George Washington Did Not Violate the Domestic Emoluments Clause

George Washington Did Not Violate the Constitution’s Domestic Emoluments Clause with his 1793 District of Columbia Land Transactions Jonathan Hennessey I. Introduction When the delegates to the 1787 Philadelphia Convention met for the debates out of which the U.S. Constitution emerged, they didn't just bring with them their grievances with monarchy and with history's variously compromised iterations of democracy and republicanism. Many of those we hail as Founding Fathers were personally bitter about far more recent political arrangements. Even relatively just and enlightened ones. Benjamin Franklin was among those who identified themselves as eyewitnesses to abuses of power and self-dealing within the Colonial Era governments of which Americans tended to be so proud. Franklin wanted to see good government take root in the states. Of course he desired that America's leaders be virtuous and disinterested. And Franklin would express particularly strong opinions about the individual who would occupy the office of the president. The elderly polymath felt that, through his own experience with official corruption, he had earned the right to stand up, speak out, and ensure that set down in the Constitution would be practicable measures to guard against presidents who would use the office for personal gain. "I have lived long enough to intrude myself on posterity," Franklin jocularly asserted.1 It was June 4, 1787. Franklin proceeded to dust off a telling example of a deeply extortionate executive magistrate with whom he had repeatedly locked horns during the French and Indian War. General George Washington, presiding over the convention, had been personally entwined in the grander aspects of that event. The 1754–1763 conflict had made Washington both an international failure and an international hero. What's more, Washington's trans- Allegheny soldiering experience had also stoked the fires of his lifelong mania for further enriching himself by accumulating land. Benjamin Franklin's involvement in the French and Indian War had ranged from establishing postal routes and roads between Philadelphia and the British expeditionary force's combat outposts, and helping the army secure horses, wagons, drivers, and other supplies. But for Franklin, one obstacle proved to be as obdurate as the unthinkably dense old-growth forest that stood between the Anglo-American cannons and the distant prize of French Fort Duquesne. That obstacle was Pennsylvania Governor Robert Hunter Morris. (This is a man not to be confused with "financier of the American Revolution" Robert Morris Jr.). "No good law whatever could be passed without a private bargain with [Morris]," Franklin lambasted the colonial governor, whom by this juncture Franklin had long outlived. "An increase of his salary, or some donation, was always made a condition; till at last it became the 1 Bowen, Catherine Drinker. Miracle at Philadelphia. Boston: Little, Brown & Co., 1966, p. 98. regular practice, to have orders in his favor on the Treasury, presented along with the bills to be signed, so that he might actually receive the former before he should sign the latter." Franklin's cri de coeur about the dangers of politicians who would line their own pockets was follow-up from his two-days-earlier petition that the U.S. president should receive no compensation at all. It emerged as one of many of the convention's compromises that the president would receive a presumably handsome yet not princely salary - one to be set by Congress. After all, without compensation of any kind, a president might become especially tempted to earn his daily bread through acts of graft. James Madison declared a presidential salary to be necessary to move a president "out of the reach of foreign corruption.”2 The material perks and advantages from which a president might further benefit, either by overt act or by being a passive and involuntary recipient, were hemmed in even further by the framers of the Constitution. Twice in the Constitution they codified provisions to counteract any attempt, by any interested government party, to enlarge the president's compensation. This was achieved through Art. II, Sec. 1, Par. 7's "Domestic Emoluments Clause" as well as Art. I, Sec. 9, Par. 8 "Foreign Emoluments Clause.” The Domestic Emoluments Clause reads as follows: He [the president] shall not receive within that Period [his four-year term in office] any other Emolument from the United States, or any of them. 2 Madison, James. “Speech to the Delegates of the Philadelphia Convention, June 6, 1787.” What this means is that aside from his congressionally-mandated and -set salary, the president is disbarred from receiving any other form of direct or indirect income, benefit, or advantage from any part of the federal government (such as the Export-Import Bank or the U.S. Coast Guard) as well as from any other domestic government. This includes states, cities, counties, and all of their individual instrumentalities, such as a police departments or state universities. Through these enactments the framers sought to erect a sort of firewall between the president, the states, and all other governmental appendages. Franklin's Robert Hunter Morris example had been raised as an object lesson in the importance of executive function efficiency. Franklin had been complaining that government would function too slowly, and would inadequately address the demands of the moment, if the president had to be constantly spurred by money and favors into performing his duties. The Domestic Emoluments Clause also is intended to guard against presidential favoritism. For surely if one particular state or governmental agency were to shower the president with gratuities or opportunities for enrichment, that state or agency would stand to reap tremendous patronage and consideration in return. Within a framework of coequal branches of government, within a union of states who are equals in many respects, such displays of presidential partiality would assuredly fail to secure domestic tranquility. It is not just the people of the Revolutionary Era who saw fit to include a Domestic Emoluments Clause in their Constitution. Three-quarters of a century later, the constitution of the Confederate States of America essentially cut and paste the same language into their own Article II. II. The Emoluments Clauses and President Donald Trump Arguably, however, no chief executive can be credited with vaunting the emoluments clauses to heights of public awareness like Donald J. Trump. Trump, through his interests in a moderately-sized chain of hotels, commercial buildings, golf resorts, and the like, has drawn an unprecedented amount of proverbial fire. On one flank he has been raked by accusations that he is violating of Foreign Emoluments Clause. On the other flank, it's the Domestic Emoluments Clause. If indeed President Trump is violating both the Foreign and Domestic Emoluments Clauses with his private business interests, neither the executive branch nor the partisan majority in the legislative branch of the federal government has taken any action to rectify offenses to the Constitution. The president has faced multiple lawsuits on this controversy from parties inside and outside government. To date, no lawsuit has yet ended with results calling the president to account. Currently District of Columbia, et al. v. Trump, is moving forward after the plaintiffs, the State of Maryland and the District of Columbia, were found to have standing and Judge Peter J. Messitte opined that Trump's actions constituted "plausible" violations of both emoluments clauses.3 Some legal scholars have forwarded arguments that favor the administration and find no legal fault with Trump's business activities. Possibly the scholar in this vein whose work has been most widely successful in making its way out of law journals, blogs, and amici curiae to the court and into mainstream publications 3 District of Columbia et al. v. Trump (8:17-cv-01596) like the New York Times and The Washington Post is Seth Barrett Tillman. Tillman is a faculty member in the College of Law at Maynooth University in Ireland, and an American national. Tillman's thesis is comprehensive, coherent, and many-layered. Space will not be reserved here to consider it in its entirety. Perhaps the most prominent feature of the thesis is the argument that the framers of the Constitution never intended the Foreign Emoluments Clause to apply to or "reach" the president. The judge in District of Columbia, et al. v. Trump devoted many pages of his opinion to parsing and ultimately discrediting the myriad elements of Tillman's scholarship. But the Honorable Judge Messitte did not delve in great detail into one particular facet of Professor Tillman's argument - at least not to Professor Tillman's satisfaction. This article will go on to offer the deep analysis that seems to have been beyond the scope of the July 25, 2018, legal opinion. III. George Washington’s 1793 Land Transactions, and the Claims about them Pursuant to the Emoluments Clauses Throughout this nearly two year-long odyssey of the suspiciously muscular promotion of Professor Tillman's ideas in this area, there has perhaps been no argument he has more consistently attempted to employ as a buttress than the allegation that George Washington himself "brazenly" violated Article II's Domestic Emoluments Clause-and did so in such a way as to mitigate or indemnify President Trump's own conduct in regards to the provision. The source of Tillman's allegations lies in an episode from 1793. Early in his second presidential term, while the federal government still resided in Philadelphia, Washington journeyed to the embryonic "federal city" that would become what we know today as Washington, D.C. Foremost on the president's schedule was taking part in a Freemason parade and accompanying ceremony that would mark the laying of the cornerstone for the U.S.

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