Thursday, March 28, 2019

Some Thoughts on Last Week's Fourth Circuit Argument in MD/DC v. Trump

John Mikhail

Last week, the U.S. Court of Appeals for the Fourth Circuit heard arguments in connection with President Trump’s petition for mandamus in the emoluments lawsuit brought against him by Maryland and the District of Columbia.  Although the hearing did not go particularly well for Maryland/DC, many of the concerns raised by the court are not troubling and can be easily addressed.

Much of the conversation focused on what injunctive relief the plaintiffs seek. In my view, the best answer to this question does not involve divestment or a blind trust, which are alternately excessive or inadequate for the reasons highlighted by the court.  Instead, the best answer is a narrowly tailored injunction ordering the Trump Hotel in Washington, DC, to stop accepting payments from foreign governments.  The Trump Organization has affirmed that it is already keeping track of these payments in order to donate the profits from them to the U.S. Treasury. So in addition being directly tied to the alleged constitutional violation at issue, this relief would be both practical and administrable.

Judge Dennis Shedd questioned whether the Trump Hotel could comply with such an order without violating anti-discrimination laws. That question is easily answered, however, and poses no substantial difficulty. The supposed “discrimination” arising from treating emoluments from foreign governments differently than other receipts is required by the Constitution. Any statutes which conflict with this requirement must give way under the Supremacy Clause.  Per Judge Shedd’s question, there also would be no credible basis for excluding “all foreigners” from the Trump Hotel in the first place in order to comply with an injunction to stop violating the Constitution.

Several of the judges asked whether the plaintiff’s broad definition of “emolument” would imply that profits from U.S. Treasuries would violate the Domestic Emoluments Clause. In my judgment, MD/DC gave the right answer to this question, but supplied the wrong reason.   

Profits from U.S. Treasuries do not violate the DEC because, unlike the Foreign Emoluments Clause, the DEC is probably best construed to refer to emoluments received by the President for his services as President.  The DEC reads: “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”  The last part of the clause can plausibly be read to include a tacit repetition of the phrase “for his services” after the word “receive.” In other words, the clause can be interpreted like this:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive [for his Services] within that Period any other Emolument from the United States, or any of them.”

On this reading of the DEC, many of the examples that are often thought to be the most difficult cases for the plaintiffs to explain—including profits from U.S. Treasuries—are not difficult at all because they fall outside the scope of that clause.  State pension benefits (Ronald Reagan), naval retirement benefits (JFK), and land purchases from the US government at a public auction (George Washington) would also fall into this unproblematic class of cases. Even if one adopts a broad definition of the term “emolument,” none of these benefits was received by the President "for his services" as President.  Thus, they are not covered by the DEC, on this interpretation of its proper scope. 

To clarify, I should note that reasonable minds can differ on how to construe the DEC.  Whether or not the reading I have offered is the best overall construction of its ambiguous language, at a minimum it deserves to be brought to the court’s attention as a plausible alternative basis on which to address the alleged difficulties with a broad interpretation of the term “emolument.”

The President’s most important new argument is jurisdictional. He now claims Maryland and DC have no cause of action under the Constitution, nor any such authority granted by Congress.  This argument seems questionable on historical grounds, especially in light of the early practice of the Supreme Court, which recognized jurisdiction in cases such as Oswald v. New York, Chisholm v. Georgia, Hollingsworth v. Virginia, and Georgia v. Brailsford.  If the President is correct that the Constitution provides neither a cause of action nor jurisdiction in MD/DC v. Trump, then cases like these presumably should have been dismissed on that basis. Yet that did not happen. 

Many important founders were among the lawyers and judges who participated in these early cases, including two men—Edmund Randolph and James Wilson—who actually drafted Article III.  Is it President Trump’s position that these founders did not understand the jurisdiction of US courts? Does he think States can be sued in equity, but cannot bring suit in turn?  Article III states: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution … [and] to Controversies … between a State and Citizens of another State.” What rule of law prevents MD/DC from suing Donald J. Trump on this basis?  The Fourth Circuit should have asked the President these and other questions that go to the heart of his bold assertions about jurisdiction and presidential immunity.  Instead, the panel tossed his lawyers one softball after another.

My final observation concerns the text of the Foreign Emoluments Clause, which presiding Judge Paul Niemeyer read aloud at the start of the hearing. Notably, Judge Niemeyer misquoted the FEC, omitting what for purposes of this lawsuit are its four most important words: “of any kind whatever….”

The FEC is virtually unique among constitutional clauses because it uses the word “any” no fewer than four times. In effect, it says: Without Congress’s consent, no one holding any office of profit or trust under the United States shall accept any emolument of any kind whatever from any foreign government.  The broad sweep of this clause is unmistakable. It reflects the framers’ deliberate decision to draw a bright line around both the reality and the appearance of corruption, conflicts of interest and undue foreign influence, which only Congress is authorized to modify.

In light of the historical evidence of how “emolument” was actually used at the founding (see, e.g., here, here, here, and here), the ban on accepting “any…emolument…of any kind whatever” makes any serious original public meaning defense of the President's interpretation of the FEC exceedingly difficult.  Yet President Trump - who has made appointing originalist judges a centerpiece of his administration – was not asked any hard questions about the original meaning of “emolument,” either. This kid gloves treatment contrasts sharply with how the Fourth Circuit panel treated the lawyers for MD/DC.

All told then, last week’s hearing was not a good showing by the Fourth Circuit of its willingness to take seriously the text, structure, and history of the Constitution and to carefully consider the President’s conduct on that basis.  Instead, it appeared to be yet another illustration of the “cafeteria originalism” which often seems to guide certain lawyers and judges, who embrace public meaning originalism, founding-era dictionaries, and the like whenever it suits them, but who seem indifferent to the original Constitution on other occasions.

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