Unprecedented

UNPRECEDENTED: PRESIDENT TRUMP’S DIVIDED LOYALTIES

By: Emily Atmore, Volume 101 Staff Member

Donald Trump’s prominence as an international businessman has raised widespread concerns about conflicts of interest in his newest venture: as President of the United States.[1] Legal experts have relied on a little known section of the Constitution, the Emoluments Clause, in calling on Trump to abide by ethical precedent in his transition from business tycoon to forty-fifth president of the United States.

The first forty-four presidents were seasoned public servants, not business moguls, prior to holding office.[2] Those who did have business investments quickly divested their interests or placed them in a blind trust.[3] Candidates for the past forty years have also released federal tax returns to give the public a thorough picture of their personal finances.[4] Though presidents are exempt from many conflict of interest laws, the majority of past Presidents voluntarily abided by them in order to dispel any doubts about potential conflicts as President.[5]

President Trump has thwarted many political traditions, including this precedent. Having never before been elected to public office, Trump spent his career in the private sector, building an extensive business empire;[6] one that he refuses to financially separate himself from.[7] He is unwilling to volunteer his tax returns, which prevents an accurate assessment of the magnitude of his potential conflicts.[8] These acts have created public skepticism about Trump’s ability to remain impartial as President and have incited a broader concern about the nation’s susceptibility to foreign corruption under Trump’s administration.[9]

Legal safeguards have long existed to protect the government from local and foreign exploitation.[10] The office of the President, as the highest office in the nation, is particularly vulnerable to these influences.[11] Yet, many of these ethical protections exempt the President and Vice President.[12]

The President is excepted from the primary statute that makes federal employees criminally liable for financial conflicts of interests.[13] The President is also exempt from gift restrictions promulgated by Office of Government Ethics.[14] The President may freely accept gifts from the general public so long as he or she does not “solicit or coerce” the receipt of such gift[15] or accept the gift in return for an official act.[16] However, the President may not accept gifts that violate the United States Constitution or that are otherwise prohibited by Congress.[17] Thus, the Emoluments Clause has become the focus of Trump conflict concerns because it is one of the few laws that may serve to limit a President’s receipt of gifts.

The language of the Emoluments Clause reads: “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.”[18] “Emolument” is defined as compensation, profits, fees, gains, or other advantages arising from possession of office or employment.[19] On its face, this clause limits public officials’ actual receipt of gifts from foreign governments, but in actuality it also extends to prohibit action that could merely create the appearance of divided loyalties.[20]

The framers intended the Emoluments Clause to protect the new nation from manipulation by foreign world powers.[21] While the world has changed significantly since 1789, two realities remain: entanglements between American officials and foreign powers still exist[22] and “an impairment of impartial judgment can [still] occur in even the most well-meaning men when their personal economic interests are affected by the business they transact on behalf of the Government.”[23] The Emoluments Clause is especially applicable to Trump’s conflicts because the Trump Organization has an extensive international presence that creates a unique opportunity for foreign actors to use financial incentives to taint Trump’s presidential activities.

The Emoluments Clause has rarely been addressed before now.[24] It has never been litigated and has been interpreted only broadly by the Attorney General and Comptroller General.[25] Congress has exercised its power to “consent” by enacting one regulation: the Foreign Gifts and Decorations Act, which authorizes employees, including the President, to receive souvenirs or courtesy gifts of minimal value from foreign officials.[26] The lack of strong precedent leaves scholars, legislators, and the public debating the ambiguities of the Emoluments Clause in the context of Trump. Many ethics lawyers are adamant that Trump is acing in direct violation of the Emoluments Clause by retaining a financial interest in the Trump Organization.[27]

Trump shared his own interpretation of the Emoluments Clause and announced a nontraditional plan to assuage public concerns over his conflicts of interest. [28] His plan includes placing management of the Trump Organization with his adult children, but holding onto the company’s profits.[29] In regards to the Emoluments Clause, Trump has vowed to donate all Trump Hotel profits from foreign governments to the United States Treasury and assures the Trump Organization will not make any new foreign deals during his administration.[30]

Despite this showing, experts believe this plan is a shallow attempt to eliminate the appearance of conflicts and ultimately remains insufficient to satisfy the Emoluments Clause.[31] Trump and his family will still financially gain from the Trump Organization.[32] Existing foreign and domestic deals will still create conflicts of interest.[33] There will always be an incentive for domestic and foreign business executives and government officials to transact favorably with the company owned by the President.[34] The donation of Trump Hotel profits to the U.S. government only resolves one of many of the President’s constitutional violations.[35] Additionally, Trump has failed to seek the “Consent of Congress.”[36]

Even if experts are correct that President Trump is violating the Emoluments Clause, remedial action would be difficult to enforce. It is unclear who would have constitutional standing to bring a lawsuit.[37] Any effective resolution would require political action by Congress. Congress could impeach Trump for his Emoluments violation as a “high crime and misdemeanor” by a majority of the House and two-thirds of the Senate.[38] Short of impeachment, the best resolution would be the passing of legislation to limit presidential conflicts of interests and foreign dealings.[39]

The election of Donald Trump as President has revealed a failing in the ethical standards required of the President of the United States. While Trump’s declaration that a President has no conflicts of interest[40] may be true statutorily, it is certainly untrue ethically.[41] Perhaps as Trump’s inadequate plan suggests, modern understanding of the Emoluments Clause is insufficient to enforce its true purpose. This makes it all the more important to impose statutory prohibitions to guarantee a limit on the President’s conflicts of interests. The President must be prepared to make sacrifices to preserve presidential integrity.[42] The most fundamental of which is in granting undivided loyalty to our Country.[43] Our laws must demand this.

Trump must be required to divest his business interests and embrace his new role as public servant.[44] As our nation’s President, he owes us his undivided loyalties.

  1. See, e.g., Richard W. Painter, Trump’s Business “Separation” Plan Does Nothing of the Kind, N.Y. Times (Jan. 12, 2017), https://www.nytimes.com/2017/01/12/opinion/trumps-business-separation-plan-does-nothing-of-the-kind.html?_r=0.
  2. Besides Trump, every single President has either been elected to public office, appointed to political office or served in the military. See Presidents’ Occupations, Infoplease, http://www.infoplease.com/ipa/A0768854.html (last visited Feb. 1, 2017).
  3. Jack Maskell, The Use of Blind Trusts by Federal Officials, Congressional Research Report, http://congressionalresearch.com/RS21656/document.php (last visited Feb. 1, 2017).
  4. Louis Jacobson, Donald Trump Says His Financial Disclosures more than Makeup for Lack of Releasing Tax Returns, Politifact (Sept. 7, 2016), http://www.politifact.com/truth-o-meter/statements/2016/sep/07/donald-trump/donald-trump-says-his-financial-disclosures-more-m.
  5. Zachary Volkert, President Jimmy Carter Gave Up His Peanut Farm and Richard Nixon Sold Most Assets to Avoid Conflicts of Interest, Inquisitr (Dec. 14, 2016), http://www.inquisitr.com/3796484/president-jimmy-carter-gave-up-his-peanut-farm-and-richard-nixon-sold-most-assets-to-avoid-conflicts-of-interest.
  6. The Trump Organization is worth $10 billion (self-proclaimed), including 155 business interests sprawled across 25 countries. Curt Devine, Trump’s Foreign Business Interest: 144 Companies in 25 Countries, CNN (Nov. 29, 2016), http://www.cnn.com/2016/11/28/politics/trump-foreign-businesses. For a detailed disclosure of his businesses, see Donald J. Trump, Executive Branch Personnel Public Financial Disclosure Report (July 22, 2015), http://online.wsj.com/public/resources/documents/TrumpFinancialDisclosure20150722.pdf.
  7. Emily J. Fox, Donald Trump’s Plan to Keep His Business Is a National Embarrassment, Vanity Fair (Jan. 11, 2017), http://www.vanityfair.com/news/2017/01/donald-trumps-plan-to-keep-his-businesses-is-a-national-embarrassment?mbid=social_facebook.
  8. Emily Cadei, Trump May Not File His Financial Disclosure in 2017, Trust Advisor (Dec. 28, 2016), http://thetrustadvisor.com/trump/trump-silent-filing-personal-financial-disclosure-2017.
  9. Painter, supra note 1.
  10. Maskell, supra note 3.
  11. Norman L. Eisen et al., The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump, Brookings Inst., at 10 (Dec. 16, 2016) (“If there is any federal officeholder that a foreign power might seek to influence—and the corruption of whom would imperil the Republic—surely it is the President.”).
  12. Julie Bykowicz, Why Conflicts of Interest Rules Apply Differently to the President, PBS NewsHour: The Rundown (Nov. 30, 2016), http://www.pbs.org/newshour/rundown/conflict-interest-rules-apply-differently-president.
  13. 18 U.S.C. § 208 (2012); 18 U.S.C. § 202(c) (2012) (exempting President and Vice President from 18 U.S.C. § 208).
  14. 5 C.F.R. § 2635.204(j) (2015).
  15. 5 C.F.R. § 2635.202(c)(2) (2015).
  16. 5 C.F.R. § 2635.202(c)(1) (2015).
  17. 5 C.F.R. § 2635.204(j) (2015); see 18 U.S.C. § 201 (2012) (criminalizing bribery of public officials).
  18. U.S. Const. art. I, § 9, cl. 8.
  19. Foreign Emoluments Clause, Black’s Law Dictionary (10th ed. 2014).
  20. Randall Eliason, Emoluments Clause, Bribery and President Trump, Sidebars (Nov. 29, 2016), https://rdeliason.com/2016/11/29/the-emoluments-clause-bribery-and-president-trump.
  21. Eisen et al., supra note 11, at 2 (“Foreign interference in the American political system was among the gravest dangers feared by the Founders of our nation and the Framers of our Constitution.”).
  22. Id.
  23. Maskell, supra note 3.
  24. John F. O’Connor, The Emoluments Clause: An Anti-Federalist Intruder in a Federalist Constitution, 24 Hofstra L. Rev. 89 (1995).
  25. Richard Tofel, Why Trump Would Almost Certainly Be Violating the Constitution if He Continues to Own His Businesses, ProPublica (Dec. 2, 2016), https://www.propublica.org/article/trump-would-be-violating-constitution-if-he-continues-to-own-his-businesses.
  26. 5 U.S.C. § 7342 (2012) (Foreign Gifts and Decorations Act).
  27. Painter, supra note 1.
  28. See Donald Trump’s News Conference: Full Transcript and Video, N.Y. Times (Jan. 11, 2017) [hereinafter Trump’s News Conference], https://www.nytimes.com/2017/01/11/us/politics/trump-press-conference-transcript.html?_r=0.
  29. See id.
  30. See id.
  31. Painter, supra note 1; Remarks of Office of Government Ethics Director Walter M. Shaub, Jr., N.Y. Times, at 1 (Jan. 11, 2017) [hereinafter Remarks of OGE], https://www.nytimes.com/interactive/2017/01/11/us/politics/trump-conflicts-of-interest.html?_r=0 (“Stepping back from running his business is meaningless from a conflict of interest perspective.”).
  32. Fox, supra note 7.
  33. Id.
  34. Id.
  35. For a discussion of his remaining conflicts, see Painter, supra note 1.
  36. Complaint at 11, Citizens for Responsibility and Ethics in Washington v. Trump, No. 00458 (S.D.N.Y. Jan. 23, 2017), 2017 WL 277603.
  37. Eliason, supra note 19. Two former White House ethics advisors, Richard Painter and Norm Eisen, along with a group of other lawyers, filed a formal lawsuit against President Trump on January 23, 2016, alleging violations of the Emoluments Clause. They argue they do have standing based on Supreme Court precedent. For more discussion, see Steve Inskeep & Rachel Martin, Lawsuit Claims Foreign Payments to Trump’s Businesses Violate Constitution, Nat’l Pub. Radio (Jan. 24, 2017), http://www.npr.org/2017/01/24/511355794/lawsuit-claims-foreign-payments-to-trump-s-businesses-violate-the-constitution.
  38. Eliason, supra note 19.
  39. Such legislation has already been introduced. See Paul Blumenthal, Elizabeth Warren Introduces Bill to Resolve Trump’s Conflicts of Interest, Huffington Post (Jan. 9, 2017), http://www.huffingtonpost.com/entry/elizabeth-warren-trump-conflicts_us_58728387e4b099cdb0fd8845.
  40. Trump’s News Conference, supra note 28.
  41. Remarks of OGE, supra note 31, at 3 (“Common sense dictates that a President can, of course, have very real conflicts of interest. A conflict of interest is anything that creates an incentive to put your own interests before the interests of the people you serve.”).
  42. Christopher Dean Hopkins, U.S. Ethics Official: Trump’s Divestiture Is Hard, Pricey and Essential, Nat’l Pub. Radio (Jan. 12, 2017), http://www.npr.org/sections/thetwo-way/2017/01/12/509421108/u-s-ethics-official-trumps-divestiture-is-hard-pricy-and-essential.
  43. Maskell, supra note 3 (“A public servant owes undivided loyalty to the Government.”).
  44. Remarks of OGE, supra note 31, at 4.
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