I ran across more information concerning the decision of Judge Messite to permit the emoluments lawsuit pursued by the Attorneys General of Maryland and D.C. against President Trump to go forth. It boils down to John Mikhail researching the dictionaries available to the authors of the Constitution and using the information to rebut the Department of Justice’s defense of the President’s continuing business links. It’s at the Balkinization blog, as mentioned by WaPo, and here’s a bit from what appears to be the initial blog posting on the subject:
… why the Trump Justice Department’s narrow definition of “emolument” in CREW v. Trump cannot withstand scrutiny.
In its motion to dismiss in CREW et al. v. Trump, the Department of Justice (DOJ) defines the word “emolument” as “profit arising from office or employ.” DOJ claims that this “original understanding” of “emolument” is both grounded in “contemporaneous dictionary definitions” and justifies an “office-and-employment-specific construction” of that term. On this basis, it argues that the Emoluments Clauses of the Constitution “do not prohibit any company in which the President has any financial interest from doing business with any foreign, federal, or state instrumentality.”
Unfortunately, DOJ’s historical definition of “emolument” is inaccurate, unrepresentative, and misleading. Particularly because the government may seek to utilize its flawed definition in subsequent court filings, this Article seeks to correct the historical record. It does so based on a comprehensive study of how “emolument” is defined in English language dictionaries published from 1604 to 1806, as well as in common law dictionaries published between 1523 and 1792.
Among other things, the Article demonstrates that every English dictionary definition of “emolument” from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief: “profit,” “advantage,” “gain,” or “benefit.” Furthermore, over 92% of these dictionaries define “emolument” exclusively in these terms, with no reference to “office” or “employment.” By contrast, DOJ’s preferred definition — “profit arising from office or employ” — appears in less than 8% of these dictionaries. Moreover, even these outlier dictionaries always include “gain, or advantage” in their definitions, a fact obscured by DOJ’s selective quotation of only one part of its favored definition from Barclay (1774). The impression DOJ creates in its brief by contrasting four historical definitions of “emolument” — two broad and two narrow — is, therefore, highly misleading.
Followed by some lovely tables demonstrating, I assume, the fallacy of the DoJ’s position. In some ways, I dislike the Internet, but WaPo suggests that, prior to the Internet, this research would taken years; now it takes weeks. But it’s also an incidental rebuttal of my own position that legal words shouldn’t change their meaning over time, since it appears emoluments has done so. Will legal proceedings become ever more slower as the years pass and we must translate every law from its original wording to contemporary wording?
And will there be a word describing this occupation?
