Donald Trump’s multiple conflicts-of-interest and the Emoluments Clause of the Constitution

President-elect Donald Trump has canceled his planned Dec. 15 address set to explain how he would address his business conflicts of interest prior to assuming the White House, a senior transition source told NBC News. Trump Pushes Back Announcement on Business Conflicts of Interest:

The news of the cancellation was first reported by Bloomberg Monday evening, with Trump transition officials telling the publication that there is no date for the announcement, but it will be prior to his inauguration on Jan. 20.

Late Monday, Trump tweeted that he would be “leaving my busineses (sic) before January 20th” so he could “focus full time on the presidency.”

He added that “Two of my children, Don and Eric, plus executives, will manage them. No new deals will be done during my term(s) in office.”

Legal experts have noted that Trump’s sprawling business interests make him the most conflict-of-interest-prone president in modern history. He controls more than 500 companies across many industries and spanning the globe.

In fact, Rupert Murdoch’s Wall Street Journal editorialized that the only solution for Trump to avoid any conflicts of interest was to liquidate his stake in his company.

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As has been widely reported, Trump Could Be in Violation of the Constitution His First Day in Office. Norman Eiser, the former U.S. ambassador to the Czech Republic and a visiting fellow with the Governance Studies program at the Brookings Institution, and Richard Painter, a professor at the University of Minnesota Law School, was the chief White House ethics lawyer from 2005 to 2007, write:

With the recent news that two Republican electors are refusing to vote for Donald Trump, we have been inundated with inquiries asking whether other electors should decline to select Trump because of a particular constitutional issue. It’s one we worked on when we were advising Presidents Bush and Obama, respectively: the Emoluments Clause.

Every elector must search his or her own conscience, but after a blizzard of reporting on the president-elect’s foreign business relations in recent days, it appears that Trump will be in violation of this clause of the Constitution from the moment he takes office—and the plan for his business that he hinted at on Twitter last week does not solve the problem.

The Emoluments Clause of the Constitution stemmed from one of the Founders’ core concerns: foreign influence over our nation’s affairs. They worried that their new republic would, like the colonial governments the Americans had overthrown, once again come under the thumb of foreign rulers—if not by force of arms, by artifices of corruption. The term “emolument” comes from the Latin emolumentum, meaning profit or advantage, and emoliri, meaning to bring out by effort.

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[T]he Emoluments Clause, which provides “no 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.” It is the original financial conflict of interest law of the United States, and the only one embodied in the Constitution.

The Emoluments Clause applies to all persons holding an office of trust or profit with the United States government—no exceptions. It applies to the president, the vice president, and the members of Congress. No one is above the law. The founders could have exempted these elected officials in the plain language of the Emoluments Clause, but they did not, and for good reason. It makes little sense to prohibit foreign gifts from going to ambassadors and other officials if their elected bosses could simply accept the same gifts in their stead.

The Framers’ contemporary views illustrate that they clearly intended the clause to have the broadest possible scope. As Virginia debated the adoption of the Constitution, Governor Edmund Randolph made clear that the Emoluments Clause applied to the president when he said (in response to questions about whether term limits were needed for the president):

There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeached he may be displaced at the end of the four years. … He is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.

The Emoluments Clause prohibits the president from accepting anything of value from a foreign government. The clause expressly prohibits both “presents [and] emoluments…of any kind whatever.”

The Framers could not have been clearer: the president’s claim that something was not a gift, but was earned through his business or other effort still does not allow him to accept it. It would blow a giant loophole in the clause in terms of the Framer’s intent—preventing foreign sovereigns from corrupting American officials—to forbid presents but allow other things of potentially much greater value on the pretext (or actuality) that they were earned. Moreover, the Framers did not limit “emoluments” to cash or any other particular kind of thing of value. (Indeed, the root of emoliri is said to refer to the grinding done by a miller in exchange for a portion of the wheat or other payment.)

Thus, emoluments capture the cash-flows from foreign governments that Trump is seeking for his Washington, D.C., hotel, which has openly solicited business from foreign embassies, and potentially from the government permits and permissions that The New York Times and The Washington Post have noted are now starting to flow to stalled Trump building projects in Argentina and Georgia that suddenly restarted after his election.

As these examples make clear, this clause in the Constitution is hardly an anachronism. We are in danger of having a president who could violate it if he does not disentangle his business operations from foreign governments. The potential violations also include the benefits conferred on Trump in connection with outstanding loans from the Bank of China, which is controlled by the Chinese government, as well as any investment or involvement of sovereign wealth funds in his many projects around the globe, and foreign governments putting up their officials or diplomats at Trump hotels or even those governments buying apartments in his buildings—at times likely vying for the most expensive suites. All of this will become unconstitutional come January 20.

Nor is Trump’s Twitter announcement last week that he will completely exit his “business operations” enough. Although it is of course important that he have no involvement in Trump business operations, in order to avoid the constitutional conflicts, he must also exit the ownership of his businesses through using a blind trust or some other equally effective disposition. Otherwise he will have a personal financial interest in the foreign government payments and benefits that flow to his businesses daily.

The only workable solution to this problem (and Trump’s many other conflicts) is for him to do what ethics lawyers have been urging him to do for months, which is to divest himself of his business holdings before he becomes president.

Alternatively, the Constitution allows Congress to approve Trump’s receipt of this vast global flow of foreign government cash and other benefits to him. Congressional deliberation and oversight would confer the benefit of hearings and of offering some of the transparency about Mr. Trump’s holdings that have so far been denied to the public by his refusal to release his taxes. But we doubt that would be a politically attractive alternative to his fellow Republicans, and he probably could not count on support from the minority party. Accordingly, divestment and a blind trust is the way to go, and indeed, our proposal has been endorsed by an array of conservative voices sympathetic to Trump, including the Wall Street Journal, the New York Post, Peggy Noonan, and Peter Schweitzer, the author of Clinton Cash.

And what if Trump declines, as he has so far, to eliminate his foreign government emoluments that violate the Constitution? That brings us back to the Electoral College. Each elector should, as two have now done, review the Constitution and the facts, and his or her legal and moral obligations. Twenty-nine states and the District of Columbia require electors to vote consistent with the popular vote of his or her state; the others allow them to vote their conscience, as the Framers intended. Even in those states that bind electors, the constitutionality of the limits is unclear and penalties are generally light. Short of that, electors can move now to demand, individually or collectively, more information to inform their choice. And electors also have the option of raising these issues with the courts for guidance, for example through seeking a declaratory judgment that they need not cast their ballot as required by state law if doing so would elect a president who could violate the Constitution on his first day in office.

The Electoral College was intended to be a brake on a constitutionally or otherwise unqualified candidate for president. The Electoral College certainly could not vote for a man who was discovered to be too young to be president (under age 36), not naturally-born in the U.S. (remember all that fuss about birth certificates) or otherwise constitutionally disqualified.

Now, unless the foreign payments issue is resolved, there is significant evidence that Trump will be in violation of the Constitution when he takes the oath of office.

Trump is demonstrating no concern for his conflicts of interest and his ethical obligations under the Constitution. The Washington Post’s conservative blogger Jennifer Rubin reports, Trump is now inviting corruption:

trumpkidsPresident-elect Donald Trump is peddling the notion that he can let his sons run his businesses but make no “new” deals after he is inaugurated. On Wednesday, he held a meeting of tech giant chief executives in which three of his adult children and his son-in-law participated.

Ethics experts were flabbergasted. “Donald Trump’s children aren’t just family, they are tasked with running his business completely separate from his running the government. What we’ve seen so far is not an administration avoiding the appearance of conflicts of interest but one actively courting it,” said Jordan Libowitz of Citizens for Responsibility and Ethics in Washington. He continued, “The president-elect of the United States just brought in the heads of many of America’s largest companies to meet with him and the executives of his personal business. He is relying on the senior leadership of his business to help him pick Cabinet officials.” Libowitz added, “There is no explicable reason for his children to be so involved with the running of the government if their focus on the health of Trump’s business interests is what is supposed to allow him to avoid conflicts.” He reiterated what virtually every ethics expert has said: “If he is serious about a separation of government and personal business, he needs to sell the business outside of his family and place the assets in a blind trust.”

Trump seems to be intentionally and publicly blurring the line between his own finances and government business. “The first principle of avoiding corruption and illegality and wrongdoing is to maintain bright lines,” ethics expert Norman Eisen of the Brookings Institution told me in a phone interview. “His mixing of family business with the business of the U.S. is unprecedented.” He observed, “This is what we see in oligarchies, like with China’s princelings. We don’t expect princelings to be roaming the halls of the White House.”

The Trump transition ethics code expressly states, “I will disqualify myself from involvement in any particular transition matter which to my knowledge may directly conflict with a financial interest of mine, my spouse, minor child, partner, client or other individual or organization with which I have a business or close personal relationship. Where there is no such direct conflict, but there may be an appearance of a conflict, I will address this issue for resolution to the [President Elect Transition Team] General Counsel. I currently have no knowledge of any such conflicts.” We do not know if Trump’s adult children or son-in-law signed the document, but if they have it would seem Ivanka already violated it in sitting in the meeting with Japan’s prime minister. Reports have also surfaced that Trump’s sons are involved in vetting nominees. The separation between business and government seems to be, just as we imagined, nonexistent.

If any of the Trump children or Jared Kushner engage in any matters on the Trump Organization’s behalf with any of the tech companies in the room (or others they have interacted with during the transition) that too could be a violation — at the very least, the appearance of a conflict of interest. Can the four of them seriously claim that neither they personally nor on behalf of any Trump business have dealings with the companies (e.g., IBM, Apple, Microsoft, Google) or the governments (and their owned entities) whose representatives the princelings may have met with? Their mere presence in the room conveys to business execs and the entire world that Trump’s sons, who will run his business, are among his closest advisers. The Trump transition team did not respond to our inquiry asking if any of the children or Kushner signed the code of ethics document.

Meanwhile, on Wednesday, Rep. Elijah E. Cummings (D-Md.), the ranking member on the House Committee on Oversight and Government Reform, and several other Democrats held a press event on Trump’s ethical problems. They publicly implored Republicans to step up to the plate. So far we see no evidence that Republicans plan on doing so in the short term.

As Eisen put it, this all “augurs very ill” for the Trump presidency. “I’m disappointed as an American,” he said. “At the rate this is going [Trump] won’t make it through the first year without a major scandal — multiple scandals.” Meanwhile, Republicans whistle past the ethical graveyard.

It’s all about the control of power, the Constitution be damned.

One response to “Donald Trump’s multiple conflicts-of-interest and the Emoluments Clause of the Constitution

  1. American Vendetta

    We will soon find out who the true Americans are in Washington and who are the ones willing to shit on our founding principals for power.