Will Trump’s Ethics Plan Satisfy the Constitution?

By Tony Mauro

President-elect Donald Trump’s multifaceted plan to deal with potential conflicts of interest while in office, announced Wednesday, will not end the discussion of what he must do under the U.S. Constitution to avoid ethics problems.

Trump and Morgan, Lewis & Bockius partner Sheri Dillon, who developed the plan, stated at the Trump Tower press conference that federal statutes governing ethics explicitly exclude presidents, allowing for more creativity in dealing with ethical concerns about the billionaire president-elect.

Dillon said Trump’s plan to convey assets to a trust—not a blind trust—as well as cancelling all foreign deals and other measures go well beyond what he was required to do by any statute.

But when it comes to emoluments—a word that has been embedded in the U.S. Constitution since the founding, but only recently has made the headlines—critics say the rules of Trump’s announced plan falls short.

One emoluments clause, aimed at preventing foreign influence, says federal employees may not receive benefits from foreign sources without approval of Congress. Another clause specifically prohibits presidents from receiving emoluments beyond their salary from federal or state entities.

Dillon said that the foreign emoluments clause in Article 1 Section 9 of the Constitution did not mean that “fair value exchanges,” such as payment of a hotel bill in one of Trump’s overseas hotels, were prohibited. “Paying for a hotel room is not a gift,” she said. But to resolve any questions, Dillon said Trump would “voluntarily donate” profits from foreign assets to the U.S. Department of the Treasury.

But that does not solve the emoluments problem, said Harvard Law School professor Laurence Tribe. “Trump’s workaround is a totally fraudulent runaround,” said Harvard Law School professor Laurence Tribe, adding that Dillon “would flunk constitutional law at any halfway decent law school.”

(Dillon, a 1999 cum laude graduate of Georgetown University Law Center, did not respond to a request for comment.)

Tribe co-authored a Brookings Institution analysis of the emoluments clause in December that gave a broad definition of “emolument” to include not only improper gifts, but any economic benefit.

“The best reading of the clause covers even ordinary, fair market value transactions that result in any economic profit or benefit to the federal officeholder,” the report stated. “To start, the text supports this conclusion; since emoluments are properly defined as including “profit” from any employment, as well as “salary,” it is clear that even remuneration fairly earned in commerce can qualify.”

The report mentions a 1986 analysis from the Justice Department’s Office of Legal Counsel in response to questions raised about a
National Aeronautics and Space Administration scientist’s consulting contract with a foreign university. “The answer to the emoluments clause question . . . must depend [on] whether the consultancy would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the framers in enacting the constitutional prohibition.” Samuel Alito Jr., then deputy assistant attorney general, wrote the analysis.

Elizabeth Wydra, president of the liberal Constitutional Accountability Center, agreed that the emoluments fix is insufficient. Though ethics laws steer clear of regulating presidents, Wydra said, “The Constitution clearly applies to him.”

And as the Alito analysis suggests, Wydra said donating all Trump Organization profits to the United States would not cure the constitutional concern about foreign influence. Trump could still become aware of foreign individuals and businesses seeking to curry favor with him, even if benefits they give go to the Treasury.

And no matter where the money goes, the Constitution still demands congressional consent for receiving any emoluments, Wydra said. She added that the framers of the Constitution “wanted presidents to get their compensation from their salary as presidents, so they would not be tempted to engage in self-dealing.”

A further problem, critics said Wednesday, is that there will be no public accounting of the money that flows into the emoluments clause workaround. Common Cause vice president Paul S. Ryan said in a statement, “Transparency is America’s only hope for protecting itself against conflicts of interest and emoluments clause violations—and holding President-elect Trump accountable for his promises to avoid conflicts and violations of the Constitution.”

Sullivan & Cromwell of counsel Edwin Williamson, who wrote a recent Wall Street Journal column on whether Trump’s holdings were cause for concern, defended the plan announced Wednesday. “The Morgan Lewis interpretation is correct,” Williamson said. “Trump is going further than emoluments clause would require, in order to avoid a problem the media has drummed up—that foreign officials would try to curry favor by staying at the Trump Hotel.  He has taken all profit out of such attempts.”