Hamilton's 1793 List of "Offices Under the United States"

In 1793, Alexander Hamilton, then secretary of the treasury, prepared a list of, “every person holding any civil office... under the United States..." The list is important to a modern debate. The constitution ordinarily prohibits any person holding, "office... under the United States" from accepting gifts from a foreign state (U.S. Const. art. 1:9). Does this apply to the president? Could he accept foreign gifts -- such as a Qatari 747-8?

Scholars have argued that Hamilton's 1793 report of "offices under the United States" does not list the president. If the presidency were such an "office," the argument goes, Hamilton would have listed it. He did not.

Scholars have argued George Washington also formed this view, because Washington accepted a foreign gift -- a portrait of King Louis XVI -- from the French ambassador. But Washington was not a lawyer, and if constitutional interpretation was even partly in his calculus, so was politics. The portrait was a diplomatic gesture from a teetering monarchy. At a delicate moment -- between the president and Louis, and between the president and Congress -- Washington accepted the gift. More on this below.

Hamilton's report is another matter. There would be no ulterior reasons for Hamilton to omit the presidency from his list of "offices." Hamilton was complying with a formal request from the Senate, and, characteristically, made a comprehensive project of his response. The report is meticulous, listing everyone and anyone holding "office" -- including Hamilton himself, as treasury secretary -- but not the president of the United States.

The Scrivener's Copy

Intriguingly, we have a copy of Hamilton's report, not personally signed by him, and probably dating to the 1820's. In the scrivener's copy of Hamilton's list of "offices under the United States," President George Washington and Vice-President John Adams are clearly listed at the outset. If this version of Hamilton's report is accurate, it is evidence that an important founder believed the presidency was an "office under the United States."

Scrivener's copy of Hamilton's report of offices under the United States, listing President George Washington and Vice-President John Adams.

Scholars have long acknowledged this later document, but what weight does it deserve? The original 1793 version was prepared, handled, and signed by Hamilton personally. The later copy was prepared long after Hamilton died, and penned by a clerk whose name -- and competence -- are unknown. But the later copy has one feature lacking from the 1793 original: the later copy is more complete.

Completeness

The argument scholars marshal from Hamilton's 1793 report ultimately fails, because the report in our possession is an incomplete document. Did Hamilton leave out the president from his list of "offices" intentionally? Or did he include the president's name on the top page which is now lost? If all we have is most of Hamilton's document, then we will never know. And in fact, "most" is all we have of Hamilton's original. Scholars cannot establish the document in our possession is complete -- indeed, we know definitively it is not.

But while we are missing pages from Hamilton's report, the scrivener was not. Writing no later than the 1820's, the scrivener had an intact version of Hamilton's entire document before him, and and he purports to copy it. And the scrivener, copying Hamilton's complete report, lists the presidency as an office. That deserves more weight than arguments from the incomplete 1793 original, particularly on the issue of what names are missing from the list. If there is any reasonable risk that we are missing pages from Hamilton's original document, then it ceases to be proof -- and the scrivener's copy creates that risk.

Section XIV: Collectors of Customs

Hamilton's 1793 document is in the vaults of the National Archives. I've never been, but people who have retrieved and reproduced it faithfully, including for purposes of litigation, reveal an incomplete document.

To prepare his report in 1793, Hamilton wrote to the various departments of the government, requesting they provide a statement of their officers and salaries. Departments responded to Hamilton with detailed information -- the names of people in various offices, and their salaries -- broken out quarterly. Hamilton took the responses from each department, labeled them, numbered them, created a corresponding table of contents, wrote a cover note and forwarded the whole package of 90+ pages off to the Senate. Here is Hamilton's cover statement and table of contents to the 1793 role of "offices under the United States" which he sent the Senate:

Table of contents to Hamilton's original 1793 report of officers under the United States. The handwriting and signature are Hamilton's.

Numerous experts have opined the handwriting and signature are authentically Hamilton's.

The manuscript in our possession is missing section 14 pertaining to Collectors of Customs and others. On Hamilton's original table of contents, next to section 14, someone jotted down a handwritten note: "Not on File August 27, 1828"

Close-up of Hamilton's table of contents section 14 regarding "Collectors of Customs." A handwritten note, "Not on file August 27, 1828" appears in the margin.

And indeed, Section 14 is missing to this day in the National Archives:

"Document Missing" placeholder inserted into Hamilton's 1793 report for section 14, "Collector of Customs & Others."

When arguing the merits of Hamilton's report in court (during President Trump's first term), scholars submitted a letter from the Center for Legislative Archives at the National Archives confirming their submission was a, "complete copy of the file," on Hamilton's 1793 report (other than two unrelated annexes). This confirms the problem. The court submissions included the entire contents of the National Archives file for Hamilton's report, and those submissions were missing section 14. It is lost.

But the 1820's scrivener's copy of Hamilton's report includes the missing section 14 on Collectors of Customs and others:

"Collectors of customs" names and salaries appearing in the later scrivener's copy of Hamilton's report.

This was detailed information unlikely to have been reconstructed after the fact. Clearly, the scrivener had Hamilton's section 14 in hand, and copied it. The scrivener was working from a more complete copy of Hamilton's report than we have in our possession. And, working off a complete copy of Hamilton's report, the scrivener's version lists the president.

George Wythe

There are other reasons to doubt Hamilton or other founders denied the presidency was an "office under the United States," or that the presidency was immune from checks and balances on such "offices." This is particularly true on the issue that counts: could the president accept a gift from a foreign state under the Foreign Emoluments Clause (art. 1:9), which prescribes such gifts (absent Congressional approval) to anyone holding, "office under the United States."

George Wythe was one of the most prominent founders, and was particularly known as, "one of the most learned legal Characters" of his age. Wythe was not only a professor of law, but tutored Thomas Jefferson, to whom he left his library. Wythe signed the Declaration of Independence, was a delegate at the Constitutional Convention in Philadelphia, and attended the Virginia Ratifying Convention the following year. Apart from his public historical prominence, Wythe spent much of his life immersed in the daily work of the law. He was a judge, he belonged to important committees in the Virginia House of Burgesses, and participated in codifying early Virginia law. If we can trust anyone to tell us how a legal phrase was commonly understood at the time of the founding, it would be George Wythe.

Wythe presided over and signed a declaration which plainly states -- indeed, could not conceive that anyone would dispute -- the president is subject to the Foreign Emoluments clause. Wythe was unaware of anyone who believed that, "the President and senate could stipulate that themselves... might accept of any title of nobility from any King, Prince, or foreign State without the consent of Congress". This is an explicit and direct application of the Foreign Emoluments Clause to the president, flatly contradicting those scholars who claim founders believed the clause inapplicable to him.

To be clear, there is no constitutional difference between a "title of nobility" and "present" (i.e., gift) from a foreign state -- they are on the same list in the same clause of the constitution, separated by three words enumerating all the various things which might be bestowed by a foreign state and are forbidden to anyone holding "office." A foreign gift and foreign title of nobility have one and the same constitutional status, and if the president is precluded from one, so he is, by textual necessity, from the other.

As far as I am aware, the Wythe source has gone overlooked by scholars to date.

The Wythe source is a complete answer to one aspect of the debate over the original meaning of "office under the United States." Scholars who cite Washington's acceptance of the Louis XVI's portrait argue not only that Washington took the gift, but importantly that nobody criticized him, not even his political opponents. This shows, supposedly, that everybody back then knew that the president was exempt from the Foreign Emoluments Clause.

This argument is wrong and people should stop making it. When Wythe signed the above declaration, he was criticizing Washington specifically for presidential overreach. At issue was Jay's Treaty with Great Britain which included onerous commercial restraints. Regulating commerce, the Wythe declaration argued, was the province of Congress, not the president. The declaration is not Wythe's private opinion, but a public document from the, "citizens of Richmond." Simply put, it is a public criticism of Washington for exceeding the powers of the presidency, including his Article II powers of diplomacy, explicitly on the view that president is bound by the Foreign Emoluments Clause. Scholars who argue that nobody in the founding era would criticize Washington on such grounds -- because it was supposedly understood that the president was outside the scope of the clause -- are mistaken. Some news stories catch; others don't. Perhaps nobody cared very much that Washington got a portrait of Louis XVI as a gift, but one thing is crystal clear: when Washington's opponents wanted to criticize him, they invoked the Foreign Emoluments Clause, they said it applied to the president, and even claimed it imposed a structural containment on the the president's powers of diplomacy. The criticism was leveled against Washington quite publicly, and signed by none other than George Wythe.

What is more, the Wythe declaration was sent off to Washington for the explicit purpose of convincing him not to proceed with the controversial treaty John Jay had negotiated. The Richmond cohort -- and Wythe -- must have believed that Washington would find their arguments persuasive, or least, not antithetical to a popular contemporary legal premise. If it was commonly believed the Foreign Emoluments Clause excluded the president, or if people believed Washington himself thought so after he accepted a portrait gift from France, then the Richmond declaration would hardly be persuasive to the most important person in its intended audience. The declaration argues to Washington that, were he to sign the proposed treaty, he would be going too far in exercising presidential power, so far, in fact, that it would imply the outrageous and inconceivable: that a president could accept a foreign title of nobility. The premise in this argument is not only that the Foreign Emoluments Clause applied to the president, but that Washington himself would not dare disagree.