Was Alexander Hamilton a Zombie? Experts Say No

by Theodore Kupfer

A new development in the case of Citizens for Responsibility and Ethics in Washington v. Trump, a case that is pending before the District Court of New York, makes it clear that some lawyers have taken to mendacity to advance their political objectives — or that their political objectives blinker them to reality.

The plaintiffs allege that President Trump is in violation of the Presidential Emoluments Clause and the Foreign Emoluments Clause. Their claim is that both clauses forbid the president from receiving “anything of value,” whether “monetary or nonmonetary” from domestic or foreign governments, and that Trump’s business profits, some of which have come from foreign governments, render him ineligible to hold office. Among their supporters are several prominent legal scholars and historians, including attorneys Laurence H. Tribe and Jed Shugerman.

But the evidence is that the founders never meant the Foreign Emoluments Clause to apply to the president. In an amicus brief filed on behalf of attorney Seth Barrett Tillman, attorney Josh Blackman noted that “our Founding-era presidents openly received diplomatic gifts from foreign governments.” In 1792, Alexander Hamilton, then Secretary of the Treasury, wrote a report listing all who hold an office of profit or trust under the United States — the relevant criterion for the Foreign Emoluments Clause — that did not include the president. That report was signed by Hamilton, and is called “The Complete Report.” In an op-ed for the New York Times, Tillman and Blackman explain their position:

As understood at the time of the framing, only appointed officers hold such positions. In contrast, elected officials do not hold office under the United States, and thus the president is not bound by the clause.

Against this interpretation, the plaintiffs and their amici have cited another document purportedly signed by Hamilton called “The Condensed Report.” The document has Hamilton’s signature, and lists the president as an officeholder, implying that the founders indeed understood the president to be subject to the Foreign Emoluments Clause.

Here’s the problem: The document was drafted after Hamilton died.

Five experts — two of whom are leading authenticators of founding-era documents, and three of whom are Hamilton scholars — have found that the provenance of “The Condensed Report” is not what the plaintiffs said. The document is a scrivener’s copy of “The Complete Report.” It contains references to a book that was not published until 1820. The apparent signature of Hamilton was, in the words of authenticator John P. Kaminski, “clearly not written by Hamilton himself. Rather, the words ‘Alexander Hamilton’ were written by the same scrivener who transcribed The Condensed Report.” (Amusingly, Kaminski, who edits The Documentary History of the Constitution, has been cited by the plaintiffs in the past.)

This isn’t a groundbreaking discovery, either. The editors of the Hamilton Papers, a volume compiling every document ever signed by Hamilton, were aware of this document and declined to include it. Their interpretation comports with Kaminski’s: “The Complete Report” is authentic; “The Condensed Report” is a copy.

Tribe called the discovery of “The Condensed Report” “devastating,” and Shugerman suggested that Tillman and Blackman ought to retract their brief. One wonders why these two eminent legal scholars were so eager to embrace something that would not hold up to scrutiny.

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