Is President Trump’s Continued Family Control of his Business Violating the Part of the Constitution that Forbids Presidents from Taking Bribes from Foreign Powers?
When President Donald Trump was elected, he promised that he would “drain the swamp” of corrupt politicians in Washington D.C. As it turns out, however, the President’s currently-maintained ties to the Trump Organization, his business empire, may be more than just a potentially corrupting conflict of interest — they might in fact be illegal.
The Emoluments Clause is the part of the Constitution that specifies that it is against the law for a “Person holding any Office […] of Trust” in the United States government, to accept gifts, bribes, benefits, titles, positions of power, or, effectively, any material good, from any foreign head of state or foreign country, unless Congress specifically declares that he may. A President or US government official can’t, because of this Clause, take any kind of offer whatsoever from ‘any King, Prince or foreign State.’
The “Emoluments Clause,” or Article 1, Section 9, Clause 8 of the Constitution, states in full that:
“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.”
The standard way for elected officials (and even for their staffers) to handle the Emoluments Clause, and to deal with other ethics rules that ensure that elected officials and their staffers can’t be bribed while in office, especially by foreign powers, is for these officials as well as their senior staffers, to put their wealth or assets into blind trusts. That way not even the elected officials know what assets they own, and neither does anyone who might try to bribe them. They also can’t move the assets around themselves when they are in a ‘blind trust.’
But President Trump has decided not to go that route. Instead, the President has chosen to give control of his assets to his family members, rather than to put the assets, as his predecessors have, into blind trusts. He has given control of the Trump Organization to his two sons, Donald Trump Jr. and Eric Trump.
The then President-Elect tweeted in December:
Critics note that it really isn’t ‘blind’ to have one’s children managing one’s assets, and that it is all too easy for a businessman with wealth from foreign businesses and assets, to have foreign money or deals or benefits delivered via the President’s children, that effectively benefit and might sway the decisions of the Commander in Chief. The danger of this, they argue, is that the President could be influenced by interests outside those of the United States — or even by foreign powers with interests opposed to those of the citizens of the United States. It’s a pretty serious charge.
In 2009, the Office of Legal Counsel of the Department of Justice extended and strengthened this clause. It now applies not only to foreign governments, but also to companies under foreign powers. Presidents and elected officials in the US are not supposed to benefit directly while in office from personal profits from foreign companies.
This means that Trump’s continued connections to the Trump Organization may actually present a now-illegal conflict of interest. The Trump Organization owns a number of properties, golf courses, and hotels in a handful of countries globally. Millions of dollars are flowing from foreign-based companies and entities into the coffers of the Trump Organization, which is NOT in a blind trust — so all over the world, foreign nationals who do deals with Trump Organization businesses, are effectively doing deals with a sitting President. But the President’s Congressional colleagues, his State Department and his intelligence agencies’ agendas, may have foreign policy goals that may be in conflict with those profitable arrangements — which is just what the Emoluments Clause sought to avoid.
A new Resolution in the Senate, however, may pressure Pres. Trump to change these arrangements.
Some would say that this is not ‘blind’ enough. Many argue that, even if the Trump Organization refuses to make new deals, old deals may still be affected by Trump’s new policies, and that Pres. Trump is therefore susceptible to corruption.
One of these critics is Senator Ben Cardin (D-MD). Sen. Cardin has proposed a Resolution called S. Con. Res. 4, which, if passed, urges President Donald Trump to follow the Emoluments Clause by either adopting a proper blind trust, or else by creating some equivalent financial arrangement. It also calls on him not to make Presidential decisions that are in any way related to the objectives of the Trump Organization.
So far, twenty-nine Senators have co-sponsored the Resolution; all of them are Democrats. But with a majority Republican Senate, the Resolution is going to need support from both sides of the aisle in order to pass.
That consensus may be difficult to achieve. Supporters of Pres. Trump’s decision to hand his empire over to his kids’, rather than to a manager of a blind trust, claim that the President doesn’t necessarily need a blind trust, or blind trust equivalent, in order to be free of corruption. David B. Rivkin Jr. and Lee A. Casey, who are former members of the Justice Department, argued in the Washington Post that:
“[…] presidents who have chosen to use this device [Blind Trusts] held very different assets than Trump’s. […] Trump would not merely have to liquidate a securities portfolio and permit an independent trustee to manage those assets. He would have to sell off business holdings that he has built and managed most of his life, and with which he is personally identified in a way that few other business magnates are.”
But opponents of President Trump’s potentially conflicted business dealings, could make the case that many Presidents have had complex financial arrangements and have been high-net-worth individuals — see Presidents Roosevelt, and even both Presidents Bush — but that the Constitution is not supposed to make exceptions based on personal circumstances — in this case, just because an executive has a complex business portfolio on which he has worked hard and with which he is ‘personally identified.’
Whatever the outcome of the Resolution, the fact that Senator Cardin introduced this newsworthy Resolution, and that 29 colleagues have supported it already, is likely to (and was doubtless meant to) shine a more public light on this important part of the Constitution and on the risks that Sen. Cardin feels that the nation runs, when foreign powers can bribe US elected officials via business interests and shared profit arrangements.
What do you think? Do you agree that the Emoluments Clause is clear, and that no matter how wealthy a President is, he or she has to obey the Constitution and not accept bribes, deals or money from foreign powers, or foreign companies? Or do you think President Trump has already done enough by allowing his children to manage his assets during his term?
Have your say!
Cast your vote in the BillCam above, and reach out to your own Senators to let them know whether or not you think that President Donald Trump’s business holdings are or are not illegal, and if he should or should not put his assets into a blind trust.