Not being an emoluments scholar, nor having anything to add beyond the unseemliness of a president enriching himself one hotel room at a time, I’ve got no horse in the race being run in the Southern District of New York. But also being a huge fan of history and its artifacts, Josh Blackman’s post about the war between amici over “what did Hamilton sign” is turning from a fascinating battle royale into a rout.
The issue was joined in the blawgosphere (and, of course, in court filings) as reflected in Brianne Gorod’s post at the
We Hate Trump Take Care blog.
Earlier this month, I wrote a piece for this blog on the debate about whether the Foreign Emoluments Clause, which applies to all persons “holding any Office of Profit or Trust” under the United States, applies to the President. As I explained in that piece, there’s a “big problem” with one of the major pieces of documentary evidence relied on by those who argue that it doesn’t apply. My colleague Brian Frazelle and I have now done a little more digging, and the problem with that evidence has gotten even bigger.
It’s often hard to quote from an academic blog, as they tend to be ridiculously prolix, making the quotes a few million words longer than necessary. The TL;dr is that there are two “historical” documents putatively listing who’s an officer for purposes of the emoluments clause and who isn’t. One is called the “Complete Report” and the other the “Condensed Report.” Gorods’ claim is that they “found” the condensed report in the National Archives, that it includes the president on the list of offices and that’s signed by Hamilton. Moreover, they claim that amicus Seth Barrett Tillman, represented by Josh, concealed this from the court, claiming that it wasn’t signed by Hamilton.
But my colleague Brian and I have now done a little more digging. We even took a trip to the National Archives to take a look at the original of Tillman’s document. And guess what we found in the very same box that houses the document Tillman emphasizes? The original of the American State Papers “abbreviated version.” And that original—the one that lists the President as an officer under the United States—appears to be signed by none other than Alexander Hamilton.
Did you hear that “GOTCHA!!!” That was Larry Tribe, and contrary to rumor, it had nothing whatsoever to do with his candlelit dinner with Louise Mensch at Tasty Burger*. And the crew at Take Care blog demanded retractions, apologies, prostration, genuflection and concession. Instead, they got experts.
Our brief includes two sworn declarations by leading experts in the field of authenticating founding-era documents, and three other experts in regard to Alexander Hamilton. The experts uniformly agree: Amicus is correct.
- Declaration of Michael E. Newton and Supplemental Declaration.
- Declaration of John P. Kaminski
- Declaration of Professor Kenneth R. Bowling, Ph.D.
- Declaration of Professor Stephen F. Knott.
- Declaration of Professor Robert W.T. Martin.
The signature on The Condensed Report is not Alexander Hamilton’s. It does not bear any of the characteristics of his penmanship. Further, the experts agree with Tillman that The Condensed Report was not drafted in 1793, and was drafted long after Hamilton’s death in 1804.
While the nice folks at Take Care are academics, who often refer to themselves as experts, and that’s invariably good enough for the unduly breathless hosts on MSNBC, the skill of distinguishing a signature requires more than the ability to read the letters and make out a name on an old piece of paper.
One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not).
It’s one thing to play expert on the internet or partisan television, but it’s an entirely different matter to confuse actual expertise with screaming to one’s sycophants.
The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading.
In court, expertise isn’t a matter of a blog post or Larry Tribe’s furious twitting, but establishing one’s bona fides and presenting substantive evidence in support of one’s claim. Somebody owes somebody an apology here, but if I was Josh Blackman or Seth Tillman, I wouldn’t hold my breath. On the other hand, those legal historians who rushed to sign on to the amicus side that aligns with their politics may have some issues when it comes to their integrity going forward.
That addresses the question for the courts. But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim–as Shugerman insisted Tillman and I should–and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).
Whether or not the question of Hamilton’s non-signature wins the day is one thing, but historical fact and documents aren’t real because you want so very much to believe so. And when you’re going to bet your integrity on it, and call out the integrity of others, you ought to make damn sure you’re as much of an expert as you claim to be. And get it right.
*Seriously, Tasty Burger guys, I should get a free burger and fries for this, at least.