Saturday, September 28, 2019

The 2018 Seegers Lecture: Emoluments and President Trump

John Mikhail

Emoluments are back in the news, as Donald Trump’s conversation with Volodymyr Zelensky confirmed what every foreign diplomat in Washington understands: relations with the United States must now confront the reality of a cash register presidency.  The timing of this latest revelation coincides with the publication of my 2018 Seegers Lecture, which is now posted to SSRN.  In addition to discussing the three lawsuits against President Trump still pending in federal courts, I used this opportunity to publish some of my Balkinization posts on emoluments over the past few years (see, e.g., here, here, here, and here), as well as some new research on this topic.  Here is the abstract:

The topic of my 2018 Seegers Lecture at Valparaiso University Law School was the original meaning of “emolument” and its implications for President Trump. In this expanded version of those remarks, I begin by discussing the Constitution’s Emoluments Clauses and describing the three emoluments lawsuits against the president currently making their way through the federal courts. I then highlight one of the main points of contention in these lawsuits, which is the constitutional meaning of the term “emolument.” Next, I describe some of the efforts my colleagues and I have made to investigate the historical meaning of this term and explain how our research may impact these cases. Finally, I discuss the landmark decision by a federal district court in July 2018, which held that “emolument” is a broad term referring to “any ‘profit,’ ‘gain,’ or ‘advantage,’” including profits from ordinary market transactions. A second federal judge recently denied the president’s motion to dismiss on similar grounds, setting the stage for what seems likely to be a pivotal issue on appeal or in any impeachment proceedings against the president. For convenience, this essay also gathers in one place every use of "emolument" in The Federalist and Blackstone's Commentaries and every definition of "emolument" in English language and legal dictionaries from 1523-1806.

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