OA35: The Emoluments Clause (w/Seth Barrett Tillman) Part 1

Today’s episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump.

We begin, however, by addressing another Trump-related question:  Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency?  We delve into the report and answer the question in a way that may surprise you.

Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law.  Tillman’s thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an “office… under the United States” for purposes of Constitutional analysis.

Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President.  Could Donald Trump nominate George W. Bush to be Secretary of State?  Find out!

Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. Here’s the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
  2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
  3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
  4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
  5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
  6. Zephyr Teachout’s law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
  7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
  8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
  9. Tillman’s reply to Teachout can be found here.
  10. Teachout’s final reply to Tillman can be found here.

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