In a brief filed Friday, President Trump asked Judge Abrams to dismiss the suit seeking to enjoin his business dealings to the extent they violate the Emoluments Clause (see our post on the original complaint here, and see the current, second amended complaint here).
The brief argues (among other things) that, based on extensive historical evidence, the Emoluments Clause was never intended “to reach benefits arising from a President’s private business pursuits having nothing to do with his office or personal service to a foreign power.”
For example, the brief highlights that the clause arose from an incident having nothing to do with private business: after two American diplomats negotiated the Franco-American alliance treaty of 1778, King Louis XVI gave them each a “gold snuff box with the picture of Louis XVI set with diamonds.”
The brief also highlights that early Presidents had extensive private business dealings, with no apparent concern for whether their profits could be traced to foreign governments:
George Washington, who had left his nephew in charge of his highly successful business, required “weekly reports” from his farm managers at Mount Vernon, and responded with detailed instructions. From his Presidential office, he wrote business plans, including those for his gristmill, from which he exported flour and cornmeal to “England, Portugal, and the island of Jamaica.” Thomas Jefferson maintained his farm and nail factory at Monticello and exported his tobacco crop to Great Britain.
James Madison had a tobacco plantation in Montpelier, and James Monroe’s 3,500 acre Highland plantation grew timber, tobacco, and grain. While Madison’s and Monroe’s farm records apparently have not survived, the export of farm products such as tobacco to England and elsewhere had been common since colonial times.
Had the Framers intended the Emoluments Clauses to encompass benefits arising from a federal official’s private commercial transactions with a foreign state, or in case of a President, with a foreign, federal, or state instrumentality, surely someone would have raised concerns about whether foreign governments or government-owned corporations may have been among the customers of the farm and other products regularly exported by early Presidents. Yet, there is no evidence of these Presidents taking any steps to ensure that they were not transacting business with a foreign or domestic government instrumentality.