Rule of Law

OP-ED: Trump on collision course with Constitution over business holdings

For weeks, President-elect Donald Trump has been assuring the American people that it would be easy for him to resolve the constitutional and conflict-of-interest problems posed by his vast business holdings.

But, at his press conference Wednesday, he revealed just how wrong those promises were. Simple or not, Trump’s long-awaited plan does nothing to address the imminent collision between his presidency and the Constitution.

Our nation’s founding charter, the Constitution, includes two separate provisions that share a common aim — ensuring the president is working for the national interest and not personal gain.

This is no coincidence. The Framers of the Constitution were deeply concerned about corruption and included these prohibitions to ensure that the president would not have divided loyalties, or be unduly influenced by the prospect of personal gain.

To that end, the Constitution’s Foreign Emoluments Clause provides that “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 Domestic Emoluments Clause applies only to the president and provides that he “shall, at stated Times, receive for his Services, a Compensation . . . and he shall not receive within that Period any other Emolument from the United States, or any of them.”

In other words, and whether Trump’s lawyers are willing to recognize it or not, the president may not receive any “emolument” other than his salary — that is, any compensation, gift, or other form of profit or gain — from foreign governments, the United States, or state governments and their instrumentalities.

Given Trump’s vast business holdings around the country and the world, his presidency has long appeared to be on a collision course with those constitutional provisions, which is why bipartisan ethics experts have been urging him to do what past presidents have done — divest his assets and set up a blind trust.

The Office of Government Ethics has urged the same course of action.

Yet at Trump’s press conference, his lawyer insisted that “[t]he Constitution does not require President-elect Trump to do anything here.”

His willingness to do anything was, she said, a matter of grace.

“He wants to do more than what the Constitution requires,” she said.

According to Trump and his counsel, the solution is simple: “[Trump] is going to voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury. This way, it is the American people who will profit.”

Trump’s lawyer is wrong and this proposed solution is anything but a solution, as numerous ethics experts, including the Office of Government Ethics, pointed out after the press conference.

After all, this proposed plan leaves numerous questions unanswered.

Perhaps most significantly, Trump and his lawyer did not explain how this plan would address the Domestic Emoluments Clause, even though that clause specifically applies to the president.

No plan to address violations of the Emoluments Clauses can be complete if it fails to address one of those clauses entirely.

As to the Foreign Emoluments Clause, Trump’s plan is not remotely sufficient either.

Even assuming that the president’s subsequent “donation” of an emolument would resolve the constitutional problem posed by his “accept[ing]” it (a proposition there’s reason to question), Trump hasn’t explained why he’s only donating profits from foreign government payments to his hotels, rather than the benefits received from all of his foreign business dealings.

He hasn’t explained how the American people and Congress can be confident that he’s complying with this promise, given his continuing unwillingness to be transparent about his business holdings, as he once again refused to release his tax returns.

He hasn’t explained why he isn’t giving Congress the opportunity to bless this arrangement, as the Constitution explicitly contemplates.  Those are just a few of the serious questions Trump’s plan leaves unanswered.

In short, Trump’s plan doesn’t solve the significant constitutional problems created by his vast business holdings, failing even to acknowledge the significant Domestic Emoluments Clause challenges those holdings pose.

If Trump really wanted to resolve these problems, it’s clear what he should do — divest and put the assets in a blind trust. Trump’s lawyer claimed that doing so “would greatly diminish the value of the assets and create a fire sale.”

The Constitution contains no “fire sale” exception, however, nor an exception for wealthy presidents with large business holdings around the world.

The Constitution’s prohibition is clear — the president may not receive any profit or gain, other than his salary, from foreign governments, unless Congress approves it.

Moreover, he may not receive any profit or gain, other than his salary, from the federal government, or any of the states or their instrumentalities.

Until President-elect Trump divests from his businesses and places the proceeds in a blind trust, he will have knowingly placed his presidency on a collision course with the Constitution.