What is an, "office under the United States"? The U.S. Constitution (Article 1 section 3) states that an impeached official may be disqualified from holding, "any Office... under the United States." Elsewhere, the Constitution prohibits any person holding, "office under the United States" from accepting gifts from a foreign government, unless Congress approves (Article 1:9). Members of Congress are prohibited from holding any, "office under the United States" (Article 1:6). What does "office under the United States" mean, and what "offices" does it include?
Professors Seth Barrett Tillman and Josh Blackman have argued at length -- most recently here -- that an "office under the United States," means appointed positions, not elected positions. According to this view, the President and Vice-President are not "officers under the United States," because they are not appointed -- they are elected. The consequences are real. The President or Vice-President could accept foreign state gifts ("emoluments") at will, a position Blackman and Tillman argued in court during the Trump presidency. President Trump could never have been disqualified from holding the Presidency -- even if the Senate had convicted him and disqualified him from holding future "office."
Blackman and Tillman's most recent installment on this issue is Part IV of a promised ten part series. Part IV alone is 78 pages. There is a message in their medium. Blackman and Tillman are hard core textualists, prepared to devote hundreds of pages of exactifying scrutiny of the slightest Constitutional turn of phrase.
I find Blackman and Tillman's argument unpersuasive. The Constitution itself and many reliable contemporaneous sources seem to conclusively show that the Presidency and Vice-Presidency are, "offices under the United States." Blackman and Tillman's extensive textual analysis is altogether not my style. As Justice Thomas -- no textual slouch -- has noted, "terms may not always have the exact same meaning throughout the Constitution." (Chiafalo v. Washington, concurring in judgement).
Tillman and Blackman's thesis has many components, and I hope to say more about it in the future. Today, I will address a historical document which they discuss in their most recent paper, a 1793 list compiled by Alexander Hamilton of persons holding "Office under the United States."
As Tillman and Blackman tell it (at p. 31 of their "Part IV" paper):
in 1792, the Senate directed Secretary Hamilton to produce a financial statement listing the “salaries, fees, and emoluments” of “every person holding any civil office or employment under the United States, (except the judges).” Hamilton and the Treasury Department took more than nine months to draft, sign, and submit a response, which spanned some ninety manuscript-sized pages. The manuscript included several documents, which we refer to collectively as the 1793 Complete Report. Hamilton listed appointed or administrative personnel in each of the three branches of the federal government. However, Hamilton did not include all positions in the federal government. His carefully-worded response did not include the President, [or] the Vice President... Hamilton’s response did not include any elected positions in the federal government.
In our view, Hamilton and his 1793 Complete Report accurately responded to the precise language in the Senate’s order: elected officials do not hold office under the United States, so they were not listed. Hamilton and the Treasury Department’s response lends some substantial confirmation to our position: the framers had adopted the British “office under” drafting convention to distinguish between appointed and elected positions.
Tillman first, later joined by Blackman, have been making this point, and specifically based upon Hamilton's 1793 list, for many years.
Tillman and Blackman respond to a number of critiques others have lodged against their thesis. A central issue they address is that Hamilton's original 1793 report is not the only version of the document. A later draft -- it seems likely from the 1820's -- reproduces Hamilton's report and includes the President and Vice-President on the list of "officers under" the United States:
President George Washington and Vice-President John Adams are clearly listed with their salaries. If that list of "offices under" the United States is accurate, Tillman and Blackman's argument from Hamilton fails -- indeed, a document signed by Hamilton affirmatively shows they are wrong, and that Hamilton himself considered the President and Vice-President "officers under the United States." Tillman and Blackman's response to this is (mostly) simple: The original 1793 document, in Hamilton's own handwriting and personally signed by him, carries more weight than the scrivener's copy from years later. Tillman's and Blackman's (particularly Tillman's) archival work is extraordinary. (I am indebted to them for making available images of the manuscript record. Their paper and brief in the emoluments litigation contain images and/or relevant URL's.)
However, there is one problem.
The 1793 original Hamilton document in our possession is not a complete document. And because the document is not complete, it is not definitive that Hamilton left out the President and Vice-President from his report at all. Maybe Hamilton included the President and Vice-President in his list of "officers under the United States," and our (incomplete) record just doesn't have that portion of his document. The experts -- on both sides of this issue -- do not seem to have entertained this possibility.
To respond to the Senate's order, 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:
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
And indeed, Section 14 is missing to this day in the National Archives:
The missing section 14 suggests Hamilton's 1793 report was subject to wear and tear -- someone reviewing it pulled Section 14, and never put it back. Perhaps this happened in a Senate committee or among staff -- "Senator so-and-so in knowledgeable about customs enforcement; he will take that section of the report and review it carefully." Tillman and Blackman note that the Senate would have handled the actual document Hamilton sent. One can well imagine a subcommittee divvying up the report's various sections and annexes in the course of its investigating officers and salaries. Just as the Senate lost track of Section XIV, the Senate may have lost an initial page from Hamilton listing the President and Vice-President. A Senate subcommittee would hardly need to keep track of that information for purposes of its investigation.
Plainly all speculative, except for one thing. The scrivener's copy of Hamilton's report not only includes the President and Vice-President in the list of "officers under the United States," but also includes section 14 -- the section that is missing from our 1793 Hamilton original -- on Collectors of Customs and others:
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. Thus, an admittedly later -- but more complete, more intact -- version of Hamilton's list of "officers under the United States" includes the President and Vice-President.
On Blackman and Tillman's view, a later writer took the liberty of adding the names of the President and Vice-President and their annual salaries to Hamilton's report, and presented the document as though it were signed by Hamilton. Perhaps that happened. But it seems reasonably fair to conclude that the question is an open one: Did Hamilton, in his own hand, include the President and Vice-President in his list of "officers under the United States"? We will probably never know.