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A controversy over whether Alexander Hamilton signed a document indicating that the president is subject to the foreign emoluments clause isn’t over yet, Josh Blackman, a professor at South Texas College of Law Houston, told Bloomberg BNA Sept. 22 ( Citizens for Responsibility and Ethics in Washington v. Trump, S.D.N.Y., No. 1:17-cv-00458, motion for leave to respond to amici curiae brief denied 9/21/17 ).
Legal historians filed their own amicus brief disagreeing, based on a document purportedly signed by the founding father.
The historians said Blackman and Tillman’s brief overlooked a “key Hamilton manuscript that undercuts its thesis and belies its description of archival material.”
Blackman and Tillman offered evidence in a supplemental brief that Hamilton’s signature on that manuscript was fake—eliciting an apology from one of the historians—but the U.S. District Court for the Southern District of New York refused to allow it, in a Sept. 21 ruling by Judge George B. Daniels.
Legal historians who said the signature was authentic need to address that evidence even if courts won’t, Blackman said.
One of the legal historians, Jed Shugerman of Fordham Law School, New York, said he welcomed the introduction of Tillman’s evidence in a blog post Sept. 23.
Shugerman apologized for his “public questioning” of Tillman’s and Blackman’s claim that Hamilton didn’t intend for the foreign emoluments clause to apply to presidents.
“I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility,” Shugerman said.
The legal historians found the manuscript with the purported Hamilton signature only six weeks ago, and “I will continue to examine it in light of” Blackman’s and Tillman’s evidence, Shugerman said.
“We are grateful for the sincere apology,” and several “of the other historians on the brief have also reached out to us,” Blackman said.
Though there’s “a fascinating academic discussion to be had about the provenance of these particular documents, and that specific discussion will surely continue, it’s ultimately immaterial to what’s going on in the courts,” Brianne Gorod, chief counsel of the Constitutional Accountability Center, Washington, told Bloomberg BNA by email Sept. 25.
It’s clear that the clause applies to the president, and even “the Department of Justice agrees,” Gorod said.
The federal government said the clause would apply to the president in some circumstances, in a reply in support of its motion to dismiss filed Sept. 22.
The Department of Justice declined a request for comment.
An attorney for the plaintiffs didn’t return a request for comment.
Trump violated the foreign emoluments clause by creating “countless conflicts of interest” with his “vast, complicated, and secret” business interests, plaintiffs, including Citizens for Responsibility and Ethics in Washington, said in their January complaint.
Those emoluments include “hotel stays, property leases, and other business transactions tied to foreign governments” at establishments owned or operated by Trump, the complaint alleged.
The clause applies to “those who hold office of profit or trust under the United States,” Blackman said.
There’s historical evidence that this language refers “to appointed officials and not elected officials” and therefore not to the president, he said.
In 1792, then-Treasury Secretary Hamilton was tasked with creating an accounting of the emoluments of those who hold civil office under the United States, Tillman’s brief filed by Blackman said.
Hamilton’s report didn’t include “ any elected positions in any branch,” the brief said.
That “complete report” is “evidence that Hamilton shared this understanding that those who hold office under the United States are appointed and not elected,” Blackman told Bloomberg BNA.
There’s another document in which Hamilton “explicitly identifies the President as an officer under the United States,” CAC’s Gorod wrote for the Take Care blog Aug. 1. This document, known as the “condensed report,” wasn’t mentioned in the Tillman brief.
Tillman therefore overlooked “a key Hamilton manuscript that undercuts its thesis and belies its description of archival material,” the legal historians’ amicus brief supporting the plaintiffs said, citing Gorod’s post.
But the Hamilton signature on that shorter, condensed report is fake and “looks nothing like his signature,” Blackman told Bloomberg BNA.
The plaintiffs and their amici charged that Blackman and Tillman misled the court about the condensed report, Blackman said on his own blog Sept. 20.
“Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton,” Blackman wrote.
If “you look at the markings,” it “refers to paginations and volumes that weren’t printed until 1820" or later, he told Bloomberg BNA.
That would be years after Hamilton’s famous death in an 1804 duel with Aaron Burr.
Even if the district court doesn’t make the legal historians acknowledge that evidence, “as scholars, they should,” Blackman said.
The drumbeat for a response from Blackman and Tillman continued for several weeks after the Take Care blog’s Aug. 1 post accused them of overlooking the condensed report supposedly undermining their argument.
Blackman didn’t respond sooner to the Take Care blog post because it’s “not a venue I take seriously,” Blackman said.
It’s “basically the house organ of the legal resistance” to Trump, he said.
“I could care less what a bunch of lawyers write about me on a blog,” he said.
The “reason why we responded the way we did is that a bunch of legal historians” put the blog post “into a brief,” he said.
When a pleading incorporates “vituperative blog posts, that’s where a response is called for,” he said.
Blackman’s response seems to have gained traction in the court of public opinion, but because the district court rejected Tillman’s supplemental brief, it won’t have their evidence about the questionable Hamilton signature on the condensed report.
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