At the New Reform Club, Seth Barrett Tillman has further evidence on George Washington's view of emoluments: DOJ Response to Office of Inspector General Report (and, by implication, to Jonathan Hennessey). From the conclusion:
That is, the land sold by the D.C. Commissioners was land donated to the United States and was public property when purchased by Washington. In addition, Washington stated that “the present Proprietors shall retain every other lot” beyond those ceded and would “be allowed at the rate of Twenty five pounds per acre” as payment “for such part of the land as may be taken for public use, for square, walks, &ca.” [Id.] Consistent with this understanding, one amicus has explained that although the Commissioners “did make certain payments to the landowners . . . , those payments were not [to pay] for auctioned land, such as the lots Washington bid on,” but were for land appropriated for public use at £25 per acre, and “[n]o payments were made to the proprietors for the land that was sold at auction. The proprietors gifted such land to the government in the expectation that their other properties in the new federal capital would become more valuable.” [quoting Brief of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project at 14–16, DC & MD v. Trump, No. 18-2488 (4th Cir. Jan. 31, 2019), Doc. No. 31-1, 2019 WL 411728.]
In any event, the Court need not decide this disagreement as to the historical record. Again, for purposes of interlocutory appeal, it is enough that reasonable jurists could conclude that Washington received benefit from the federal government through the land sale transactions; that if Plaintiffs’ interpretation of “Emolument” were correct, then Washington likely violated the Domestic Emoluments Clause; and that this historical precedent therefore casts doubt on Plaintiffs’ interpretation.
[Note: this is an excerpt from the Department of Justice's Supplemental Reply and Motion to Stay Proceedings at 14–16, Blumenthal v. Trump, Case 1:17-cv-01154-EGS (D.D.C. May 28, 2019).]
For further earlier thoughts by Professor Tillman on Washington and emoluments, see here.
Especially in light of this evidence, it does seem quite plausible that an arm's length purchase-and-sale transaction was not understood as an emolument.
Posted at 12:46 AM