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I. Introduction

On July 28, 2017, the Office of Inspector General of the General Services Administration (GSA 

OIG) opened this evaluation of GSA’s management and administration of GSA’s ground lease of 

the Old Post Office Building (OPO). We initiated this evaluation based on numerous complaints 

from Members of Congress and the public about GSA’s management of the lease. The 

complaints generally raised two issues regarding the lease: (1) does the Foreign Emoluments 

Clause or the Presidential Emoluments Clause of the U.S. Constitution bar President Donald J. 

Trump’s business interest in the Trump Old Post Office LLC (Tenant) and (2) does the 

President’s business interest in Tenant violate Section 37.19 of the lease.

1

This report focuses on GSA’s decision-making process for determining whether the President’s 

election caused Tenant to be in breach of the lease upon the President’s inauguration. We did 

not seek to determine whether the President’s interest in the hotel violates either the 

Emoluments Clauses or Section 37.19 of the lease, or whether any violation caused a breach of 

the terms and conditions of the lease. Rather, we sought to determine whether there were any 

improprieties in GSA’s decision-making process regarding these issues. 

We found that GSA recognized that the President’s business interest in the OPO lease raised 

issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; 

however, GSA decided not to address those issues in connection with the management of the 

lease. We also found that the decision to exclude the emoluments issues from GSA’s 

consideration of the lease was improper because GSA, like all government agencies, has an 

obligation to uphold and enforce the Constitution; and because the lease, itself, requires that 

consideration. In addition, we found that GSA’s unwillingness to address the constitutional 

issues affected its analysis of Section 37.19 of the lease that led to GSA’s conclusion that 

Tenant’s business structure satisfied the terms and conditions of the lease. As a result, GSA 

foreclosed an early resolution of these issues, including a possible solution satisfactory to all 

parties; and the uncertainty over the lease remains unresolved.

A. Background

Constructed between 1892 and 1899, the OPO was designed to house both the U.S. Post Office 

Department Headquarters and the main Washington, D.C. post office branch.

2 The OPO was 

slated for demolition in 1928 but a lack of funding during the Great Depression saved it;

thereafter, it served as the home for various federal agencies.3 In 1964, the President’s Council 

on Pennsylvania Avenue recommended demolition of the OPO in an effort to harmonize the 

architecture in the Federal Triangle area of the city; however, local citizens united against 

demolition and the plan was not executed.

4 The OPO was listed in the National Register of 

Historic Places in 1973.5

In 1976, Congress passed the Public Buildings Cooperative Use Act, which provided GSA the 

authority to renovate the OPO for mixed use, with the upper levels used to house government 

offices and space on the upper and lower levels leased for restaurant and other retail use to 

generate revenue.6 The OPO redevelopment was not successful, however, because of low 
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occupant satisfaction and high retail turnover, including the bankruptcy of the original 

developer.

7 In addition, GSA costs to support both federal and retail occupants exceeded 

revenue and the property was underutilized.8 Consequently, GSA determined the best use of 

the OPO would be to buy out the existing retail leases and redevelop the property with terms 

and conditions beneficial to the government under the National Historic Preservation Act

(NHPA), Section 111.9 The NHPA specifically allows federal agencies to lease (or outlease) an 

historic property to a person or organization if the agency head determines that the lease will 

adequately ensure the preservation of the historic property.10

Congress passed the Old Post Office Building Redevelopment Act of 2008 and directed GSA to 

proceed with the OPO redevelopment.11 GSA’s redevelopment goals included leveraging 

private market expertise, putting the OPO to its highest and best use, providing a financially 

lucrative return to the government, preserving the historic integrity of the asset, providing for 

continued public access, and contributing to the vitality of Pennsylvania Avenue, the Federal 

Triangle area, and the city.12 Congress required congressional review before any proposed 

redevelopment agreement became effective, and directed GSA to provide a report of the cost 

benefit analysis of the proposed agreement and its material provisions.13

GSA assigned a small team of employees to oversee the OPO redevelopment issues. This team 

included a contracting officer, Kevin Terry; an attorney, Timothy Tozer; and a project manager.

Brett Banks assumed the project manager duties from a predecessor early in the project.

GSA issued a request for proposals on March 24, 2011, for the OPO redevelopment and ground 

lease.14 The solicitation included an “As Is, Where Is” provision, and made GSA responsible for 

compliance with the NHPA and the National Environmental Policy Act, as well as continued 

public access to the OPO Clock Tower.15

After reviewing and evaluating proposals, GSA selected the Trump Old Post Office LLC (Tenant) 

as the preferred selected developer on February 7, 2012, to restore and redevelop the site into 

a luxury 260-room hotel.16 Donald J. Trump (Trump) and Trump Old Post Office Member Corp. 

(a Delaware corporation wholly owned by Trump) formed Tenant.17 GSA and Tenant then 

entered into discussions to negotiate the terms and conditions of the lease. GSA identified 31

provisions of the lease that the agency considered “material” in its report to Congress as 

required by the 2008 Act.18 Section 37.19, which prohibits elected officials from being 

“admitted to” certain interests in the lease, was not one of those provisions, and therefore, was 

not reported to Congress.

19

After the Act’s congressional review period expired, the parties executed a 60-year ground 

lease on August 5, 2013, which required Tenant to pay GSA a minimum of $3 million in rent 

annually.20 At this time, Trump had a majority interest in Tenant, in which several other 

business entities also held a small interest each. 

On May 31, 2014, GSA delivered exclusive possession of the premises to Tenant; and on August 

12, 2014, GSA issued a notice to proceed, authorizing Tenant to begin construction. GSA 

provided a temporary certificate of occupancy to Tenant on September 12, 2016 allowing 
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Tenant to conduct a soft opening of the hotel. The Trump International Hotel officially opened 

on October 26, 2016, and it has been in continuous operation since that date.

On November 8, 2016, Donald J. Trump was elected President of the United States.

Long before the 2016 presidential election campaign, Trump’s successful bid to redevelop the 

historic building into a luxury hotel garnered attention.

21 His involvement with the project 

continued to attract press interest throughout the 2016 presidential election campaign; 

occasional news articles raised concerns about potential conflicts of interest and the 

Emoluments Clauses.

22 Public attention to his investment in the OPO intensified after the 

election. GSA received Freedom of Information Act requests and requests for information from 

Members of Congress raising concerns about the Foreign Emoluments Clause and foreign 

governments’ use of the hotel, as well as whether the President’s interest in Tenant violated 

Section 37.19 of the lease.

23

Shortly after the November 2016 election, lawyers in GSA’s Office of General Counsel (OGC) 

began discussing the issues raised under the Constitution’s Emoluments Clauses and Section 

37.19 of the lease. The relevant provisions are as follows:

U.S. Constitution, Article I, Section 9, Clause 8 -The Foreign Emoluments Clause: 

[N]o Person holding any Office of Profit or Trust under [the United States], shall, 

without the Consent of the Congress, accept of any present, Emolument, Office, 

or Title, of any kind whatever, from any King, Prince, or foreign State.

U.S. Constitution, Article II, Section 1, Clause 7 -The Presidential Emoluments Clause:

The President shall, at stated Times, receive for his Services, a Compensation, 

which shall neither be encreased nor diminished during the Period for which he 

shall have been elected, and he shall not receive within that Period any other 

Emolument from the United States, or any of them.

Ground Lease, Old Post Office Building, Section 37.19: Interested Parties:

No member or delegate to Congress, or elected official of the Government of the 

United States or the Government of the District of Columbia, shall be admitted 

to any share or part of this Lease, or to any benefit that may arise therefrom; 

provided, however, that this provision shall not be construed as extending to any 

Person who may be a shareholder or other beneficial owner of any publicly held 

corporation or other entity, if this Lease is for the general benefit of such 

corporation or other entity.

As described in further detail below, in December 2016, the OGC lawyers decided not to 

consider whether the President’s business interest in the OPO lease might result in his receipt 

of emoluments under the Constitution’s Emoluments Clauses. In March 2017, after receiving 
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guidance from the OGC lawyers, the GSA contracting officer responsible for the OPO lease 

decided that Tenant was in full compliance with Section 37.19 of the lease. 

B. Methodology

During the course of this evaluation, the OIG conducted over two dozen interviews of GSA 

personnel involved in the administration of the OPO lease, including the GSA lease contracting 

officer, Kevin Terry; the GSA lease project manager, Brett Banks; GSA Deputy General Counsel 

Lennard Loewentritt; GSA Office of General Counsel attorneys Associate General Counsel for 

Real Property Barry Segal and Deputy Associate General Counsel for Real Property Timothy 

Tozer; former OGC Regional Counsel Paula DeMuth; and Public Building Service (PBS) Deputy 

Commissioner Michael Gelber. We also sought to interview former GSA General Counsel Kris 

Durmer, but he declined to be interviewed.

In addition, we reviewed over 10,000 GSA documents and emails concerning the OPO lease, 

including the lease agreement and related files, documents, and emails concerning lease 

negotiations and interpretations. We also reviewed Founding Era and other sources for the 

meaning and usage of the term emolument, in order to understand whether a federal official’s 

private business activities might raise constitutional issues. We conducted our evaluation in 

accordance with the Council of the Inspectors General on Integrity and Efficiency Quality 

Standards for Inspection and Evaluation (January 2012).

This report first presents an overview of the facts related to GSA’s decision-making process for 

the emoluments issues and its consideration of Section 37.19 of the lease. The next part of the 

report analyzes (1) how the Emoluments Clauses issues arise with the lease; (2) the reasons for 

GSA’s decision to avoid the constitutional emoluments issues and why that was improper; and 

(3) how the decision to overlook the constitutional issues influenced GSA’s understanding of 

Section 37.19. The Conclusion includes our findings and recommendation.

II. Facts

GSA’s legal work on the Emoluments Clauses and Interested Parties provision fell to a small 

group of OGC supervisory attorneys: Tozer and former Regional Counsel Paula DeMuth, as well 

as General Counsel Kris Durmer, Deputy Counsel Lennard Loewentritt, and Associate General 

Counsel for Real Property Barry Segal.24 Demuth and Tozer told us that they walled Contracting 

Officer Terry off to avoid any political influence over him and preserve his independence.

A. Emoluments

The selection in July 2016 of Tenant’s primary owner, Donald J. Trump, as a major political party 

candidate for President raised the possibility for GSA that its lease of the OPO might generate 

questions under the Foreign Emoluments Clause and the Presidential Emoluments Clause. 

However, one attorney said OGC did not discuss this possibility until shortly before the 

November election, when news articles appeared that questioned whether Trump’s election 

would trigger Emoluments Clause and other conflicts of interest issues. According to one senior 

attorney, the emoluments issues did not become a hot button issue until after the election. 
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One attorney specifically recalled that emoluments did not become an issue for OGC until an 

article regarding the issue appeared in Government Executive on November 28, 2016.

The attorneys recalled participating in a few internal discussions about the emoluments issues 

after the election. Most attorneys on the OPO project were aware that there was a Foreign 

Emoluments Clause and a Presidential Emoluments Clause. 25 One attorney stated his view at 

the time was that the purpose of the Presidential Emoluments Clause was to prevent a 

President from receiving additional compensation beyond his salary for performing his job as an 

elected official and that the clause did not apply to income from pre-existing business 

arrangements. Another attorney thought that there were good arguments to be made on both 

sides of the issues presented by the two Emoluments Clauses. In the end, they all agreed early 

on that there was a possible violation of the Constitution’s Emoluments Clauses. 

Nonetheless, the attorneys decided to ignore the emoluments issues. They told us that the 

agency generally does not deal with constitutional issues (other than issues involving land 

condemnation or GSA officials), and consequently, the Constitution’s emoluments issues were 

not in GSA’s purview. In their view, OGC is only responsible for rendering an opinion on an 

explicit provision of the OPO lease, such as Section 37.19. Emoluments raised larger issues 

regarding the President’s business interests. One attorney told us that they decided not to “spin 

their wheels” on something that was not before them and, if necessary, they could address the 

issue another day.

When asked whether GSA addresses emoluments issues in other contexts, Loewentritt 

acknowledged that issues under the Foreign Emoluments Clause occasionally arise in 

connection with foreign gifts and travel paid by foreign governments for GSA employees, but 

said that OGC does not get involved with supplemental income emoluments. He told us those 

issues were for the Department of Justice’s Office of Legal Counsel (OLC) or the Office of 

Government Ethics (OGE).

OGC made the decision not to address the emoluments issues by mid-December 2016. On 

December 16, 2016, Tenant notified the contracting officer of plans to restructure the 

President-elect’s financial interests in Tenant. The subsequent correspondence between GSA 

and Tenant focused on the restructuring and Section 37.19 of the lease, until Terry issued his 

Estoppel Certificate on March 23, 2017.

Segal told us that the decision to focus on Section 37.19 and not on the emoluments issues 

came out of a discussion between himself, Durmer, and Loewentritt. He also told us all the OPO 

attorneys agreed with ignoring the constitutional issue because it was bigger than GSA and the 

lease. Former General Counsel Durmer declined the OIG’s request for an interview.

OGC decided to ignore the constitutional issues without preparing a formal decision 

memorandum to document the rationale for the position they were taking. One attorney told 

us that the decision-making process was just talking among the lawyers. Attorneys also told us 

that they made this decision without conducting any research of the two Emoluments Clauses 

or checking for any OLC opinions about the Emoluments Clauses. However, one attorney 
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acknowledged that, as a matter of personal interest, he read an OLC emoluments opinion 

involving President Reagan mentioned in a press report. 

OGC lawyers did not contact or request guidance from OLC before making this decision.

26 One 

senior attorney told us that OLC knew about the OPO lease “and it was up to them to do 

something.” Another attorney stated that because OGC was not going to address the 

constitutional issues, they did not need to confer with OLC. Similarly, Loewentritt stated that 

OGC did not refer the emoluments issues to OLC because OGC would not opine on them, 

although OLC could. 

Both Segal and Tozer stated that they had little involvement with the Administrator’s office 

about the position OGC took on the lease and no involvement from the Presidential Transition

Team. Segal said he had at least one meeting about the lease with Administrator Roth,

.

* Tozer told us that Administrator Roth agreed to 

wait until GSA received information from Tenant to interpret the lease. As described further 

below, Tenant provided information about its structural reorganization to GSA after Roth’s 

tenure as Administrator ended with the inauguration of President Trump on January 20, 2017. 

Several weeks after OGC decided to forego consideration of the constitutional issues, the first 

lawsuit was filed raising Foreign Emoluments Clause and Presidential Emoluments Clause 

challenges to the President’s interest in the lease.27 One of the attorneys told us that, shortly 

afterwards, on January 31, 2017, OGC attorneys told Tenant’s attorneys in a meeting that GSA 

would not raise any issues concerning the Emoluments Clauses. 

On March 3, 2017, OGC provided Terry with a legal memorandum from DeMuth and Tozer 

instructing him

 The memorandum acknowledged, however, 

According to the memorandum, 

Terry told us that he did not consider the Emoluments Clauses in his analysis because they were 

not included within the “four corners of the lease.” Terry went on to say that he thought the 

Foreign Emoluments Clause was relevant to the lease but that the Clause has broader 

implications for the President and that it was most likely another government body that would 

be responsible for making a decision. He also stated that it is not GSA’s role to focus on 

constitutional law and that he believes the courts should determine whether there was a 

constitutional violation. Terry nonetheless said that he tried to familiarize himself with the 

emoluments issues by reading news articles. 

 

* All of the redactions in this report contain information GSA asserts is protected from disclosure 

pursuant to the attorney-client and deliberative process privileges. 
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B. Section 37.19

The OPO team started working on the ground lease in 2009, but had little understanding of 

Section 37.19 when the provision became part of the lease. Terry told us that the section was 

used in other GSA outleases, such as the one for The Monaco Hotel, but doubted that the team 

spent more than 15 minutes discussing Section 37.19 among themselves, before he signed the 

OPO lease. Banks also told us he did not recall much discussion of the provision, and Tozer told 

us he did not recall any discussion of, or having any familiarity with, the provision.

1. Origins of Section 37.19

We found that Section 37.19 is based on an 1808 Act of Congress that prohibited Members of 

Congress from participating in contracts or agreements with the United States, and subjected 

Members and government officers who made such contracts to criminal prosecution.28 This 

early Act also provided that every federal government contract or agreement must include a 

prohibition that: 

... no member of Congress shall be admitted to any share or part of such contract or 

agreement, or to any benefit to arise thereupon.29

This wording remained in the public contract laws when, in 1983, the Pennsylvania Avenue 

Development Corporation (PADC) executed a lease for the redevelopment of the historic 

Willard Hotel. The provision in the Willard Hotel lease stated:

No member or delegate to Congress, or elected official of the Government of the 

District of Columbia, shall be admitted to any share or part of this Lease, or to any 

benefit that may arise therefrom; but this provision shall not be construed to extend to 

this Lease if made with a corporation for its general benefit.30

GSA later inherited oversight for the lease after PADC dissolved.31

OGC attorney Jeffrey Domber used the Willard Hotel lease as a template for GSA’s 1999 

outlease of the Tariff Commission Building/General Post Office, a National Historic Landmark, 

for its redevelopment as The Monaco Hotel by Kimpton Hotels and Restaurant Group Inc.

Domber surmised that he added the language “or elected official of the Government” to the 

admitted clause because he thought interested parties should include United States officials, 

and not just be limited to elected officials of the D.C. government. He told us the clause was 

intended to minimize a public official’s interference with the commercial operation of the 

government landlord and included elected officials “period.” Domber told us he also added 

language to Section 37.19’s proviso clause, about beneficial ownership interests in entities, at 

the suggestion of the lessee’s attorneys.32 Domber said that the clause never became an issue 

in negotiations, he assumed because the Kimpton did not include anyone with political 

ambitions. As a result, the revised clause used in the Monaco Hotel lease stated in full:

No member or delegate to Congress, or elected official of the Government or the 

Government of the District of Columbia, shall be admitted to any share or part of 

this Lease, or to any benefit that may arise therefrom; provided, however, that 
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this provision shall not be construed as extending to any Person who may be a 

shareholder or other beneficial owner of any publicly held corporation or other 

entity, if this Lease is for the general benefit of such corporation or other entity.

GSA made no changes to the Monaco Hotel lease Interested Parties provision when 

pasting it into OPO lease Section 37.19. By the time GSA executed the OPO lease, 

Congress had revised the 1808 language used in Section 37.19 “... to conform to the 

understood policy, intent, and purpose of Congress in the original enactments ....”33 The 

revised language stated: “A Member of Congress may not enter into or benefit from a 

contract or agreement or any part of a contract or agreement with the Federal 

Government.”34

GSA did not consider Section 37.19 a material term of the OPO lease, and it was not discussed 

during lease negotiations.35 There also was no discussion on the OGC OPO team about Section 

37.19’s impact if Trump became President, in view of his earlier presidential bids. Terry, 

however, told us that he was aware of Trump’s earlier interest in the presidency but it was not 

a consideration during lease negotiations because at the time Terry thought a Trump 

presidency unlikely.

2. GSA Review of 37.19

As with the emoluments issue, GSA personnel first began seriously discussing the meaning of 

Section 37.19 shortly after the election. Following the publication of the first of several articles 

about Section 37.19 on November 15, 2016, the OGC attorneys working on the OPO project 

began discussing whether President Trump’s business interest in the OPO lease constituted a 

breach of the section.

36 Terry told us that he immediately formed an opinion, based on his 

“plain reading” of Section 37.19, that there was no breach of Section 37.19; however, he waited 

to formalize his opinion because he was willing to consider other points of view. According to 

Terry, OGC attorneys Segal, Tozer, and DeMuth approached him before the inauguration

 

As noted earlier, Trump had a majority interest in Tenant, in which several other business 

entities also held a small interest each. On December 16, Tenant sent Terry a letter indicating 

that President-elect Trump “intends to assign all of his interests in Trump Old Post Office 

Member Corp to DJT Holdings Managing Member LLC” and that Tenant anticipated that the 

transfer would occur no earlier than January 1, 2017. On January 11, 2017, the President-elect

and Tenant’s counsel, Sheri Dillon, held a press conference announcing that the President-elect 

would relinquish leadership and management of the Trump Organization and voluntarily 

donate all profits from foreign government payments made to his hotel to the United States 

Treasury.

37 

President Trump was sworn into office on January 20, 2017. After the inauguration, Tenant’s 

counsel notified Terry that the President had transferred his interest in the Old Post Office to a 

revocable trust and relinquished his management over that interest, for the period of his 

presidency; however, he still retained his financial interest in the property. 
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OGC lawyers, Terry, and Banks met with Tenant representatives Donald J. Trump, Jr., Eric 

Trump, and counsel on January 31, 2017, to discuss Tenant’s new organizational structure.38

Terry told us that during the January 31, 2017, meeting, he strongly encouraged the President’s

divesture from Tenant. Terry told us that he pushed hard for divestiture in discussions with 

Tenant’s representatives to provide value to the government, not because he thought that the 

lease was breached. Terry said he wanted to get the OPO out of controversy so he encouraged 

divestiture to try and prevent any issues related to emoluments, even though emoluments 

issues were not GSA’s responsibility to consider. However, Terry stated he did not have a solid 

position to force a complete divestiture since there was not a breach of the lease. In addition to 

the January 31, 2017 meeting, one or more OGC attorneys met separately with Tenant’s 

counsel to review documents.

On February 10, 2017, Terry solicited Tenant’s position and analysis on whether Tenant was in 

“full and complete compliance” with the Lease, specifically Section 37.19.39 Counsel for Tenant 

responded February 17, 2017, concluding that, among other points, (1) Section 37.19 does not 

apply when an elected official is “admitted to” a lease before their election and (2) Tenant is an 

“other entity” under Section 37.19’s exception for owners who have a beneficial interest in a 

“publicly held corporation or other entity.”40 After receiving Tenant’s response, Terry requested 

a legal opinion from OGC. 

OGC’s March 3, 2017 memorandum for Terry 

The memorandum ultimately 

 

On March 20, 2017 Tenant provided further analysis of its position and requested a certificate 

stating that it was in full compliance with Section 37.19 of the lease and that the lease was valid 

and in full force and effect.41 The same day, Terry requested further guidance from OGC. OGC 

responded 

C. Contracting Officer’s Decision

Terry communicated his decision to Tenant on March 23, 2017. Terry told us he looked at the 

four corners of the lease and the plain meaning of its language. He considered Tenant’s letters 

that explained its interpretation of the lease language.

42 Terry also considered the OGC 

opinions. Terry concluded that Tenant satisfied his interpretation of the admitted clause. His 

decision memorandum to Tenant stated that “most of the review and reporting on Section 

37.19 has focused on only a few select words, and reached simplistic ‘black and white’ 

conclusions regarding the meaning and implications of the clause.” However, Terry noted, “it

has been less widely reported that other legal professionals and former government 

contracting officials have reviewed the language and come to different conclusions,” and cited 

one such press article.43 
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On March 23, 2017, Terry issued the Estoppel Certificate Tenant requested. His accompanying

letter stated his determination that Tenant was “in full compliance with Section 37.19 and, 

accordingly, the Lease is valid and in full force and effect.”44

Terry stated that no one inside or outside GSA pressured him to render any specific decision 

about Section 37.19. He stated that he had no meetings with the Administrator, other GSA 

leadership, or the Presidential Transition Team about Section 37.19. Terry also stated that he 

could not remember speaking with anyone in GSA other than Tozer and DeMuth about the 

lease, and that Acting Administrator Horne (who served in that position from January 20, 2017 

to December 11, 2017) was not involved in the decision-making process.

At the time he issued the Estoppel Certificate, Terry knew that OGC recognized a violation of 

the Foreign Emoluments Clause might be relevant to a breach and that this important issue 

remained open. Nonetheless, he did not qualify his certification.

III. Analysis

As noted earlier, the OGC lawyers responsible for providing guidance on the OPO lease 

acknowledged that the President’s interest in the lease might violate the Foreign Emoluments 

Clause, and thus constitute a breach of the lease. However, despite recognizing the 

emoluments issue, they decided not to address it and went on to advise Terry on the Section 

37.19 issue without benefit of analysis of the constitutional issue.

In this section of the report, we evaluate whether GSA should have addressed the issue raised 

under the Emoluments Clauses as part of its administration of the lease. To do so, we first 

consider whether, as GSA acknowledged, the Emoluments Clauses might apply to the benefits a 

government officer or employee receives from private business activities. We then address 

GSA’s reasons for ignoring the constitutional issue, and the effect this had on its analysis of 

Section 37.19 of the lease.

A. The Emoluments Issue

To evaluate whether the Emoluments Clauses might apply to the benefits a government officer 

or employee receives from private business activities, we surveyed sources that show the 

contemporaneous use and meaning of the term “emolument” during the Founding Era. We also 

considered how the Supreme Court understood the meaning of the term, by reviewing the 

Court’s opinions that might show general usages over long periods of time. Finally, we 

considered publicized accounts of the first President’s private purchases and sales that may 

show a historic practice of presidential business activities with the United States and foreign 

states. 

If “emoluments” include an official’s gains from private business activities, the President’s 

interest in the lease raises at least potential constitutional issues. The Foreign Emoluments 

Clause becomes relevant if the hotel receives payments from or on behalf of foreign 

governments, or a foreign instrumentality, when its representatives stay or hold events at the 

hotel or otherwise use its services. The Presidential Emoluments Clause becomes relevant if the 
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United States or a State of the United States similarly pays for the use of the hotel’s services, or

if Tenant receives other benefits from the government related to the hotel.

Although the term emolument may be archaic, it is a term that the United States government, 

including GSA, currently uses in security clearance agreements. This is not an isolated use.

Nearly three million federal employees and contractor personnel (2,865,402 as of October 

2015) have signed agreements that:

assign to the United States Government all royalties, remunerations, and emoluments

that have resulted, will result or may result from any disclosure, publication, or 

revelation of classified information not consistent with the terms of this Agreement.45

The impetus for these assignments was a 1980 Supreme Court opinion that considered a 

former Central Intelligence Agency officer’s publication of a book for his private gain about 

agency intelligence activities. The Court imposed a constructive trust over the former officer’s 

proceeds from his book to deny him any pecuniary benefit from violating his contract with the 

agency for prepublication review.46 The assignments on security clearance forms achieve the 

same result, by removing the profit incentive from misusing classified information for personal 

benefit.

These standard form agreements, available or referenced on GSA’s public and internal 

websites, recognize that a government officer’s private business activities produce

emoluments. This much also is apparent from the current dictionary definition of “emolument”

as the “... profit or perquisites from office, employment, or labor: fees, salary,” as well as an 

archaic use meaning advantage and benefit.47

A word’s meaning in the 21st century, however, is not necessarily the same as the meaning in 

the late 18th century when the new United States adopted the Constitution. As discussed 

below, we found evidence that the term had varied meanings at the time of the Constitution’s 

adoption and ratification; these meanings included the income or other benefits a public officer 

receives from private business activities; and that usage continued after the Founding Era to 

the present day, as the government’s security clearance agreements illustrate.

1. First Congress and Emoluments

The Supreme Court recognizes that the laws enacted by the First Congress provide 

“contemporaneous and weighty evidence of the Constitution’s meaning” since many of the 

Members of the First Congress had taken part in framing that instrument.48 We identified four 

laws that the First Congress enacted that use the terms “emolument” or “emoluments.”

An Act to establish the Treasury Department created senior officers for the Department of 

Treasury. The enactment did not permit these officers to “directly or indirectly ... take or apply 

to his own use, any emolument or gain for negotiating or transacting any business in the said 

department, other than what shall be allowed by law.” Any official convicted of violating these 

prohibitions committed a high misdemeanor and was fined, removed from office, and barred 

from holding any office under the United States.49
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An Act for the Government of the Territory of the United States, south of the river Ohio

addressed the “powers, duties and emoluments” of a superintendent of Indian affairs.50

An Act to provide more effectually for the collection of the duties imposed by law on goods, 

wares and merchandise imported into the United States, and on the tonnage of ships or vessels

addressed the “fees and emoluments” that collectors of customs, naval officers, and surveyors 

received for performing their duties.51

Finally, An Act to incorporate the subscribers to the Bank of the United States created the Bank 

of the United States as a government chartered but privately owned entity, and provided that 

the Bank’s directors could not receive “any emolument” unless approved by stockholders at a 

general meeting.52

In these enactments, “emolument” was the officers’ gain from conducting “any business” with 

their agency (the senior Treasury officers); the officers’ compensation and benefits for 

performing public duties (the superintendent of Indian affairs and the customs officers); and 

the benefits a private person receives from private office or employment (in the case of the 

Bank directors).

2. Contemporaneous Dictionaries

The First Congress’s differing uses of “emolument” corresponds to the definitions found in late 

18th century dictionaries. The Supreme Court often looks to Samuel Johnson and Thomas 

Sheridan’s dictionaries for the meaning of terms from the Founding Era.53 Both define 

“emolument” simply as profit or advantage throughout the pre-Revolutionary and Founding 

eras. Other leading dictionaries of the time likewise defined “emolument” as advantage, profit, 

gain, or benefit.54

Contemporaneous dictionaries also defined “emolument” as the gain or profit obtained 

through one’s labor, investment, or cost. For example, Nathan Bailey’s dictionaries alternated 

between defining emolument as “Advantage, Profit” and defining the term as “gain arising from 

the grist of a corn-mill” and “profit gotten by labour and cost.” Another treatise that explained 

the synonyms “Gain, Profit, Lucre, Emolument” stated: “Emolument relates to commissions and 

employments; intimating not only the salaries, but all other perquisites.”55

Although published after the Constitution, Noah Webster’s 1828 American Dictionary similarly 

defined “emolument” as: “1. The profit arising from office or employment; that which is 

received as a compensation for services, or which is annexed to the possession of office, as 

salary, fees and perquisites. 2. Profit; advantage; gains in general.” Webster’s definition of 

“office” was not limited to public office, but included: “Duty or employment of a private nature; 

as the office of a midwife” and “Business; particular employment.”56

3. Emoluments in English Law

Perhaps the most important contemporaneous resource for English lawyers during our colonial 

period was Blackstone’s Commentaries on the Laws of England (1769) (Blackstone’s 

Commentaries).57 The framers of the Constitution were familiar with Blackstone’s 
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Commentaries, which was distributed extensively in the American colonies and “constituted

the preeminent authority on English law for the founding generation.”58

Blackstone used the term “emolument” in varied contexts, rather than as a specialized legal 

term of art. Among these uses, “emolument” included: 

• Benefits that belonged to “public or private employment;”

• Interests in property;

• Income attached to a benefice, or ecclesiastical office; and

• Monetary benefits a bankrupt received for surrendering his property.59

In Blackstone’s time, the term office not only meant public (and religious) offices, but also 

private offices, such as business and private employment.60 For example, the public “bailiff” 

made arrests. The private bailiff managed a farm or manor and collected rents.61 Both those 

holding public office and those holding a private office, or employment, received “the fees and 

emoluments thereunto belonging.”62

English court decisions of the period also illustrate the types of emoluments or benefits that a 

person acquired from private business endeavors. A person operating a ferry under a franchise 

or license was entitled to the profit and emolument from their endeavors.

63 A person who built 

a bridge next to his mill did so for his own profit and “private emolument.”64

4. The Founders’ Use of “Emolument”

The Founders’ records and other writings also show the varied contemporaneous general uses 

of the term emolument.

65 In 1786, James Madison wrote to Thomas Jefferson on behalf of 

himself and James Monroe proposing a plan through which Jefferson would use his private 

credit to obtain money for the purpose of investing in the purchase of land in New York “on the 

obligation of Monro[e] and myself, with your suretyship to be laid out by Monro[e] and myself 

for our triple emolument ....”66 Madison’s use reflects one of several common uses in the 

period:

• In 1784, George Washington conveyed reports that his gristmill manager and 

business partner had not been attentive to Washington’s interests: “But I hope your 

[Accounts] will give the lie to these reports, by shewing that something more than 

your own emolument was intended by the partnership ....”67

• In 1781, the Continental Congress passed a resolution that “’James Mease, late 

clothier-general, and William West, jun., his deputy or appointee: who, in 

conjunction with Major General Arnold, did, under colour of office, in the year 1778, 

take from sundry inhabitants of this city, great quantities of merchandise, not 

necessary for the army, which were converted to their private emolument’” and 

that “flagrant abuse of office and of the public confidence” merits “exemplary 

punishment.”68

• A representative in the North Carolina ratification debates in 1788 expressed 

concern with federal judges receiving “emoluments” from state governments 
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because: “It is impossible for any judges, receiving pay from a single state, to be 

impartial in cases where the local laws or interests of that state clash with the laws 

of the Union, or the general interests of America.”69

• One of the first acts of the Continental Congress in its 1774 Address to the People of 

Great Britain exemplifies another usage: “Prior to this era you were content with 

drawing from us the wealth produced by our commerce. You restrained our trade in 

every way that could conduce to your emolument.”70

5. The Supreme Court’s Use of “Emolument”

We also considered how the Supreme Court understood the meaning of the term emolument 

by reviewing the Court’s opinions that might show general usages over a long period of time. 

Although the Supreme Court has not interpreted any of the constitutional emoluments 

provisions, the Court frequently considered numerous statutory emoluments provisions that 

compensated federal officers, particularly the customs officers whose collections provided an 

important source of revenue for the new government. Successive Congresses changed the 

compensation formulae for these collectors, whose compensation typically included some 

combination of salary, fees and commissions they could charge, and a share of the monies they 

recovered for the United States in the form of penalties, fines, and forfeitures.71

The Supreme Court’s opinion in one case, Hoyt v. United States, 51 U.S. (10 How.) 109 (1850), is 

typical of the complexities that these changing compensation Acts presented. The government 

sued a collector for the collections he owed the Treasury. The collector relied on a 1799 Act 

that distinguished between “fees” and “emoluments.” He argued that an 1802 Act that capped 

the emoluments a collector may retain did not apply to his fees, meaning that the collector 

could retain all fees. Ultimately, the Court decided against Hoyt because an 1838 compensation 

Act controlled the dispute rather than the 1799 and 1802 Acts Hoyt relied upon.

72

Hoyt is important because it shows the Court recognized that “emolument” was a catchall term 

that included “every species of compensation or pecuniary profit derived from” the collector’s 

discharge of the duties of the office. Fees, fines, and similar terms “...denote a compensation 

for a particular kind of service...” that a public collector performed.73 In a different case heard 

by the Court, for example, the emoluments included an Army major’s emoluments: his personal 

subsistence, forage for two horses, and the pay, ration, and clothing allowance for two 

servants.74

The use of “emolument” as a catchall also appears in the Court’s opinions that employ the term 

to describe the gain that arises from private business activities, such as:

• The livelihood an attorney earned upon admission to practice before a court;75

• The benefits from using a ship for trade in commerce;

76

• The benefits a canal company received from a right to divert water for a dam and 

canal;77

• The benefits a patent owner received from a patent;78
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• The benefits private companies received for providing public services such as 

transportation, lighting, and water;79

• The benefits attached to corporate office;80

• The benefits the riparian owner gained from using navigable waterways; and81

• The benefits that attached to property interests.

82

This usage parallels the varied uses we found contemporaneous with the Constitution’s 

adoption and ratification, as well as the government’s use of emolument in its agreements with 

those government employees and contractors who receive access to classified national security 

information. 

6. Historical Practice

We also analyzed reports of Washington’s business activities for any evidence that he 

conducted private business during his presidency with the United States or foreign 

governments.83 The following summarizes what we found; additional information is available in 

the attached Appendix A.

Purchase of Lots. During and after his presidency, Washington purchased lots of land in the 

territory that Maryland ceded to the United States for the District of Columbia. His 

correspondence and other records show that Washington purchased two lots from proprietor 

(owner) Robert Peter and six additional lots during his presidency. If the United States owned 

the latter six lots, Washington’s purchase might provide a historical precedent that private 

business dealings did not offend the Presidential Emoluments Clause, which prohibits a 

President’s receipt of any emolument from the United States or a State. However, we found 

evidence in the historical records and other accounts that these six lots were owned privately.

Maryland’s cession of territory for the new District of Columbia did not give the United States 

any right of property “in the soil” of those who owned the land in the ceded territory. At the 

time Washington purchased the lots, trustees held ownership of the lots under agreements 

with the proprietors of the land, who had transferred their property to the trustees (in part, so 

that a share of the land could be sold to pay for the Capitol and President’s house and other 

government buildings). The proprietors’ trust agreements and Maryland law provided that the 

trustees retained ownership until title passed to the purchasers.

We also found evidence that the commissioners who conducted the sales of the lots acted 

pursuant to authority held by the trustees, rather than under authority of the United States.

Although Congress authorized commissioners to survey the new district and otherwise prepare 

for the government’s movement to the new district, the commissioners’ involvement in the 

sales did not appear to give Washington a benefit from the United States. Congress did not 

include sales among the commissioners’ authorities, much less the sales of land that was 

owned privately. Maryland law did give the commissioners authority to sell land that the United 

States did not own, but only through condemnation proceedings, and then only in very limited 

circumstances. All this suggests that the commissioners’ authority to sell lots held by the 
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trustees appears to be derived from the proprietors’ trust agreements and Maryland law, not 

from any authority conferred by the United States.

Sales of Flour. President Washington’s gristmill produced flour that was sold locally and 

overseas. The Foreign Emoluments Clause prohibits the President (and others holding positions 

of trust under the United States) from receiving emoluments “of any kind whatever” from 

Kings, Princes, and foreign states (which include foreign government controlled 

instrumentalities). The Clause does not prohibit receiving emoluments from domestic or foreign 

merchants that ship to a port in a foreign country.

We found evidence that before the Revolution, Washington sold flour, as well as herring, corn, 

and tobacco to merchants who sold overseas to London, Lisbon, and ports in the West Indies, 

including other English colonies; and Washington himself shipped produce overseas.84 Our 

review of Washington’s publicly available correspondence, however, found no evidence that he 

sold flour or other produce during his presidency to a foreign government directly or to a 

merchant whom Washington knew to represent a foreign government.

In sum, we found evidence that the term “emolument” as used historically and today includes 

the gain from private business activities. As noted above, if emoluments include an official’s 

gains from private business activities, the President’s interest in the lease raises potential 

constitutional issues.

B. GSA’s Reasons for Ignoring the Emoluments Issue

As described above, by mid-December 2016, OGC’s senior attorneys on the OPO project agreed 

there was a possible violation of the Foreign Emoluments Clause but decided not to address the 

issue. As one senior attorney told us, OGC decided to “punt.” 

We conclude that decision was improper for several reasons: (1) as a federal agency, GSA is 

subject to the Constitution, which also is incorporated into the OPO lease; (2) GSA already had 

determined that the Foreign Emoluments Clause bars a federal employee from doing business 

with a foreign government in his private capacity, a conclusion reinforced by instruction OGC 

received from OGE; (3) OGC ignored OLC’s binding legal opinions on the Emoluments Clauses, 

even though OGC OPO attorneys knew that OLC issued opinions involving both President 

Reagan and President Obama; and (4) OGC failed to seek OLC’s guidance, even though the GSA 

OPO attorneys knew that OLC issued opinions on the Foreign and Presidential Emoluments 

Clauses.

1. GSA Ignored the Constitution

OGC lawyers told us they ignored the emoluments issues and that constitutional issues rarely

arise within GSA’s work. They also stated that the Foreign Emoluments Clause is not in GSA’s 

purview, and not for GSA “to evaluate.” OGC lawyers also justified their inaction by stating that 

Section 37.19 is a specific lease provision but the Foreign Emoluments Clause raised larger 

issues. 
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The notion that GSA can disregard selected parts of the Constitution fundamentally ignores 

Article VI of the Constitution. Clause 2 in Article VI establishes the whole Constitution as “the 

supreme Law of the Land” and, therefore, it governs every agency. As an executive agency of 

the United States, both GSA and its employees have an obligation to ensure that agency actions 

comply with the law, whether the lease incorporates the Constitution or not. Using the 

language some witnesses employed, the Constitution most certainly is in GSA’s purview. 

Moreover, the lease, by its very terms, contemplates that laws will be considered even if they 

are not specifically included in the text. For example, Section 6.2 of the lease prohibits Tenant’s 

use of the premises “for any purpose or in any way” that violates the applicable laws (including 

the Constitution).85 This provision has little meaning if GSA cannot rely on those very laws 

because they are not stated verbatim in the lease.

More to the point, Section 37.2 of the lease provides expressly that “federal laws of the United 

States” govern (except in limited instances where District of Columbia laws apply).86 The 

Constitution certainly is the law of the United States and, consequently, applies to the lease, 

even if those terms are not mentioned expressly in the lease. The contracting officer’s and 

other witnesses’ assertions that the Constitution’s emoluments provisions fall outside the four 

corners of the lease renders the above provisions meaningless, by drawing an artificial 

distinction that simply cannot be reconciled with the very provisions of the lease that 

incorporate the laws of the United States. Like any other federal agency, it is not only 

appropriate that GSA address potential violations of the Constitution that arise with its 

activities, GSA cannot ignore them. GSA did not fulfill that obligation. Therefore, the contracting 

officer may have approved an interest in the lease that the Constitution forbids. 

Finally, OGC’s March 3, 2017 memorandum for Terry 

However, OGC attorneys 

also told us that the decision not to consider the Constitution’s provisions was made by midDecember 2016, several weeks before the first lawsuit was filed that raised emoluments 

challenges to the lease.87 It is noteworthy, moreover, that GSA’s reluctance to consider the 

emoluments issues did not inhibit the contracting officer from granting an Estoppel Certificate 

that determined, before the judges rendered any decisions, that Tenant was in compliance with 

the terms and conditions of the lease, terms that included compliance with the Constitution.

2. OGC Ignored Nonbinding Precedents and Instruction

The agency also disregarded existing precedent and instruction that provided important 

guidance for understanding the contours of the constitutional provisions GSA confronted.

Significantly, we found that OGC had already addressed the threshold question that the lease 

presents: Does the Foreign Emoluments Clause restrict the income or other benefits that an 

officer or employee receives from their private business activities with foreign states? 

At least as early as 2013, OGC recognized that a Foreign Emoluments Clause issue could arise 

when a GSA employee sought a waiver to participate in an outside real estate company in the 

Washington D.C. area.88 When the issue arose, the employee’s supervisor, with the assistance 
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of an OGC ethics advisor assigned to the matter, who worked under Segal (a designated Ethics 

Official), issued a decision memorandum that partially granted the waiver and cautioned the 

employee:

[B]e aware that because you are requesting to conduct business in the Washington D.C. 

area, you are beholden to the Emoluments Clause which states:

“No Title of Nobility shall be granted by the United States: And no Person holding 

any Office of Profit or trust under them, shall, without the Consent of the 

Congress, accept of any present, Emolument, Office, or Title, of any kind 

whatever, from any King, Prince, or foreign State.” U.S. Constitution Article I, 

Section 9, Clause 8 (art. I, § 9, cl. 8)

Therefore, you are prohibited from doing any business with another Country (for 

example any transaction regarding an Embassy or Residence.)

Tozer (one of the Standards of Conduct Counselors) knew about this memorandum and asked 

for a copy when a similar waiver issue arose. 

The emoluments guidance OGC provided in 2013 comports with the instruction that OGC 

received from OGE. Shortly before the election, on September 23, 2016, OGE issued a Legal 

Advisory to all Executive agency ethics officials on post-employment restrictions. The 

instruction included restrictions on employment or compensation from a foreign government 

for certain civilian retirees who remain subject to the same restrictions that the Foreign 

Emoluments Clause imposes on current employees.

89

3. OGC Ignored Binding Department of Justice OLC Precedents

OGC also disregarded the opinions of the Department of Justice’s OLC on the Foreign 

Emoluments Clause and the Presidential Emoluments Clause. OGC understood that OLC 

provides guidance on constitutional issues. Deputy General Counsel Loewentritt, OGC’s senior 

career attorney, acknowledged that questions about constitutional issues under the 

Emoluments Clause are something for OLC to address. One of the OGC attorneys also 

acknowledged reading the OLC opinion involving President Reagan, which addressed the 

purpose of the Foreign Emoluments and the Presidential Emoluments Clauses and conducted a 

dictionary analysis of the term emolument.90 That attorney also knew about an OLC opinion 

which addressed the application of the Foreign Emoluments Clause to President Obama’s 

receipt of the Nobel Peace Prize.91

OGC could have obtained an understanding of the emoluments issues simply by reviewing 

OLC’s published opinions. OLC’s “core function” is to “provide controlling advice to Executive 

Branch officials on questions of law that are centrally important to the functioning of the 

Federal Government.”92 We found that OGC attorneys understood that “OLC opinions are 

controlling on questions of law within the Executive Branch.”93

Importantly, as noted above, OLC’s legal opinions on the Foreign Emoluments Clause and the 

Presidential Emoluments Clause include one opinion involving President Barack Obama and 
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another involving President Ronald Reagan. Those and other OLC emoluments opinions provide 

the following guidance:

1. The Foreign Emoluments Clause encompasses “every kind of influence by foreign 

governments upon officers of the United States ...” in view of its “expansive language 

and underlying purpose.”94

2. The Foreign Emoluments Clause applies to a federal employee’s stipend or 

consulting fees from a foreign governmental entity in the employee’s private 

business capacity.

95

3. The President holds an “Office of Profit or Trust,” as used in the Foreign Emoluments 

Clause, which reaches not only foreign states but also their instrumentalities, 

determined by an inquiry into whether the decision to confer a particular gift is 

subject to the foreign government’s control or influence.

96

4. The Foreign Emoluments Clause prohibits a federal employee’s private business 

arrangement with a U.S. company, where a foreign government selected the 

company in order to acquire the federal employee’s expertise, and the foreign 

government was the actual source of the company’s payments to employee.97

5. The Foreign Emoluments Clause does not permit a part time federal officer to 

receive income from a private business partnership that includes earnings from a 

foreign government client, even though the officer had no involvement with that 

client.98

6. The Foreign Emoluments Clause prohibits a federal employee, who holds an office of 

profit or trust under the United States, from receiving compensation of any sort 

arising out of an employment relationship with a foreign state.99

7. The Presidential Emoluments Clause “was designed to protect ‘the independence 

intended for him [the President] by the Constitution,’ so that neither Congress nor 

the states could ‘weaken his fortitude by operating on his necessities, nor corrupt 

his integrity by appealing to his avarice. Neither the Union, nor any of its members, 

will be at liberty to give, nor will he be at liberty to receive, any other emolument 

than that which may have been determined by the first act.’” An inquiry into 

whether the Presidential Emoluments Clause permits a particular benefit involves an 

inquiry into the purpose of the Clause and the dictionary meaning of the term 

emolument.100

4. OGC Failed to Seek Guidance from OLC

Finally, OGC also could have sought guidance from OLC directly, but did not. We found that 

OGC is familiar with seeking guidance from OLC, and had requested advice from OLC during the 

period covered by this report. We found that, after eight Members of Congress sought 

information about the OPO, OGC knew to request OLC guidance in February 2017.
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As shown above, OLC has issued numerous emoluments opinions, including issues relating to 

former Presidents Reagan and Obama. The meaning and application of the Foreign Emoluments 

Clause and the Presidential Emoluments Clause are precisely the types of issues that OLC has 

shown it is willing to consider, particularly when there is a “practical need” for guidance.101 One 

of the OGC OPO lawyers recognized the significance of these opinions, citing the Reagan 

opinion for the purpose test and citing the Obama opinion as an example of a controlling 

opinion on the Foreign Emoluments Clause. 

OGC confronted a similar problem 20 years ago when OGC sought guidance on a complex 

business structure between six entities, in which two Members of Congress held beneficial 

interests through blind or excepted trusts, and a real estate investment trust that held 

government leases. The proposal raised a question whether the interests of the Members 

under the proposed transaction violated the criminal statutes, based on the 1808 Act that 

prohibited Members from entering in or holding federal government contracts. OGC sought 

guidance from OLC because of the statutory bar to Members of Congress contracting with the 

government. Within two months, OLC issued two opinions that rejected several alternatives 

suggested by the entities at issue, but also identified for GSA’s General Counsel one alternate

arrangement suggested by the entities that satisfied the law.102 OGC charted a different course 

here.

The President’s nomination in July 2016 alerted GSA that the agency might face novel issues 

with the OPO lease. OGC had ample time to review OLC’s emoluments opinions to understand 

what the Constitution requires under OLC’s existing precedents and work with OLC to address 

any emoluments issues in the event of his election. We recognize that under its OLC Best 

Practices, OLC addresses constitutional issues in the context of specific facts and circumstances, 

which changed in January 2017 as Tenant’s business structure changed.103 However, much as 

OGC and the Members of Congress discovered in 1998, OLC might have worked with OGC in 

order to determine whether Tenant’s current business structure or some other structure in 

OLC’s view would satisfy the Constitution’s restrictions, and those of Section 37.19. 

Instead, GSA chose to leave any Foreign Emoluments Clause and Presidential Emoluments 

Clause issues unresolved without seeking the type of OLC assistance that OGC sought in 1998 

when Members of Congress requested guidance. We conclude that GSA’s decision to ignore the 

Emoluments Clauses was improper.

C. Emoluments and Section 37.19 

We found that when OGC attorneys considered how Section 37.19 should be interpreted, they 

employed the standard tools attorneys use for interpreting language in contracts, statutes, and 

other legal documents: the rules that the Supreme Court and lower courts have developed 

through their decisions in cases.

We found that OGC did not, however, analyze the Constitution’s Foreign and Presidential 

Emoluments Clauses as they affected Section 37.19. As a consequence, OGC left the decision to 
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the contracting officer, who granted Tenant’s request for an Estoppel Certificate that leaves a 

constitutional cloud over the lease. 

1. Section 37.19

OGC determined 

They made this determination

a. Primary Clause: The first issue that arises is whether Section 37.19 bars an official from 

receiving a benefit under the lease if the official entered into the lease as a private person, 

before becoming a public official. The primary clause states:

No member or delegate to Congress, or elected official of the Government of the United 

States or the Government of the District of Columbia, shall be admitted to any share or 

part of this Lease, or to any benefit that may arise therefrom .... (Emphasis added)

This issue largely turns on what the term “admitted to” means. 

Tenant urged “admit” means to allow entry under current dictionary definitions. Consequently, 

the argument goes, President Trump was “admitted” to the lease before he became an elected 

official, and therefore, the prohibition does not apply to his business interest in the lease.104 

However, OGC recognized 

Moreover, OGC’s March 3, 2017 memorandum to 

Terry 

In revising the law in 2011, Congress removed the word “admitted” for the 

expressed purpose “... to conform to the understood policy, intent, and purpose of Congress in 

the original enactments, with such amendments and corrections as will remove ambiguities, 

contradictions, and other imperfections ....”105 

b. Proviso: The second issue arises with the proviso that creates an exception to the prohibition 

in the primary clause when an official fits the prohibition. The proviso states: 

... provided, however, that this provision shall not be construed as extending to any 

Person who may be a shareholder or other beneficial owner of any publicly held 

corporation or other entity, if this Lease is for the general benefit of such corporation or 

other entity. (Emphasis added)

Here, the issue primarily turns on whether “publicly held” modifies both “corporation” and 

“other entity.” 

Tenant applied the grammar rule to support its interpretation that “publicly held” does not 

modify “other entity,” because “other” is an intervening modifier. Consequently, as a limited 
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liability company, Tenant is an “other entity,” and Tenant falls squarely within the exception to 

the prohibition in the primary clause.

However, OGC recognized 

OGC also recognized 

This view is the same that the 

Supreme Court took in Duncan v. Walker, 533 U.S. 167 (2001), where the Court interpreted 

statutory language, “State post-conviction or other collateral review,” that closely parallels the 

phrasing found in Section 37.19, “publicly held corporation or other entity.” The Court rejected 

an interpretation that would render the word “‘State’” “insignificant, if not wholly superfluous” 

in the context of the particular statute under consideration.106 Similarly, OGC understood

107 One attorney told us GSA needs to 

change the clause moving forward

 

2. Constitutional Avoidance

Both OGC and Tenant relied on common rules of construction for their interpretations that 

courts employ for interpreting language in federal contracts and statutes, like the grammar rule 

and the rule that all words should be given meaning. As noted above, OGC recognized

In 

these circumstances, a third rule of construction becomes relevant: the rule of constitutional 

avoidance. 

Under the rule of constitutional avoidance, “where an otherwise acceptable construction ... 

would raise serious constitutional problems ...,” language should be interpreted to avoid the 

constitutional issues “unless such construction is plainly contrary to the intent of Congress.”108

This prudential rule has special relevance to a contract or lease where constitutional restraints 

may limit the agency’s own statutory authority, and by extension that of its contracting 

officer.109 

We found that at least some of the OGC OPO attorneys knew about the constitutional 

avoidance rule from researching OLC opinions starting in December 2016 for an understanding 

of the Seven Member Rule.110 For example, we found one attorney knew of an OLC opinion that 

stated “the familiar rule that courts will adopt an interpretation of a statute that will avoid 

constitutional questions.” However, we found that OGC did not consider in connection with the 

OPO lease whether GSA has an obligation to interpret its lease provisions to avoid 

constitutional questions.

OGC should have recognized from OLC’s authoritative Executive Branch precedents, as well as 

OGC’s own experience and instruction on emoluments, that the OPO lease presented serious 

constitutional questions. In this circumstance, the constitutional avoidance rule requires an 

inquiry to determine whether there are other plausible interpretations of Section 37.19 that do 

not present constitutional problems.111 Such an inquiry might have led, as we discussed earlier, 
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to discussions with OLC regarding a solution. Much like the discussions that yielded the solution 

OLC found for OGC in 1998, when Members of Congress sought to participate in a business 

structure that included government leases, those discussions might have led OLC to identifying 

options for GSA and Tenant that did not raise potential constitutional issues.

However, OGC refused to consider any constitutional implications and failed to conduct this 

inquiry. At the same time, OGC acknowledged in interviews with the OIG that if a constitutional 

violation is later found, the attorneys would look at Section 37.19 again. The difficulty, of 

course, is that GSA accepted Tenant’s interpretation of Section 37.19, and the contracting 

officer has issued his Estoppel Certificate. As a consequence, the constitutional issues are 

preserved rather than avoided. We found that GSA should have considered the potential 

impact of the Constitution on how Section 37.19 should be interpreted under the avoidance 

doctrine before issuing the Estoppel Certificate.

Moreover, the impact of GSA’s failure to do so extends beyond the OPO lease. Terry’s decision 

to grant an Estoppel Certificate also affects the Tariff Building lease, and any other leases that 

use similar provisions. At present, the Section 37.19 language has been included in at least one 

outlease executed subsequent to the OPO lease. In May 2016, GSA and Miami-Dade College 

finalized negotiations on a lease to renovate and use the historic David W. Dyer Building in 

downtown Miami. Other than relevant geographical substitutions, Section 37.19 has been 

copied and inserted in the lease wholesale for the Dyer Building.

IV. Conclusion and Recommendation

GSA administers and manages the ground lease for the Old Post Office Building that the 

Trump Old Post Office LLC (Tenant) redeveloped into a hotel. Following the 2016 election, it 

was necessary for GSA to consider whether President-elect Trump’s business interests in 

Tenant might cause a breach of the lease under Section 37.19, Interested Parties provision, 

upon his becoming President.

GSA’s analysis should have considered whether the Foreign Emoluments Clause or the 

Presidential Emoluments Clause of the U.S. Constitution barred the President’s business 

interest in Tenant. We found that GSA, through its OGC and PBS, recognized that the 

President’s business interest in the OPO lease raised issues under the Constitution’s 

Emoluments Clauses that might cause a breach of the lease, but decided not to address those 

issues in connection with the management of the lease. We also found that OGC improperly 

ignored these Emoluments Clauses, even though the lease itself requires compliance with the 

laws of the United States, including the Constitution. In addition, we found that GSA’s 

unwillingness to address the constitutional issues affected its analysis of Section 37.19 and 

the decision to grant Tenant an Estoppel Certificate. 

GSA’s decision-making process related to Tenant’s possible breach of the lease included 

serious shortcomings. GSA had an obligation to uphold and enforce the Constitution.

However, GSA opted not to seek any guidance from OLC and did not address the 

constitutional issues related to the management of the lease. As a result, GSA foreclosed an 
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opportunity for an early resolution to these issues, including a possible solution satisfactory to 

all parties; and the constitutional issues surrounding the President’s business interests in the 

lease remain unresolved.

In interviews with the OIG, OGC has acknowledged that if a constitutional violation were later 

found, they would have to revisit the issue of potential breach of the OPO lease’s Interested 

Parties provision; however, the fact remains that GSA continues to use the language of the 

provision in other leases. We recommend that before continuing to use the language, GSA 

determine the purpose of the Interested Parties provision, conduct a formal legal review by 

OGC that includes consideration of the Foreign and Presidential Emoluments Clauses, and 

revise the language to avoid ambiguity.

In its response to our draft report, GSA agreed with our recommendation. The agency’s

response is contained in Appendix B. 
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Endnotes:

1 The Foreign Emoluments Clause is found at U.S. Const. art. I, § 9, cl. 8. The Presidential Emoluments Clause is at 

U.S. Const. art. II, § 1, cl. 7.

2 U.S. Gen. Servs. Admin., Rep. of Material Provisions of the Old Post Office Dev. Agreement Submitted Pursuant to 

Old Post Office Building Redevelopment Act of 2008, Public Law 110-359 at 3 (2013) (GSA Rep. of Material 

Provisions).

3 Id.

4 Id.

5 Id.

6 Public Buildings Cooperative Use Act of 1976, Pub. L. No. 94-541, 90 Stat. 2505 (1976); GSA Rep. of Material 

Provisions at 3.

7 H.R. REP. NO. 110-724, at 3 (2008), available at https://www.congress.gov/congressional-report/110thcongress/house-report/724/1.

8 S. REP. No. 110-501, at 2 (2008), available at https://www.congress.gov/congressional-report/110thcongress/senate-report/501/1.

9 See GSA Rep. of Material Provisions at 4 (GSA’s redevelopment goals include “putting the OPO to its highest and 

best use”); see also S. REP. No. 110-501, at 2; H.R. REP. No. 110-724, at 3-4. NHPA, Section 111 is codified at 54 

U.S.C. § 306121.

10 Outlease also is a term GSA uses when the agency rents available space to private business as well as state and 

local governments. These properties can include retail shops, food service facilities, office space, warehouse space, 

or parking lots. See https://www.gsa.gov/real-estate/gsa-properties/outleasing.

11 Pub. L. No. 110-359, 122 Stat. 4005 (2008).

12 See GSA Rep. of Material Provisions at 4.

13 Old Post Office Building Redevelopment Act of 2008, Pub. L. No. 110-359, § 5, 122 Stat. at 4006-07.

14 U.S. Gen. Servs. Admin., Request for Proposals, Redevelopment of Old Post Office: Washington, D.C. (Mar. 24, 

2011); see also U.S. Gen. Servs. Admin., Old Post Office Redevelopment: Executive Factsheet 1 (2015); GSA Rep. of 

Material Provisions at 4 (2013).

15 Request for Proposals at 6.

16 U.S. Gen. Servs. Admin., Old Post Office Redevelopment: Executive Factsheet 2 (2015); GSA Rep. of Material 

Provisions at 5 (2013).

17 OPO Lease at 1.

18 The Act did not specify criteria for determining materiality. 
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19 GSA Rep. of Material Provisions at 6-10 (2013).

20 Ground Lease by & between the U.S. (as “Landlord”) & Trump Old Post Office LLC (as “Tenant”), Lease No: GS-LS11-1307 (Aug. 5, 2013) (available online at https://www.gsa.gov/reference/freedom-of-information-actfoia/electronic-reading-room); see also U.S. Gen. Servs. Admin., Old Post Office Redevelopment: Executive 

Factsheet 2 (2015); Letter from Kevin Terry, Contracting Officer, U.S. Gen. Servs. Admin., to Trump Old Post Office 

LLC 2 (March 23, 2017) (available online at https://www.gsa.gov/reference/freedom-of-information-actfoia/electronic-reading-room). 

21 See, e.g., Carol Ross Joynt and Shane Harris, UPDATED: Controversy Follows Donald Trump’s Winning Old Post 

Office Pavilion Bid, WASHINGTONIAN (June 19, 2012), available at https://www.washingtonian.com/2012/06/19/itsnot-all-smooth-sailing-for-trumps-post-office-renovation/; Steve Kelman, The Lectern: 2 1⁄2 cheers for GSA, Donald 

Trump and the Old Post Office, FEDERAL COMPUTER WEEKLY (June 6, 2014), available at 

https://fcw.com/blogs/lectern/2014/06/trump-develops-old-post-office.aspx. 

22 See, e.g., Rick Bockman, Handing over Trump Inc., THE REAL DEAL, NEW YORK REAL ESTATE NEWS (April 1, 2016) 

(Foreign Emoluments Clause and potential conflicts of interest), available at 

https://therealdeal.com/issues articles/handing-over-trump-inc/; Aram Roston and Daniel Wagner, Donald Trump 

Won Control Of A Prized D.C. Landmark – Here’s How, BUZZFEED (April 28, 2016) (potential conflict of interest), 

available at https://www.buzzfeed.com/aramroston/how-donald-trump-won-control-of-a-prized-dclandmark?utm term=.ewOX5EGZl6#.skLqNYPvgW; Russ Choma, Donald Trump Has a Huge Conflict of Interest That 

No One’s Talking About, MOTHER JONES (Aug. 15, 2016) (conflict of interest), available at

https://www.motherjones.com/politics/2016/08/trump-conflict-of-interest-old-post-office-hotel/. 

23 See Letter of Rep. Cummings, DeFazio, Connolly, and Carson to GSA Administrator Roth (Nov. 30, 2016) (section 

37.19); Letter of Sen. Warren and Carper to GSA Administrator Roth (Dec. 1, 2016) (Section 37.10, Presidential 

Emoluments Clause, Emoluments Clause); The Madison Project FOIA request (Jan. 10, 2017). 

24 General Counsel Durmer served in this position from September 2009 until the Presidential Inauguration on 

January 20, 2017. Deputy Counsel Loewentritt was Acting General Counsel from January 20, 2017 until May 12, 

2017. 

25 This report uses Foreign Emoluments Clause and Presidential Emoluments Clause where the context of a 

document or interview suggests the reference is to one or the other. Emoluments Clauses refers to both.

 

26 Four attorneys in OGC told us that they did not contact or request guidance from OLC. General Counsel Kris 

Durmer declined to be interviewed.

27 See Citizens for Responsibility and Ethics in Washington v. Trump, No. 1:17-cv-00458 (S.D.N.Y. filed Jan. 23, 

2017).

28 See An Act concerning public contracts, ch. 48, §§ 1, 3 - 4, 2 Stat. 484-85 (1808). The early Acts of Congress are 

publicly available in searchable PDF on the Library of Congress website at https://www.loc.gov/law/help/statutesat-large/. 

29 Id. at § 3. Versions of these provisions remain in force today in the criminal and public contract laws of the 

United States Code. See 18 U.S.C. §§ 431-432; 41 U.S.C. § 6306(a). 

30 Amended & Restated Agreement of Lease Between Penn. Ave. Dev. Corp, Landlord, & Willard Assocs., Tenant 

(Dec. 21 1983) (on file with author). 
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31 See 41 U.S.C. § 22 (1982) (historical) (providing that “no Member of or Delegate to Congress shall be admitted to 

any share or part of such contract or agreement, or to any benefit to arise thereupon”), available at 

https://www.loc.gov/item/uscode1982-014041001/. 

32 Domber recalled that the attorneys explained that lessee had other partnerships and was considering a limited 

partnership with an opaque ownership structure.

33 Pub. Law No. 111-350, § 2(b) (“CONFORMITY WITH ORIGINAL INTENT”), 124 Stat. 3677, 3677 (Jan. 4, 2011).

34 Id. at 3805-06; 41 U.S.C. § 6306(a) (Jan. 4, 2011) (effective date). 

35 See U.S. Gen. Servs. Admin., Rep. of Material Provisions of the Old Post Office Dev. Agreement 4 (2013).

36 Steven Schooner & Daniel Gordon, Trump Leases His D.C. Hotel from a Government Agency He’ll Soon Be in 

Charge Of, THE WASHINGTON POST (Nov. 15, 2016), available at 

https://www.washingtonpost.com/posteverything/wp/2016/11/15/trump-needs-to-give-up-his-trump-hotellease-right-now/?utm term=.c8bb57f331ce. 

37 Transcript of Donald Trump’s News Conference: Full Transcript & Video, N.Y. Times (Jan 11, 2017) 

https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-transcript.html. 

38 See Kevin Terry Mar. 23, 2017 Letter to Donald J. Trump, Jr. at 4, available at 

https://www.gsa.gov/reference/freedom-of-information-act-foia/electronic-reading-room (Contracting Officer 

Letter).

39 See Kevin Terry Feb. 10, 2017 Letter to Trump Old Post Office LLC at pdf. 13-19., Exhibit 1.A to Kevin Terry Mar. 

23, 2017 Letter to Donald J. Trump, Jr., available at https://www.gsa.gov/reference/freedom-of-information-actfoia/electronic-reading-room (Contracting Officer Letter).

40 See Sheri A. Dillon Feb. 17, 2017 Letter to Kevin Terry at pdf. 21-32., Exhibit 1.B to Kevin Terry Mar. 23, 2017 

Letter to Donald J. Trump, Jr., available at https://www.gsa.gov/reference/freedom-of-information-actfoia/electronic-reading-room (Contracting Officer Letter).

41 See Sheri A. Dillon Mar. 20, 2017 Letter to Kevin Terry at pdf. 35., Exhibit 1.C to Kevin Terry Mar. 23, 2017 Letter 

to Donald J. Trump, Jr., available at https://www.gsa.gov/reference/freedom-of-information-act-foia/electronicreading-room (Contracting Officer Letter).

42 See Kevin Terry Mar. 23, 2017 Letter to Donald J. Trump, Jr. at 1, available at 

https://www.gsa.gov/reference/freedom-of-information-act-foia/electronic-reading-room (Contracting Officer 

Letter).

43 Id. 

44 Id. at 8.

45 Standard Form 312 (Rev. 7-2013), Classified Information Nondisclosure Agreement, at ¶ 5 (“SF 312”), available 

at https://www.gsa.gov/forms-library/classified-information-nondisclosure-agreement-0; National 

Counterintelligence and Security Center, 2015 Annual Report on Security Clearance Determinations at 5 (reporting 

2,865,402 personnel with access to classified information), available at 

https://www.dni.gov/index.php/newsroom/reports-publications/reports-publications-2016/item/1603-2015-

annual-report-on-security-clearance-determinations. 
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46 Snepp v. United States, 444 U.S. 507, 514-516 (1980). Following Snepp, the government adopted SF 189 (8-83), 

the predecessor to SF 312. See Classified Information Nondisclosure Agreement (SF-189), at 31 (Answer to 

Question 8), available at https://babel.hathitrust.org/cgi/pt?id=uiug.30112075638277;view=1up;seq=5; see also

id. at 36 ¶ 5 (SF 189 emoluments provision).

47 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, UNABRIDGED at 742 (1993) (capital letters omitted).

48 Bowsher v. Synar, 478 U.S. 714, 723-24 (1986) (concluding that the First Congress’s rejection of an amendment 

to a bill that established the Department of Foreign Affairs was evidence that the Constitution does not 

contemplate an active role for Congress in the supervision of Executive officers) (internal quotation marks and 

citation omitted).

49 An Act to establish the Treasury Department, ch. 12, §§ 1, 8, 1 Stat. 65, 67 (Sept 2, 1789). The early Acts of 

Congress are publicly available in searchable PDF on the Library of Congress website at 

https://www.loc.gov/law/help/statutes-at-large/.

50 An Act for the Government of the Territory of the United States, south of the river Ohio, ch.14 § 2, 1 Stat. 123 

(May 26, 1790).

51 An Act to provide more effectually for the collection of the duties imposed by law on goods, wares and 

merchandise imported into the United States, and on the tonnage of ships or vessels, ch.35, §§ 53-54, 1 Stat. 145, 

171-73 (Aug. 4, 1790).

52 An Act to incorporate the subscribers to the Bank of the United States, ch. 10, § 7(IV), 1 Stat. 191, 193-194 (Feb. 

25, 1791).

53 See, e.g., Arizona State Legislature v. Arizona Indep. Redistricting Com’n, __ U.S. __, 135 S. Ct. 2652, 2671 (2015)

(consulting Johnson and Sheridan dictionaries, as well as those by Nathan Bailey and Noah Webster, in construing 

the meaning of “legislature” in the Election Clause).

54 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (10th ed. 1792); id. (6th ed. 1785); id. (4th ed. 1773); id. (1st

ed. 1755); 1 THOMAS SHERIDAN, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (3d ed. 1790); id. (2d rev. ed. 1789); 1 

THOMAS SHERIDAN, A GENERAL DICTIONARY OF THE ENGLISH LANGUAGE (1780). See also WILLIAM PERRY, ROYAL STANDARD 

ENGLISH DICTIONARY (6th American ed. 1788) (defining “emolument” as “advantage, profit”); THOMAS DYCHE & WILLIAM 

PARDON, A NEW GENERAL ENGLISH DICTIONARY (18th ed. 1781) (defining “emolument” as “benefit, advantage, profit, &c. 

[sic]”). See also GEORGE WILLIAM LEMON, ENGLISH ETYMOLOGY (1783) (defining “emolument” as “used to signify any

advantage, or gain”).

55 Compare NATHAN BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (24th ed. 1782) (defining “emolument” as 

“Advantage, Profit”) with NATHAN BAILEY, THE NEW UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (7th ed. 1776) (defining 

“emolument” as “properly gain arising from the grist of a corn-mill; also profit gotten by labour and cost”); 1 JOHN 

TRUSLER, THE DISTINCTION BETWEEN WORDS ESTEEMED SYNONYMOUS IN THE ENGLISH LANGUAGE 96 (2d ed. 1783).

56 See, e.g., 1, 2 NOAH WEBSTER, AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). Webster defined emolument’s 

adjective form, emolumental, as “Producing profit; useful; profitable; advantageous.” Id. (vol. 1).

57 References to Blackstone’s Commentaries are to the 1771 fourth edition, published in Dublin, for Book 1, and to 

the 1771-72 America edition, reprinted in Philadelphia, for Book 2. We use the America edition in view of that set 

of Blackstone’s Commentaries’ purchase by several Founders, including 16 signatories to the Declaration of 

Independence, President John Adams, and the father of John Marshall, later Chief Justice of the Supreme Court. 
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See Wilfrid Prest & Michael Widener curators, 250 Years of Blackstone’s Commentaries: an exhibition at 11-12 

(2015), available at https://digitalcommons.law.yale.edu/britlaw; see also 

https://archive.org/details/commentariesonla177204blac/page/n5 (listing subscribers). We did not locate a digital 

copy of the America edition’s Book 1, and accordingly rely on the fourth edition of Blackstone’s, available at

https://archive.org/details/commentariesonla711blac/page/n3 (1 Blackstone). For Book 2, America edition, see

https://archive.org/details/commentariesonla02blac/page/n5 (cover page, noting the edition is reprinted from the 

British copy with the last edition) (2 Blackstone).

58 Alden v. Maine, 527 U.S. 706, 715 (1999); see also Schick v. United States, 195 U.S. 65, 69 (1904) (“Blackstone’s 

Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the 

adoption of the Federal Constitution ... it has been said that more copies of the work had been sold in this country 

than in England; so that undoubtedly, the framers of the Constitution were familiar with it”).

59 2 Blackstone, ch. 3 at 36 (discussing the “fees and emoluments” belonging to offices of “public or private 

employment”); 2 Blackstone, Appendix No. II at iv (describing interests in land to include “...woods, underwoods, 

ways, waters, water-courses, fishings, privileges, profits, easements, commodities, advantages, emoluments ...”); 1 

Blackstone ch. 18 at 470 (the glebe, or land, and tithes “vested in the then parson ... as a temporal recompense to 

him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards 

continue as a recompense for the same care”); 2 Blackstone, ch. 31 at 471-72 (“the law of bankrupts ... has given 

them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole 

estate to be divided among their creditors”).

60 2 Blackstone, ch. 3 at 36 (discussing “office”); see also 2 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (6th

ed. 1785) (definition of “office”). Other definitions include an agency or “peculiar use,” voluntary acts of good or ill, 

acts of worship, devotions, and places for conducting business. Id.

61 1 SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785) (definition of “bailiff” as a subordinate 

officer, an officer who makes arrests, or an understeward of a manor). For a description of the duties of public and 

private bailiffs, see ENCYCLOPAEDIA BRITANNICA, available at https://www.britannica.com/topic/bailiff. See also S.F.C.

MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW at 240 (noting that any management of land or a town house 

could make a person a bailiff) (Buttersworth, London ed. 1969); 1 Blackstone, ch. 9 at 345-46 (bailiffs as sheriffs’ 

officers who collect fines, served writs, and make arrests, among other duties).

62 2 Blackstone, ch. 3 at 36.

63 Blissett v. Hart, 125 E.R. 1293 (1744).

64 Rex v. Inhabitants of the West Riding of Yorkshire, 98 E.R. 364, 366 (1770) (discussing earlier decision).

65 For the relevance generally of the Founders’ statements, see Alden v. Maine, 527 U.S. at 716-19 (discussing 

Founders’ views on sovereign immunity during the ratification debates).

66 Correspondence of George Washington, Thomas Jefferson, and James Madison are available online from the 

National Archives, in cooperation with the University of Virginia Press, at Founders Online, 

https://founders.archives.gov/. The permalink for each document is styled: 

http://founders.archives.gov/documents/[Washington, Jefferson, or Madison]/[document specific number]. 

Citations are abbreviated to [Washington, Jefferson or Madison]/[document specific number]. From James 

Madison to Thomas Jefferson (Aug. 12, 1786), available at Madison/01-09-02-0026 (emphasis added).

67 From George Washington to Gilbert Simpson (Feb. 13, 1784), available at Washington/04-01-02-0084.
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68 19 Journals of the Continental Congress 40 (Jan. 9, 1781) (emphasis added), available at

https://memory.loc.gov/ammem/amlaw/lwjclink.html.

69 Remarks of Archibald Maclaine, North Carolina Ratification Debates (July 29, 1788), in 4 THE DEBATES IN THE SEVERAL 

STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION at 172 (emphasis added), available at 

http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-5-vols.

70 1 JOURNALS OF THE CONTINENTAL CONGRESS 81, 84 (Oct. 21, 1774) (emphasis added); First Continental Congress, 

Address to the People of Great Britain (Oct. 21, 1774), 1 American Archives Documents of the American 

Revolutionary Period, 1774-1776, 917, 918 (emphasis added), available at 

http://amarch.lib.niu.edu/islandora/object/niu-amarch%3A97565.

71 See United States v. Walker, 63 U.S. (22 How.) 299, 307-13 (1859) (discussing successive compensation 

enactments); JOHN M. DOBSON, TWO CENTURIES OF TARIFFS: THE BACKGROUND AND EMERGENCE OF THE U.S. INTERNATIONAL 

TRADE COMMISSION 1, 31 (1976) (stating that until 1913 “customs duties had accounted for between 50 and 90 

percent of the total Federal income” and including a chart showing customs duties accounted for over 80% of 

federal revenue from 1791 through 1800), available at https://www.usitc.gov/publications/332/pub0000.pdf; 

Enclosure I: Estimate of Receipts and Expenditures for 1801 (Mar. 14, 1801) (showing amount of income expected 

from imposts), available at https://founders.archives.gov/documents/Jefferson/01-33-02-0236. For a general 

discussion of the meaning of the terms imposts, duties and similar terms in the Founding Era, see Robert G. 

Natelson, What the Constitution Means by “Duties, Imposts, and Excises” – and “Taxes” (Direct or Otherwise), 66 

CASE W. RES. L. REV. 297 (2015).

72 Hoyt v. United States, 51 U.S. at 132, 135-137.

73 Id. at 135.

74 McLean v. United States, 226 U.S. 374 (1912).

75 Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 355 (1871).

76 Himely v. Rose, 9 U.S. (5 Cranch) 313, 319 (1809) (Johnson, J. separate opinion).

77 Rundle v. Del. & Raritan Canal Co., 55 U.S. (14 How.) 80, 93-94 (1852).

78 U.S. Gypsum Co. v. Nat’l Gypsum Co., 352 U.S. 457, 465 (1957).

79 See e.g., Commissioners of Buncombe Co. v. Tommey, 115 U.S. 122, 128 (1884).

80 Dirks v. S.E.C., 463 U.S. 646, 653 n. 10 (1983).

81 Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 432 (1855).

82 Richter v. Jerome, 123 U.S. 233, 234 (1887).

83 For relevance of historical practice, see, NLRB v. Canning, ___U.S.___, 134 S. Ct. 2550, 2559-60 (2014) (Recess 

Appointments Clause). Reports of Washington’s purchase of lots in what became the District of Columbia and 

foreign flour sales are found at George Washington’s Aggressive Real Estate Investment, available at 

www.mountvernon.org/george-washington/real-estate; Capitol Hill Townhomes, available at 

http://www.mountvernon.org/george-washington/the-first-president/george-washingtons-townhouses-in-capitol-
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hill; Ten Facts About the Gristmill § 9, available at http://www.mountvernon.org/the-estate-gardens/gristmill/tenfacts-about-the-gristmill/.

84 See Diary Entry (June 6, 1771) & ed. note (sales of flour to merchants that shipped to Jamaica, Lisbon, and the 

West Indies), available at Washington/01-03-02-0001-0015-0002; From George Washington to Robert McMickan 

(Jan. 12, 1773) & ed. notes 1 (shipping flour and herring for Barbadoes or Jamaica markets), available at

Washington/02-09-02-0122; Diary Entry (Apr. 2, 1775) & ed. note (Washington’s ship Farmer carried corn to 

Lisbon), available at Washington/01-03-02-0005-0008-0002; From George Washington to Robert Cary & Co. (Sept. 

20, 1759) & ed. notes 2 & 8 (tobacco shipped to London), available at Washington/02-06-02-0189-0001.

85 OPO Lease §§ 6.2, 37.10; see also id. § 1.1 (defining “Applicable Laws” and “Laws and Regulations”).

86 OPO Lease § 37.2.

87 See Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, No. 1:17-cv-00458 (S.D.N.Y. filed Jan. 

23, 2017).

88 The Supplemental Standards of Ethical Conduct for Employees of the General Services Administration impose 

restrictions on employees who “personally and substantially” participate in real estate activities as part of their 

official duties. 5 C.F.R. § 6701.104.

89 OGE LA-16-08 (Sep. 23, 2016) at Q. 3; see also 37 U.S.C. § 908.

90 President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 Op. O.L.C. 187, 1981 WL 

30896 (June 23, 1981).

91 Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of 

the Nobel Peace Prize, ___ Op. O.L.C. ___, 2009 WL 6365082 (Dec. 7, 2009).

92 Memorandum for Attorneys of the Office, Re: Best Practices for OLC Legal Advice and Written Opinions, at 1 (Jul. 

16, 2010) (“OLC Best Practices”), available at https://www.justice.gov/olc/best-practices-olc-legal-advice-andwritten-opinions.

93 Bradley Boettcher to Tim Tozer Email (Feb. 6, 2017), quoting and attaching Memorandum for Attorneys of the 

Office, Best Practices for OLC Opinion at 1 (May 16, 2005).

94 Applicability of Emoluments Clause to Proposed Service of Government Employee on Comm’n of Int’l Historians, 

11 Op. O.L.C. 89, 89-90, 1987 WL 256400 (July 30, 1987).

95 Emoluments Clause Questions Raised by NASA Scientist’s Proposed Consulting Arrangement with the University 

of New South Wales, 1986 WL 1239553 at *1 (May 23, 1986).

96 Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President’s Receipt of 

the Nobel Peace Prize, __ Op. O.L.C.__, 2009 WL 6365082, at *3-4, 7 (Dec. 7, 2009).

97 Application of the Emoluments Clause of the Constitution and the Foreign Gifts and Decorations Act, 6 Op. O.L.C. 

156, 1982 WL 170682 (Feb. 24, 1982).

98 Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. O.L.C. 114, 114, 119-120 

(O.L.C.), 1993 WL 777080 (Oct. 28, 1993); see also Applicability of the Emoluments Clause to Nongovernmental 

Members of ACUS, __ Op. O.L.C. __, 2010 WL 2516024 at *1 n.2 (June 3, 2010) (reversing earlier decision that 
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nongovernment member of the advisory committee Administrative Conference of the United States (ACUS) is 

covered by the Emoluments Clause, but not addressing other aspects of the 1993 opinion).

99 Payment of compensation to individual in receipt of compensation from a foreign government (Mr. Richard E. 

Newkirk, OAP) (O.L.C.), at 8 (Oct. 4, 1954), available at https://www.justice.gov/olc/page/file/935721/download.

100 President Reagan’s Ability to Receive Retirement Benefits from the State of California, 5 U.S. Op. O.L.C. 187, 188, 

1981 WL 30896 (June 23, 1981) (quoting THE FEDERALIST NO. 73).

101 OLC Best Practices at 3, available at https://www.justice.gov/olc/best-practices-olc-legal-advice-and-writtenopinions.

102 Applicability of 18 U.S.C. §§ 431-433 to Limited Partnership Interests in Government Leases under Proposed 

Modified Transaction, 22 Op. O.L.C. 33, 1998 WL 2027627 (Feb. 17, 1998); Applicability of 18 U.S.C. § 431 to 

Limited Partnership Interests in Government Leases, 22 Op. O.L.C. 41, 1998 WL 2027628 (Mar. 13, 1998).

103 OLC Best Practices at 2, 3.

104 See Sheri A. Dillon Feb. 17, 2017 Letter to Kevin Terry at 5-6., Exhibit 1.B to Kevin Terry Mar. 23, 2017 Letter to 

Donald J. Trump, Jr., available at https://www.gsa.gov/reference/freedom-of-information-act-foia/electronicreading-room (Contracting Officer Letter).

105 Pub. Law No. 111-350, § 2(b) (“CONFORMITY WITH ORIGINAL INTENT”), §3, 124 Stat. 3677, 3677, 3805-06 (Jan. 

4, 2011) (emphasis added); 41 U.S.C. § 6306(a) (2011) (emphasis added).

106 Duncan v. Walker, 533 U.S. 167, 174 (2001).

107 If “publicly held” does modify “other entity,” the proviso exception would apply to entities such as publicly held 

Real Estate Investment Trusts and publicly held partnerships, but not privately held business entities.

108 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988) 

(citations omitted).

109 For the general proposition that government agencies lack authority to violate the Constitution, see Larson v. 

Domestic & Foreign Commerce Corp., 337 U.S. 682, 697 (1949). By example, we would not expect GSA to assert 

authority to outlease space to a vendor that insisted on an unconstitutional racially restrictive covenant that 

permitted discrimination to those served. See generally, Shelley v. Kraemer, 334 U.S. 1 (1948) (restrictive 

covenants in housing). 

110 Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress, 6 Op. O.L.C. 632, 643, 

1982 WL 170732, at *10 (Nov. 5, 1982). The Seven Member Rule refers to 5 U.S.C. § 2954, which addresses 

requests for information from an Executive Branch agency when those requests come from seven Members of the 

House of Representatives Committee on Government Operations or five Senators on the Senate Committee on 

Governmental Affairs.

111 See Jennings v. Rodriguez, __ U.S. __, 138 S. Ct. 830, 842 (2018).
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APPENDIX A

The appendix describes the documentary evidence we found that Washington purchased 

privately owned lots in the District of Columbia during his presidency. The primary sources we 

consulted include:

• Acts of Congress (see above for online access), available at 

https://www.loc.gov/law/help/statutes-at-large/index.php.

• Session Laws of the Maryland General Assembly, available at

http://aomol.msa.maryland.gov/html/laws2.html.

• Correspondence of George Washington, Thomas Jefferson, and others available 

online from the National Archives, in cooperation with the University of Virginia 

Press, at Founders Online, https://founders.archives.gov/. The permalink for each 

document is styled: http://founders/archives.gov/documents/[Washington or 

Jefferson]/[document specific number]. Citations to Washington papers are 

abbreviated to Washington/[document specific number]. Similarly, citations to 

Jefferson papers are abbreviated Jefferson/[document specific number]. 

• Reports of The Commission to Investigate the Title of the United States to Lands in 

the District of Columbia (“Land Title Commission”), part of the Congressional Serial 

Set , available at https://catalog.hathitrust.org/Record/006228203 through the 

HathiTrust Digital Library:

o First Commission Report, Title of the United States to lands in the District of 

Columbia, S. Doc. No. 60-653, 60th Cong., 2d Sess. (Jan. 14, 1909), published 

in Congressional Serial Set No. 5407, at No. 653 (“First Commission Report”);

o Second Commission Report, Title of the United States to lands in the District 

of Columbia, S. Doc. No. 61-632, 61st Cong., 2d Sess. (June 16, 1910), 

published in Congressional Serial Set No. 5660, at No. 632 (“Second 

Commission Report”); and

o Third Commission Report, Title of the United States to lands in the District of 

Columbia, S. Rep. No. 62-907, 62d Cong., 2d Sess. (July 13, 1912), published in

Congressional Serial Set No. 6122, at No. 907 (“Third Commission Report”).

DISCUSSION

We found evidence in Washington’s correspondence that he purchased eight lots located in the 

District of Columbia during his presidency. His will, the accompanying schedule of properties, 

and the reports of the Land Title Commission confirm these purchases.1

If Washington purchased lots owned by the United States, that might be some evidence of an 

early historic practice that a President’s gain from private business activities with the United 
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States does not violate the Presidential Emoluments Clause.2 Our review considered any 

evidence that the United States owned the lots that Washington purchased during his 

presidency. We also considered any evidence that, even if the United States did not own the 

lots Washington purchased, the Commissioners’ participation in the sales provided a benefit

from the United States that might be viewed as an emolument. The evidence that we found 

suggests that Washington purchased privately owned property during his presidency. The 

evidence similarly suggests that the Commissioners’ participation in the sales did not provide a 

benefit from the United States.

1. Historical Context for Lot Sales: 

In July 1790, Congress enacted the Residence Act to implement the U.S. Constitution’s provision 

for a “Seat of the Government of the United States” under the United States’ exclusive 

jurisdiction.3 The Act authorized the President to prepare for the new government’s move to 

the new federal district in December 1800.4 Until then, Maryland law applied to the land it 

ceded.5

The Act created presidentially appointed Commissioners who were responsible for surveying 

and defining the boundaries for the new federal district. Congress also gave these 

Commissioners the power to purchase or accept land “for the use of the United States” and the 

responsibility for providing suitable buildings for the new government, including the Congress 

and the President. Congress authorized the President to appoint the Commissioners and to 

accept grants of money for the government.6

The possibility of using lot sales to fund public buildings arose when the principal landowners 

within the proposed Federal City (known as the proprietors) agreed that each would donate 

part of their land to “Trustees on behalf of the Public.”7 To accomplish their purpose, the 

proprietors executed deeds that conveyed land to two trustees, Thomas Beall and John Mackall 

Gantt.8 The deeds authorized Beall and Gantt to:

• Hold all or a part of the land for a federal city, laid out in streets, squares, and lots, 

as the President approves for the new city;

• Convey to the Commissioners all the streets and those squares, parcels and lots as 

the President shall deem proper “for the use of the United States forever;” 

• Make a fair and equal division of the remaining lots, returning one share to the 

proprietor and one share donated for sale on terms and conditions set by the 

President;

• Convey the complete, fee simple, ownership in the land to the purchasers of the lots 

sold; 

• Use the proceeds from the lot sales to pay the proprietors at the rate of £ 25 per 

acre for the squares and lots conveyed to the United States;
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• Transfer the remaining monies or securities from the sales to the President in order 

to achieve the purposes of the Residence Act by funding the construction of public 

buildings to house the government; and

• Upon the President’s request (which did not occur until November 1796), convey 

the trustees’ ownership interest in any unsold lots, not reserved to the proprietors, 

to the President or his designee.

9

Before the lot lines could be drawn, surveyors had to set the boundaries of the new territory, as 

well as prepare a plat of the new capital city that divided land into squares, and the squares 

into lots.10

Maryland’s General Assembly regulated the land sales in order to ensure purchasers received 

good title. A December 1791 enactment:

• Provided that Maryland’s cession of land did not vest any right in the land to the 

United States or disturb the rights of the individual land owners;

• Recognized that the proprietors had “conveyed their lands in trust” to Beall and 

Gantt;

• Extended the Beall and Gantt trusts to include interests in the land that the 

proprietors could not convey (such as the interests of minors);

• Authorized the Commissioners to condemn land in the city of Washington and two 

existing towns (Hamburgh and Carollsburgh) where some lot owners had not come 

to any agreement to deed to Beall and Gantt, and hold that land in trust; and

• Authorized the Commissioners to appoint a clerk for recording divisions and 

certificates of sales and payment.11

Doubts about the validity under Maryland law of the lot sales in the new federal district led the 

General Assembly to provide that any land recordings that satisfied its 1791 act also satisfied 

Maryland’s laws for passing good title.12 The General Assembly later provided that the 

certificates a purchaser received from the Commissioners, upon full payment for a lot, “shall be 

sufficient and effectual to vest the legal estate in the purchasers . . . without any deed or formal 

conveyance.”13

As required by the proprietors’ deeds to Beall and Gantt, Washington set the terms for the 

sales and approved the Commissioners’ authority to conduct public auctions and private sales

of lots.14 In practice, we found some evidence that the Commissioners set the date for a public 

sale and advertised the sale several months before securing Washington’s approval for the date 

of the sale.15 According to broadsides announcing public auctions, the Commissioners held the 

sales of the donated lots according to the deeds of trust and on the basis of bids.

16 When the 

Commissioners decided the bids fell below a lot’s value, there is some evidence that they 

placed bids on behalf of the public, to protect the public interest for sale later at a higher 

price.17 Commissioners also sold at private sales, and contemporaneous documents reflect that 
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the Commissioners might seek competing bids where more than one party expressed interest 

in a lot.18

2. Washington’s Lot Purchases During His Presidency: 

We found evidence that Washington purchased privately owned lots during his presidency. 

a. The Lots Purchased: 

Washington first purchased at a September 1793 public sale four lots (those allocated for sale 

to fund public buildings) in square 667, located in Carrollsburgh.19 The Commissioners sent 

Washington certificates that set the terms of payment for the lots and provided that, upon full 

payment, he “will be entitled to a conveyance of the said lot in Fee.” The Commissioners later 

sent Washington a Certificate for Purchase of Lots and payment of the price, “which by a late 

Act transfers the Title without the formality of Deeds.” The price for the lots was $ 1066.66, 

with interest. Washington later commented that he “paid pretty smartly” for these lots.20

Washington was unsuccessful in purchasing Hamburgh lots during the September 1793 sale, 

but the Commissioners later advised that a prospective buyer of a large number of lots 

expressed his willingness to defer to Washington’s interest.21 The following year, Washington 

purchased two public lots in square 21 for £ 200 each.

22 We found some evidence that this was

twice the price that the Commissioners obtained in earlier sales for other lots near the planned 

site for the President’s House (the White House).

23 Washington later purchased two adjacent 

lots from a private owner, Robert Peter, and received a deed from Peter in 1795.

24 

b. Ownership of the Lots Purchased in Commissioner Sales: 

We found that Maryland’s cession of land for the new district ceded sovereignty to the United 

States over the Maryland portion of the new federal district, but not title to the land. The 

Maryland General Assembly’s 1791 Act expressly provided that nothing in its cession for the 

new District of Columbia “... shall be so construed to vest in the United States any right of 

property in the soil, as to affect the rights of individuals therein ....”25 

We also found evidence that the allocation of lots for the public to fund construction projects 

also did not give the United States ownership and divest the proprietors’ trustees from their 

ownership and obligations for the donated land. The Land Title Commission reviewed the 

available records of these divisions and concluded that “the lands devoted to sale for the 

purpose of securing funds for erecting buildings were not set forth in the agreements of 

division as becoming the property of the United States.”26 Instead, the Commission found that 

“... in each assignment the apportionment is to the ‘public’ and not to the United States.”27

The six public lots that Washington purchased during his presidency appear to be among the 

lots that the proprietors donated for sale, in order to raise funds for the President’s House 

(White House), the Capitol, and other government buildings (and return a share of the proceeds 

to the proprietors). We found evidence that Washington understood that the public lots he 

purchased were held privately by the trustees, not by the government.28 Broadsides for the 

Commissioners’ 1793 sale announced that the sales would be made “according to the deeds in 
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trust of the lands within the city.”29 Under those deeds, Beall and Gantt, not the United States,

“conveyed to the respective purchasers fee simple.”30 Washington’s correspondence reflects 

that he understood the significance of purchasing the complete, fee simple ownership of land.31

The Land Title Commission concluded that “the course of title of the lands involved seems to be 

perfectly clear” during the period of his presidency when Washington purchased lots: the “sale 

of lands by the commissioners automatically divested from the original trustees ....”32 The Land 

Title Commission found that “the course of the title” became less clear when, at Washington’s 

request as provided by the proprietors’ trust agreement, Beall and Gantt conveyed their 

interests to the Commissioners on November 30, 1796.

33 This occurred after Congress directed 

that lots be sold in order to repay loans needed for preparing the new government seat.

34 At 

that point, the Commissioners replaced Beall and Gantt as trustees, and acquired the prior 

trustees’ fee simple ownership in the lands donated in trust for the public.

35

Prior to November 30, 1796, however, the evidence we found indicates that the title to the 

public lots that the Commissioners sold passed directly from the trustees, Beall and Gantt, to 

the purchasers (such as Washington). Based on this evidence, it appears that Washington 

purchased lots during his presidency from the trustees and from a private landowner (Peters).

3. The Commissioners’ Authority for Selling Lots:

We also considered whether the Commissioners’ participation in the sales, alone, gave 

Washington a benefit from the United States. Accordingly, we considered the source for the 

Commissioners’ authority to conduct sales.

As noted above, the Residence Act expressly gave the Commissioners the power to purchase or 

accept land; but the Act did not include authority to sell land, much less sell land that the 

United States did not own. Maryland law did not give the commissioners authority to sell land 

that the trustees held in trust. The General Assembly only gave the Commissioners authority to 

condemn and sell land of owners who would not execute deeds with trustees Beall and Gantt, 

after the owners received valuation.36

The proprietors’ deeds to the trustees authorized that the “... lots shall and may be sold at any 

time or times in such manner and on such terms and conditions as the president of the United 

States for the time being shall direct ....”37 Washington, in turn, exercised the authority given to 

him by the deeds of trust when he authorized the Commissioners to conduct public and private 

sales, as the Broadsides advertised.38 It appears then that the Commissioners’ authority derived 

from the private deeds of trust. The Residence Act did not include land sales among the 

authorities Congress granted the Commissioners in their capacity as United States officers. In 

these circumstances, the evidence we considered suggests that the Commissioners’ 

participation in the lot sales gave Washington a benefit from the proprietors’ private trust 

agreements with Beall and Gantt, rather than from the United States.

As noted above, the Commissioners’ role changed when Washington requested Beall and Gantt 

to transfer their interests under the trusts in 1796, as those documents provided. However, 

Washington did not make further lot purchases until after his presidency, when he purchased 
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two lots in September 1798 to build townhouses, a public lot in square 634 (which the 

commissioners now held in trust) and an adjacent private lot in the same square that he 

purchased from Daniel Carroll.39 The Presidential Emoluments Clause does not encompass a 

former President’s receipt of emoluments from the government.40 

We are mindful that disputes over the lot sales bred litigation for over 170 years. Something as 

fundamental as which plat was used for conveying the streets for the new city was not resolved 

for 102 years, and the United States’ ownership of the alleys not until the 1970s.

41 The 

government’s interest in the donated public lots was resolved 111 years after Washington’s 

presidency, with the District of Columbia Court of Appeals deciding that title to the lots donated 

for the public “never vested in the United States.” Rather “the fee passed through the trustees 

from the grantors to the purchasers,” while the United States “simply received the proceeds of 

the sales.”42 In view of the disagreements over the early sales long after Washington died, we 

relied on the plain language that appears in the contemporaneous documents prepared by and 

for the participants in those transactions as the best gauge for understanding 

contemporaneous meaning and historic precedent.

We recognize that there may well be contemporaneous evidence not yet found or that our 

review did not discover.

43 Consequently our report does not reach a definitive judgment on 

whether Washington’s lot purchases show a historic practice of the first President conducting 

private business with the United States. Nonetheless, the evidence that we found suggests that 

Washington purchased privately owned property during his presidency. The evidence similarly 

suggests that the Commissioners exercised authority under the proprietors’ trust agreements 

when they participated in the sale of six lots held by Beall and Gantt, the trustees, to 

Washington during his presidency. 
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Endnotes:

1 As discussed later, Washington purchased lots in squares 21 and 667 during his presidency. We found that 

Washington included these lots in his final will and accompanying schedule of properties, as well as lots in square 

634 purchased after his presidency. The Last Will and Testament of George Washington at 23, 39 n.44, 47-48 (John 

C. Fitzpatrick ed., Mt. Vernon Ladies’ Ass’n 1939), available at

https://archive.org/details/lastwilltestamen1939wash. See also First Commission Report at 13 (square 21), 47 

(square 667). 

2 Whether any business Washington had with the United States or any foreign government violated the Foreign or 

Presidential Emoluments Clauses also requires an examination of broader issues of constitutional interpretation, 

such as a structural analysis of the clause and an inquiry into its purpose. 

3 U.S. CONST. art. I, § 8, cl. 17. See An Act for establishing the temporary and permanent seat of the Government of 

the United States, ch. 28, §§ 1, 5-6, 1 Stat. 130 (Jul. 16, 1790) (Residence Act). An amended act provided that the 

President could include in the new federal district land on the Virginia side of the Potomac, but that public 

buildings had to be erected on the Maryland side. An Act to amend “An act for establishing the temporary and 

permanent seat of the Government of the United States,” ch. 17, 1 Stat. 214 (Mar. 3, 1791). 

4 Residence Act, at §§ 2-3, 6.

5 Id. at § 1.

6 Id. at §§ 2-4.

7 See Agreement of the Proprietors of the Federal District (Mar. 30, 1791) & ed. note, Washington/05-08-02-0016.

The agreement generally provided for their donation of land for the new city and that the lots created from the 

proprietors’ land shall be “joint property between the Trustees on behalf of the Public and each present 

Proprietor” and equally divided between them. The Agreement further provided for compensating the proprietors 

at a rate of 25£ per acre for the lands donated for public buildings and improvements. See also Second Commission 

Report at 5 (discussing the “evidence of the assignment of the lots to the public”). 

8 See Morris v. United States, 174 U.S. 196, 202-06 (1899) (reproducing text of Deed of David Burns). For similar 

deeds to Carrollsburgh and Hamburgh lots, see id. at 248-50 (quoting deeds) and United States v. Groen, 72 F. 

Supp. 713, 717 (D.D.C. 1947) (Carrollsburg proprietors’ deeds in trust to Beall and Gantt to carry out the 

proprietors’ agreements to “relinquish our rights to the said lots and lands, as the President or such 

Commissioners or persons acting as aforesaid shall direct, to secure to the United States the donation intended by 

this agreement”). For a digital copy of an original deed, see Indenture of Thomas Johns, et al. to Thomas Beall and 

John Mackall Gantt (Apr. 9, 1793), available at 

http://nationalbuildingmuseum.net/pdf/PubProg QuirksofL%27Enfant WhayneQuin 5-24-2012.pdf. 

9 Morris v. United States, 174 U.S. at 202-05; see also id. at 266 (trustees conveyed fee simple interest in lots to the 

Commissioners at Washington’s request on Nov. 30, 1796); see also Second Commission Report at 7 (same). 

 

10 For problems with the accuracy of survey lines, see To George Washington from the Commissioners for the 

District of Columbia (Mar. 11-12, 1793) & ed. notes 5, 8 (inaccurate measures and survey work certified that was 

not done), Washington/05-12-02-0230; Proclamation (Oct. 17, 1791) & ed. note (noting bidding on lots in 

connection with this sale was hampered by the lack of a printed plan, or plat of the city that showed the land 

divided into squares and lots), Washington/05-09-02-0052; From George Washington to David Stuart (Nov. 20, 

1791) (discussing Washington’s reaction to hearing that L’Enfant refused to provide a map of the new “Federal 

City” for satisfying purchasers at the sale), Washington/05-09-02-0118); To George Washington from the 
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Commissioners for the District of Columbia (Apr. 9, 1793) (discussing the need for replatting and redividing some 

squares), Washington/05-12-02-0344.

11 An Act concerning the territory of Columbia and the city of Washington, Laws of Maryland, Sess. 200, vol. 204, 

ch. 45, 572 (Dec. 19, 1791). 

12 A Supplement to the act, entitled, An act concerning the territory of Columbia, and the city of Washington, Sess. 

202, vol. 644, ch. 59, 689 (Dec. 23, 1792) (Early State Records Film No. 3181 (third column)). 

13 A Further supplement to the act concerning the territory of Columbia and the city of Washington, Sess. 203, vol. 

645, ch. 58, 63 (Dec. 28, 1793). This enactment alleviated the trustees from their obligation to provide a deed in 

order to transfer title. Conflicting claims over which proprietor owned the land, incomplete surveys, and the 

commissioners’ private sale of lots before the divisions of squares may have complicated the trustees’ ability to 

prepare a deed. See, e.g., Second Commission Report at 6 (noting difficulties in making divisions, in part, because 

there were conflicting claims of individual proprietors as to the ownership of particular squares); To George 

Washington from the Commissioners for the District of Columbia (Mar. 11-12, 1793) (finding inaccuracies in 

surveys and that surveyor did not accomplish some of the work he certified as done), Washington/05-12-02-0230; 

To George Washington from the Commissioners for the District of Columbia (Apr. 9, 1793) (need to correct the 

lines in some squares and replatting and redividing some squares), Washington/05-12-02-0344.

14Morris v. United States, 174 U.S. at 203-04 (quoting deeds). See also Proclamation (Oct. 17, 1791) & ed. note 

(authorizing sales and outlining terms and conditions), Washington/05-09-02-0052; From George Washington to 

the Commissioners for the District of Columbia (Sept. 29, 1792) & ed. note (authorizing public and private sales), 

Washington/05-11-02-0088; To George Washington from the Commissioners for the District of Columbia (Sept. 16, 

1793) & ed. note 2 (Commissioners’ authority for arranging public and private sales), Washington/05-14-02-0068.

15 See From Commissioners for the District of Columbia to George Washington (Sept. 16, 1793) & ed. notes 2-3 

(September 1793 sale advertised in January in a Philadelphia newspaper, the Gazette of the United States), 

Washington/05-14-02-0068. 

16 Broadside: Sale of Lots in the Federal City, (Oct. 8, 1792) (bids under three dollars not accepted), 

Washington/05-11-02-0108; see also Proclamation (Oct. 17, 1791) & ed. note (noting that bidding hampered 

because prospective buyers could not see how squares fit in the overall city plan), Washington/05-09-02-0052.

17 To George Washington from the Commissioners for the District of Columbia (Oct. 21, 1791) (four of the 35 lots 

sold in the first public sale “fall again to the public [and] those bids were to protect its Interest”), Washington/05-

09-02-0056.

18 To George Washington from the Commissioners for the District of Columbia & ed. note 3 (Apr. 20, 1795) 

(referencing commissioners’ letter notifying interested party that they will accept another offer unless “better 

terms are offered by others”), Washington/05-18-02-0044.

19 For the characterization of these lots as “public” lots, see Second Commission Report at 5, 30 (noting the division 

of lands “between the original proprietors and the public” and the “assignment of the lots to the public,” included 

in the tables as “Assigned to the United States”). Maps that show the numbered squares in Carrollsburgh and in 

Hamburgh where Washington purchased lots are included with a Washington letter, found at From George 

Washington to the Commissioners for the District of Columbia (Mar. 14, 1794), Washington/05-15-02-0289 (the 

maps were not part of Washington’s letter). Hamburgh was located in the Foggy Bottom area of Washington, D.C., 

and Carrollsburgh located near the confluence of the Potomac and Anacostia (the Eastern Branch) rivers bordering 

the city. The Supreme Court’s opinion in Morris v. United States, 174 U.S. at 219-21, also includes maps showing 

the Carrollsburgh and Hamburgh locations.
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20 Washington’s correspondence shows monetary amounts in dollars ($) and pounds (£). The report uses the 

currency indicated in the correspondence citied. For Washington’s purchase of lots in square 667, see Certificate 

for Lots Purchased in the District of Columbia (Sept. 18, 1793) & ed. note, Washington/05-14-02-0074; From 

George Washington to the Commissioners for the District of Columbia (Mar. 14, 1794) & ed. note 2, 

Washington/05-14-02-0068; To George Washington from the Commissioners for the District of Columbia (Mar. 23, 

1794) & ed. note 1, Washington/05-15-02-0331; From George Washington to the District of Columbia 

Commissioners (Sept. 28, 1798) & ed. note 3, Washington/06-03-02-0023. The certificate only covers lots 12-14, 

and Washington received a separate certificate for lot 5. The Land Title Commission found that Washington paid 

$306.66 for Lot 5 and $776 for lots 12-14, a total of $1082.66. See First Commission Report at 47. 

21 From George Washington to the Commissioners for the District of Columbia (Mar. 14, 1794), Washington/05-15-

02-0289; To George Washington from the Commissioners for the District of Columbia (Mar. 23, 1794) & ed. note 2, 

Washington/05-15-02-0331; From George Washington to the Commissioners for the District of Columbia (Apr. 11, 

1794), Washington/05-15-02-0442. 

22 To George Washington from the Commissioners for the District of Columbia (Apr. 23, 1794) & ed. note 2, 

Washington/05-15-02-0499; From George Washington to the Commissioners for the District of Columbia (June 1, 

1794) & ed. note 2, Washington/05-16-02-0139; Second Commission Report at 5, 19; see also note 19, supra.

23 To George Washington from David Stuart (Dec. 10, 1792) & ed. note 3 (discussing 15 lots sold near the 

President’s House for £ 100 each), Washington/05-11-02-0295; To George Washington from the Commissioners 

for the District of Columbia (Oct. 13, 1792) & ed. note 1 (24 lots sold near the President’s House for an average of

£ 85 per lot), Washington/05-11-02-0115.

24 For the purchases from Robert Peter, see To George Washington from the Commissioners for the District of 

Columbia (June 7, 1794) & ed. note 1 (discussing Peter’s willingness to sell and his execution of a deed to 

Washington for the lots on May 11, 1795), Washington/05-16-02-0161; From George Washington to the 

Commissioners for the District of Columbia (Mar. 24, 1795) & ed. notes 1-2 (Tobias Lear, Washington’s assistant, 

paid the balance for three lots, including both the lots that Robert Peter sold), Washington/05-17-02-0455. See

also First Commission Report at 5 (showing lots 1 and 4 assigned to the United States and lots 2 and 3 remaining 

with the proprietor); id. at 13 (showing a total payment of $ 2,133.32 for the four lots); Second Commission Report 

at 19 (showing lots 1 and 4 assigned to the United States and lots 2 and 3 assigned to the proprietor).

25 An Act concerning the territory of Columbia and the city of Washington, Laws of Maryland, Sess. 200, vol. 204, 

ch. 45, § 2 at 573 (Dec. 19, 1791).

26 Second Commission Report at 8. The Land Title Commission also found that the contemporaneous record of 

these assignments of lots is incomplete. Id. at 5-7; Third Commission Report at 17-22. According to the Land Title 

Commission, a division should include “an instrument signed by the original proprietors and by the commissioners 

and containing a plat of the square as it was divided into lots, with or without alleys, as the case might be, and a 

certificate of the date of division and the assignment by lots or by the whole square to the public or to the original 

proprietor" and then recorded. Third Commission Report at 17. 

27 Second Commission Report at 8. Although the assignments were to the public, the United States was the 

beneficiary of the proceeds from sales of donated land; and the Report refers to the public share as assignments to 

the United States and the United States conveyed lots. Id. at 3-4, 19. The Land Title Commission also noted that 

the distinction is “scarcely with a difference,” citing two specific instances where land assigned to the public was 

conveyed to the United States for the Washington Navy Yard and Marine barracks. Id at 8. We found evidence that 

the United States purchased the land for both the Washington Navy Yard and the Marine barracks. See To Thomas 

Jefferson from Samuel Smith (May 4, 1801) (reporting “pieces of ground purchased for the purpose of Navy Yards 

– to wit – New Hampshire, Boston, New York, Philadelphia, Washington, & Norfolk...”), Jefferson/01-34-02-0021; 

Memorandum from Thomas Munroe (June 15, 1802) ed. note (including query on “balance of about $2250 due for 

square purchased by U.S. for Marine barracks”), Jefferson/01-37-02-0492. 
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28 From George Washington to Thomas Beall (Nov. 10, 1796) (Early Access document), Washington/99-01-02-

01071; see also Morris v. United States, 174 U.S. at 266 (discussing Washington’s request that the trustees convey 

to the commissioners in fee simple all land subject to the trusts remaining unexecuted).

29 Broadside: Sale of Lots in the Federal City, § 8 (Oct. 8, 1792), Washington/05-11-02-0108; see also Proclamation 

(Oct. 17, 1791) & ed. note 1 § 8 (regulations providing that the conveyances shall be made pursuant to the deeds 

of trust), Washington/05-09-02-0052.

30 Morris v. United States, 174 U.S. at 203-04.

31 For examples of Washington’s familiarity with fee simple ownership, see From George Washington to John Gill 

(May 4, 1795) (offering to modify land sale by placing condition on the use of land until the payment of the full 

purchase price, “when you will be possessed of the fee Simple, & a legal right to do what you please with the 

land”), Washington/05-18-02-0081; From George Washington to James Ross (Aug. 29, 1795) & ed. note 3 (power 

of attorney prepared by Washington to dispose of fee simple interest in land), Washington/05-18-02-0399; From 

George Washington to Alexander Addison (July 8, 1796) (Early Access document) (describing his execution of a 

deed to convey an estate “in fee Simple”), Washington/99-01-02-00704; From George Washington to James 

Mercer (Dec. 12, 1774) & ed. note 3 (account of Washington’s acquisition of a tract of land to secure his ownership 

in fee simple), Washington/02-10-02-0143. 

32 Second Commission Report at 7-8. Under Maryland law, conveyance occurred the moment the commissioners 

received full payment: “the certificates granted ... to purchasers of lots in the said city, with acknowledgment of 

the payment of the whole purchase money, and interest, if any ... shall be sufficient and effectual to vest the legal 

estate in the purchasers ... without any deed or formal conveyance.” See A Further supplement to the act 

concerning the territory of Columbia and the city of Washington, Sess. 203, vol. 645, ch. 58 at 63, § 1 (Dec. 28, 

1793).

33 Second Commission Report at 7-8; see also Morris v. United States, 174 U.S. at 205; From George Washington to 

Gustavus Scott (Nov. 11, 1796), Washington/99-01-02-01073.

34 An Act authorizing a Loan for the use of the City of Washington, in the District of Columbia, and for other 

purposes therein mentioned, ch. 21 §§ 1-2, 1 Stat. 461 (May 6, 1796).

35 Second Commission Report at 8. With Beall and Gantt’s transfer of their trust interests and obligation, the 

Commissioners “had two sets of functions – first, as trustees to hold the donated lands, and second, as public 

officials to care for lands purchased by the United States and to dispose of the lands donated to the building fund 

when the identity of such lands should have been ascertained.” Id.

36 See An Act concerning the territory of Columbia and the city of Washington, Sess. Laws of Maryland, Sess. 200, 

vol. 204, ch. 45 §§ 4, 13, 574, 576 (Dec. 19, 1791). Section 13 of that Act repealed an earlier Maryland law 

that authorized the commissioners to condemn land “for the erection of public buildings, and for other public 

purposes.” An Act to condemn land, if necessary, for the public buildings of the United States, Sess. 199, vol. 204, 

ch. 44, 514 (Dec. 22, 1790). Washington was aware that merchants in the area of the new district had sought 

condemnation legislation from the General Assembly. To George Washington from William Deakins, Jr., and 

Benjamin Stoddert (Dec. 9, 1790) & ed. notes, Washington/05-07-02-0025; From George Washington to William 

Deakins, Jr., and Benjamin Stoddert (Feb. 17, 1791) & ed. note 2, Washington/05-07-02-0214.

 

37 Morris v. United States, 174 U.S. at 203 (quoting deed).

38 Id.; Proclamation (Oct. 17, 1791) ed. note 1 § 8 (providing “These regulations are the terms and conditions under 

and upon which conveyances are to be made according to the deeds in Trust of the Lands within the City”), 

Washington/05-09-02-0052; Broadside: Sale of Lots in the Federal City (Oct. 8, 1792) (providing “ALL Lands 
JE19-002

JE19-002 11

purchased at this Sale, are to be subject to the Terms and Conditions declared by the President, pursuant to the 

Deeds in Trust”), Washington/05-11-02-0108.

39 For these lots, see From Alexander White to George Washington (Sept. 8, 1798) & ed. note 1 (expressing opinion 

on the lots that might suit Washington’s plan to build two houses, and noting Washington’s subsequent purchase 

of public lot 16 and Daniel Carroll’s lot 6), Washington/06-02-02-0463; To George Washington from the District of 

Columbia Commissioners (Sept, 27, 1798) & ed. note 1 (discussing purchases), Washington/06-03-02-0020. For 

Washington building two connected houses on lots he purchased after his presidency, see From George 

Washington to the District of Columbia Commissioners (Sept, 28, 1798) & ed. note 2, Washington/06-03-02-0023. 

See also First Commission Report at 45 (Washington’s purchase of lot 16, square 634).

40 We found one post-presidency transaction that relates back to his purchases while President. In 1798, 

Washington complained that his square 667 purchases included water rights, but that these rights were not 

reflected in his certificates. From George Washington to the District of Columbia Commissioners (Sept. 28, 1798) & 

ed. note 3, Washington/ 06-03-02-023; see also Certificate for Lots Purchased in the District of Columbia (Sept. 18, 

1793) & ed. note 1 (lots 12-14 come with “a privilege of improving, in front of the Lot, into the Eastern branch”), 

Washington/05-14-02-0074.

The commissioners investigated and found Washington “clearly entitled to the water Lots” and compensated 

Washington by assigning him “4, 5, 6, and water front” east of square 667 covered by the cost of his 1793

purchase. To George Washington from the District of Columbia Commissioners (Oct. 3, 1798), Washington/06-03-

02-0038; First Commission Report at 47 (entry for square 667 “4, 5, and 6, water front” for Gen. Geo Washington, 

with the notation: “The amount received for this lot is included in that received for lots 12, etc., square No. 667.”); 

see also id. (entry for square 667 “lots 12, 13,and 14” with the notation “In this amount is covered the sum paid for 

lots 4, 5, and 6, square east of square No. 667.”). Our investigation did not find a certificate for these lots, and the 

lots do not appear in Washington’s will and accompanying schedule of properties (unlike the other lots he 

purchased), cited earlier. 

41See Morris v. United States, 174 U.S. at 252-71 (discussing the Ellicott and the Dermont plats); Washington Med. 

Ctr. v. United States, 545 F.2d 116, 121-126 (Ct. Cl. 1976) (alleys vested in the United States), cert. denied, 434 U.S. 

902 (1977). For other cases that addressed the early sales, see Oneale v. Thornton, 10 U.S. (6 Cranch) 53 (1810); 

Van Ness v. Mayor, Aldermen, and Bd. of Common Council of the City of Washington, 29 U.S. (4 Pet.) 232 (1830); 

Potomac Steam-Boat Co. v. Upper Potomac Steam-Boat Co,109 U.S. 672 (1884); Shoemaker v. United States, 147 

U.S. 282 (1893); Bursey v. Lyon, 30 App. D.C. 597 (Ct. App. D.C. 1908); Fowler v. Koehler, 43 App. D.C. 349 (Ct. App. 

D.C. 1915); Fitzhugh v. United States, 40 F. 2d 797 (Ct. App. D.C. 1930); United States v.Belt, 142 F. 2d 761 (D.C. Cir. 

1944); United States v. Groen, 72 F. Supp. 713; Campbell v. Morris, 1797 WL 430 (Gen. Ct. Md. May 1, 1797), rev’d

Ct. App. (June 1,1800).

42 Bursey v. Lyon, 30 App. D.C. at 608. 

43 See, e.g., Certificate for Lots Purchased in the District of Columbia (Sept. 18, 1793) ed. note (certificate of 

Washington’s purchase of lot 5 in square 667 included in a private sale), Washington/05-04-02-0074.
Appendix B endix B

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