Merriam-Webster, Mikhail went to dictionaries available to the framers of the Constitution in 1787, which is what litigants do when trying to figure out what the Founding Fathers meant.

But Mikhail didn’t stop at a few dictionaries. With the aid of a Georgetown law student, Genevieve Bentz, he embarked on a lexicological odyssey into dozens of long-forgotten dictionaries, published over a 200-year period before 1806, 40 regular dictionaries and 10 legal dictionaries.

The research yielded a very different, much broader definition than that put forward by Trump’s lawyers. “Every English dictionary definition of ‘emolument’ ” from 1604 to 1806″ uses a “broad definition,” including “profit,” “advantage,” “gain,” or benefit,” he wrote in his paper describing the research.

As to the “office- and-employment-specific” interpretation by Trump’s team, Mikhail wrote, “over 92 percent of these dictionaries define ‘emolument’ ... with no reference to ‘office’ or ‘employment.’ ”

In other words, by his research, the emoluments clause would bar any benefit or profit to a president via a foreign state, whether in his capacity as president or in any other role, such as the owner of a hotel. It would, specifically, cover Saudi Arabia or Kuwait renting out space at the Trump International Hotel in Washington.

“I sort of felt like I had them in the crosshairs,” he told the Washington Post Thursday.

He did.

On Wednesday, Mikhail’s labors paid off. In a historic decision, U.S. District Judge Peter Messitte in Greenbelt, Md., ruled that a suit brought by the District of Columbia and Maryland could go forward instead of throwing it out as the administration desired.

He cited, in part, what he called the “exhaustive” research of Mikhail, mentioning him by name 17 times.

And while citing numerous other factors, the judge’s choice of definition proved crucial to the ruling, the first on the meaning of the Constitution’s emoluments clauses (There are two, one covering domestic gain, the other foreign).

The judge noted that Mikhail’s dictionary research was more extensive than that of the president’s lawyers, covering “virtually every founding-era dictionary.” Citing Mikhail again, he said, “the President’s definition appears in less than 8 percent of these dictionaries” versus 92 percent for the broader meaning.

“The clear weight of the evidence,” wrote the judge, “shows that an ‘emolument’ was commonly understood by the founding generation to encompass any ‘profit,’ ‘gain,’ or ‘advantage.’

“Though the Court agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains remarkable that (quoting Mikhail) “every English dictionary definition of ‘emolument’ from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief.”

Accepting the broader definition, everything else fell into place.

If the emoluments clause referred narrowly to compensation for official services, as Trump argued, that would make it a bribery clause.

A violation would therefore be almost impossible to prove, since bribery entails a quid pro quo. As the plaintiffs noted, he said, it didn’t make sense “that the Framers would have wanted to leave a large loophole that would preclude the (emoluments) Clause from accomplishing any meaningful purpose.”

Plus, the founders listed bribery among the crimes for which a president can be impeached. Why would they do that if it was covered by the emoluments clause?

Another thing that didn’t make sense: the foreign emoluments clause allows a president to accept things of value with the consent of Congress, he recalled. He said he doubted that the Founding Fathers would tolerate bribery of the chief executive as long as Congress said it was OK.

“It seems highly unlikely that the Framers would have intended bribery to be both an impeachable offense and, at the same time, an activity Congress could consent to when a foreign government donor is involved. The President makes no attempt to come to terms with this anomaly.”

Mikhail’s research was a massive undertaking, possible only because the old dictionaries are available not just in musty libraries anymore but on the Internet. A task of perhaps 15 years with journeys to scores of libraries could be achieved in a matter of weeks.

Mikhail told the Post he and Bentz “worked feverishly night and day,” using online databases to dive into works like Thomas Blount’s Glossographia, published in 1656; Samuel Johnson’s A Dictionary of the English Language, published in 1753; James Barclay’s A Complete and Universal English Dictionary, published in 1774 and dozens more, including the standard legal dictionaries of the era.

From these, Mikhail would ultimately produce blog posts at Balkinization, which were widely referenced by other legal blogs, followed by a carefully researched paper, followed by a joint amicus brief summarizing his findings, which was submitted to the court.

The government, he told the Post, was trying “to suggest that the meaning of the term emolument is tethered to an office — that was their term. ... I already knew that a lot of dictionaries said otherwise, and had a pretty strong inclination that if I dug deeper into dictionaries it would continue to validate that fact. And that’s what we did.”

It’s by no means the end of the line. It was not a ruling on the merits. An appeal is likely. But Mikhail’s mining of a question never answered by the Supreme Court is likely to remain at the forefront of the litigation.

“It certainly was gratifying,” Mikhail told the Post Thursday, crediting his researcher as well as his collaborators on the amicus brief, Jack Rakove, Gautham Rao, Simon Stern and Jed Shugerman.

“I was obviously quite pleased for the issues to be resolved in the way that they were. I had a kind of a sense that he might come down this way,” having attended oral arguments. “But I didn’t really didn’t expect that he would do so so strongly. He really did embrace the theory that I had been proposing.”