A Tension in Judge Wilkinson’s Emoluments Clauses Dissent
[This post is co-authored with Professor Seth Barrett Tillman]
Last week, the en banc Fourth Circuit decided two related cases in the Foreign Emoluments Clause litigation. First, In re: Donald Trump denied the official-capacity defendant’s petition for a writ of mandamus. (The official-capacity defendant is the United States, which is represented by the Department of Justice.) Second, District of Columbia v. Trump dismissed the individual-capacity defendant’s interlocutory appeal for lack of jurisdiction. (The individual-capacity defendant is the President, qua as a government official, represented by the President’s private counsel.) Both cases divided the en-banc court 9-to-6. Judge Motz wrote the majority opinion in both cases. Judge Wilkinson wrote the principal dissent in the official-capacity case. Judge Niemeyer wrote the principal dissent in the individual-capacity case. We filed amicus briefs in both the official-capacity and the individual-capacity cases.
We will have much more to say about these decisions in due course. Here, we want to focus on a tension in Judge Wilkinson’s erudite dissent. Judge Wilkinson’s dissent, as does Judge Motz’s majority opinion, takes the position that the Foreign Emoluments Clause extends to the presidency. However, Footnote 2 from Judge Wilkinson’s dissent cites President Washington’s conduct, and an analysis of that conduct supports the opposite conclusion. Specifically, Washington’s acceptance of foreign state and diplomatic gifts suggests he did not think he was bound by the Foreign Emoluments Clause.
Footnote 2 begins:
What’s more, plaintiffs’ interpretation of the [Emoluments] Clauses would necessarily brand George Washington a repeat violator—a conclusion that ordinarily speaks more to flaws in a given constitutional interpretation than it does to the first President’s conduct. See American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2087-89 (2019).
In this litigation, the Plaintiffs have argued for a broad definition of “emolument.” They argue the phrase extends to any benefit, profit, or gain. If that standard were correct, then President Washington was a lawbreaker. We agree emphatically with Judge Wilkinson’s rejoinder. Courts should pause before ruling that Washington violated the Constitution he helped to define.
Next, Judge Wilkinson looks to three heads of Washington’s conduct. This conduct, he argues, rejects the Plaintiffs’ broad reading of the phrase “emoluments.”
Washington likely  purchased several plots of land from the federal government while President;  continued to export crops overseas; and  received, without consent of Congress, numerous diplomatic gifts from France.
The first head of conduct informs the meaning of the phrase “emolument” in the Domestic Emoluments Clause. The second head of conduct could possibly inform the meaning of the phrase “emolument” in the Foreign Emoluments Clause. In other words, if the Plaintiffs were correct about the broad meaning of “emoluments,” then Washington’s business transactions would have rendered him a lawbreaker. We agree that Wilkinson’s analysis works for the first head of conduct: President Washington purchased land from the federal governm
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