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Opinion Trump’s non-solution to his conflicts of interest and emoluments problems

President-elect Donald Trump’s strategy on addressing his conflicts of interest seemed to be to throw out as many bells and whistles as possible, sprinkle some remarks from highly compensated lawyers and hope he could muscle his way through concerns that he is setting up a scheme that will invite corruption and run afoul of the Constitution.

He is setting up a “trust” — but one not remotely blind — to hold his business assets. They will be managed by his two sons and a Trump employee, all of whom fail the fundamental test of a blind trustee — independence. Letting on that even now he was engaged in business dealings (supposedly turning down a $2 billion deal in Dubai) only underscores the ethical morass from which he refuses to extricate himself. Moreover, denying that he has dealings in Russia has been fact-checked and found wanting. He famously went to Russia for his Miss Universe pageant, and in fact bragged last May, “I had a major event in Russia two or three years ago, which was a big, big incredible event.”

The Post Fact-Checker Glenn Kessler found:

The evidence is clear, from his own words and those of his associates, that he has been eager to business in Russia. One of his sons traveled six times in 18 months trying to do deals — and said “Russians make up a pretty disproportionate cross-section of a lot of our assets.” The Trump Organization’s general counsel also confirmed that the company has looked at deals in Russia.
Without access to Trump’s tax returns — which he has refused to disclose — it may be impossible to tell whether he currently has Russian assets. But he shouldn’t be so quick to suggest he has never had an interest into doing business in Russia.

Since he refuses to release his taxes there is no way to verify his claims about Russian loans or businesses.

Trump lawyer Sherri Dillon says that those who believe that Trump's ownership of hotels constitutes a violation of the emoluments clause are 'wrong'. (Video: The Washington Post)

Neither Trump nor the lawyer he presented to reporters adequately explained why his businesses could not be spun off as part of an initial public offering. Saying such an arrangement is “complicated” and therefore out of the question is a non-answer. Indeed, this is the only way to remove Trump from ownership, which is the essence of his conflicts. His lawyer also claimed that the emoluments clause does not cover arm’s-length transactions. This is blatantly false. In a detailed legal memo prepared by Laurence Tribe, Richard Painter and Norman Eisen, they found:

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. That view is bolstered by the Clause’s reference to “offices,” which indicates that the Framers sought to prohibit even reasonable money-for-services arrangements between officeholders and foreign states, which would result in profit to the officeholder. Indeed, it would be absurd to imagine that an otherwise forbidden emolument in the form of a foreign government’s payment to the American President could be cured if the President were to give that foreign government its money’s worth (or more) in services advancing that government’s interests, which might well be contrary to our own. And it must not be forgotten that every recognized purpose of the Emoluments Clause would be fully implicated by a federal officeholder whose (entirely legitimate) business interests depend in any respect on profits earned from foreign states. Just imagine if the President, while in office, owned a company that made tens of millions of dollars, all as a result of profitable transactions with the Chinese government. Could it be said in that scenario that there is little risk of improper foreign influence? Certainly the Framers, who had seen the King co-opt Parliament through the strategic deployment of financial incentives, would have abhorred a president with loyalties divided by business dealings with foreign kings.

Moreover, in an email to me, Eisen underscored, “The Emoluments Clause doesn’t only cover some hotel revenues, as the Trump team wrongly believes, but applies to a much broader range of foreign government benefits that Trump is collecting, and will continue to collect, from foreign governments.  On January 20, that will be in direct violation of the Constitution.” Moreover, proposing to donate the monies from foreign governments spent at his hotels is ridiculous. The Constitution does not say a president can take the money and donate it — thereby getting credit with the public for being a generous guy. His lawyer was silent on any other monies he might be receiving from foreign government.

Trump’s proposed remedies are laughable. Eisen explained why Trump’s “solution” is no solution at all. “Tragically, the Trump plan to deal with his business conflicts announced today falls short in every respect,” he said. “Mr. Trump did not make a clean break with his business ownership interests as his predecessors for four decades have done; did not establish a blind trust or the equivalent as bipartisan experts and Office of Government Ethics called for; entrusted trust responsibility in his family and a current employee, rather than in an independent trustee; did not screen all ’emoluments …of any kind whatever,’ as required by the Constitution, but only some revenues, and only from his hotels; and offered an inadequate and scantily-detailed ethics wall.” He warned, “Mr. Trump’s ill-advised course will precipitate scandal and corruption.  I and many others will respond strongly in defense of ethics and our Constitution.”

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Tribe separately commented to me, “The steps he is taking constitute at best a Potemkin trust, to coin a phrase. He remains a walking, tweeting violation of the Emoluments Clause from the moment he takes office.”

Citizens for Responsibility and Ethics in Washington (CREW) Executive Director Noah Bookbinder released the following statement, echoing those concerns, including this:

The only way for Donald Trump to avoid massive conflicts of interest is to sell his business outside the family and place the assets in a true blind trust, where he will not have any way of knowing or influencing how the assets are allocated. By refusing to divest, Trump is breaking decades of precedent, just as he did with his refusal to release his tax returns. He has failed to live up to the ethical standard of past presidents including Ronald Reagan, George W. Bush, and all others of the past 40 years.
He will continue to own his business, which will continue to have foreign interests. It is absurd to believe he will have no knowledge of his business, when he will continue to own it, and it will be run by his children. He claims that he will only know what he reads in newspapers, but newspapers report which foreign dignitaries are staying at his hotel. His businesses all have his name on them in giant gold letters. He will know what they are and what legislation, regulations, or actions will benefit or hurt them.

The question remains whether Republicans, in the face of overwhelming public concern about Trump’s honesty, his businesses and his refusal to release his taxes, will buy this. If they do, the resulting minefield of potential corruption is likely to blow up the Trump presidency and their own political fortunes.

President-elect Donald Trump ended his first news conference since the election by telling his sons he'll "fire" them if they don't do a good job running his company. Trump made the catchphrase "you're fired" popular during his time hosting "The Apprentice." (Video: The Washington Post)