Law

Since 2008, I have argued in multiple publications that the Foreign Emoluments Clause’s Office-language (and closely similar language in other constitutional provisions) reaches only appointed federal officers, and not any elected federal officials, including the presidency. My position has not gone entirely unnoticed; indeed, it has even occasioned some firm and thoughtful opposition. My goal in this Article is not to illustrate the full spectrum of views opposing my position on the subject. There are far too many such views—many of which contradict one another—many of which (do not appear to) have gone through any sort of independent review process, by student editors, by peer review, or otherwise. Instead, my more modest goal here is to illustrate how deeply idiosyncratic some of these views are—not merely in their conclusions, but more importantly in their broad methodological approach.

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First, the commentators above (along with other commentators) believe their position carries a strong presumption of correctness (if not certitude), that it is my duty to displace that presumption, and that they will be the judges if I have carried that burden. Certainly, I have never agreed to such terms for this debate. Nor should I. The text of the Constitution does not expressly state that the Foreign Emoluments Clause applies to the President. The text of the Constitution does not expressly define the scope of the Constitution’s “Office of Profit or Trust under [the United States]” language. The Supreme Court has had no occasion to address the scope of the clause or the meaning of the clause’s operative language (or even the scope of similar language in other clauses.). As educated generalists who have chosen to recently inject themselves into this debate, their opinions should get a hearing. I would add: so should mine. And since, what is involved here is a debate between opinions lacking firm judicial support, our divergent ideas (and we) meet as equals. I add that the Legal Historians are supporting the plaintiffs in active litigation. Generally, in civil litigation, the burden of proof, production, and persuasion falls on the plaintiff, not on the defendant.
 
Second, it is time for my intellectual opponents to be fair. Claims that they have made that they know or now know to be incorrect should be withdrawn or revised. Claims that they have made asserting the existence of documentary support, should be supported, and promptly, with actual documents—or else the claims should be withdrawn. If they have to go through this process repeatedly, they might ask themselves if their position (and expertise) is really as strong as they have led themselves and others to believe.
 
Third, it is time for my intellectual opponents to be forthcoming in regard to an improved debate and debate atmosphere—an atmosphere rooted in mutual respect and goodwill…

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Arguments progress:

On January 25, 2018, Judge Messitte held oral arguments in Greenbelt, Maryland. Blackman attended. The very first question from the bench referenced our amicus briefs, and asked the parties to address whether the Maryland Complaint concerns actions taken in the President’s official or individual capacity. Over the course of nearly five hours of argument time, counsel for the State of Maryland and the District of Columbia maintained that Trump’s receipt of (purported) emoluments concerned his official capacity. But once confronted by skeptical questions from the bench, Plaintiffs volunteered to amend their complaint to bring claims against the President in his individual capacity.
 
Judge Messitte did not order the Plaintiffs to amend their complaint, but during the hearing, counsel for Plaintiffs represented that they would do so in due course, presumably through a Rule 15 motion. At the hearing, the Justice Department did not indicate that it would oppose such a motion—rather, the Government suggested that it would file a new motion to dismiss. In short, the Maryland action, which had been set either to be dismissed or to proceed onto discovery, now sits in limbo awaiting a Rule 15 motion to amend, a new round of briefing on a motion to dismiss (and possibly in regard to the Rule 15 motion too), and, presumably, a new oral argument on the revised motion to dismiss (and, perhaps, also in regard to the Rule 15 motion). Moreover, all Plaintiffs have to do, to move the litigation into its new “path,” the obvious direction it should always have been in, is to change the Complaint’s caption and the 1-page prayer for relief; yet, it is now more than a week later, and still no amended complaint has been filed.

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