Brief of Amici Curiae Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, In Re: Trump, No. 18-2486 (4th Cir. Jan. 29, 2019)
41 Pages Posted: 14 Feb 2019
Date Written: January 29, 2019
On June 12, 2017, the District of Columbia and the State of Maryland filed suit in the United States District Court for the District of Maryland against Donald J. Trump, in his official capacity as President of the United States of America. The complaint alleged that the President had violated both the Emoluments Clause and the Foreign Emoluments Clause of the Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. On September 29, 2017, the President filed a Motion to Dismiss, arguing that when the Constitution was ratified the term "emolument" had two distinct meanings -- a "narrow" sense limited to "profit arising from an office or employ" and a "broad" sense meaning "benefit, advantage or profit" -- and that emolument in the Constitution only referred to the narrow meaning.
The district court denied the President's motion, concluding that "the term 'emolument' in both Clauses extends to any profit, gain, or advantage of more than de minimis value, received by [the President], directly or indirectly, from foreign, the federal, or domestic governments." District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018). On December 20, 2918, the Court of Appeals for the 4th Circuit granted the President's motion to stay the district court proceedings, and ordered the parties to address not only the procedural issues regarding the President's mandamus petition but also "the underlying issue of whether the two Emolument Clauses provide plaintiffs with a cause of action." The appeal is currently set for argument on March 19, 2019.
On January 29, 2019, Professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in the 4th Circuit, reporting the results of the research described in their paper Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and the Emoluments Clauses, available at SSRN: https://ssrn.com/abstract=3321438.
Cunningham and Egbert filed the amicus brief to present a different, scientifically-grounded approach for researching the original public meaning of emolument. They applied the tools of linguistic analysis to newly available "big data" collections encompassing written language in common usage at the time of ratification. This data is accessible on the public website of the Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. Cunningham and Egbert accessed every text on COFEA in which emolument appeared -- over 2500 examples of actual usage -- and analyzed all of these texts using three different computerized search methods. They found no evidence that emolument had a distinct narrow meaning of "profit arising from an office or employ." All three analyses indicated just the opposite: emolument was consistently used and understood as a general and inclusive term.
When they embarked on this research project, Cunningham and Egbert had no expectation that the results would favor any particular party to this case. Their amicus brief takes no position on the merits of the President's Petition for Mandamus, and offers no view on the affirmance or reversal of the District Court's decision denying Petitioner's Motion to Dismiss, nothing that original public meaning may be only one of many factors taken into account when applying a constitutional text to a current issue.
Egbert is a professor of applied linguistics who has authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to the interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994); Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm,' 73 Wash. U. L.Q. 1159 (1995); and A Linguistic Analysis of the Meanings of 'Search' in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).
Keywords: original meaning, original intent, corpus linguistics, originalism, emoluments, Constitution, linguistic analysis, applied linguistics
JEL Classification: K19
Suggested Citation: Suggested Citation