President-elect Donald Trump’s showy press conference on Wednesday did not put concerns about his conflicts of ethics and potential violations of the emoluments clause to rest. Far from it. Informed observers could quickly ascertain that this was a hoax, not a good-faith attempt to resolve serious ethical problems.
On Wednesday afternoon, Walter M. Shaub Jr., director of the Office of Government Ethics, made clear that Trump had failed to even come close to removing ethical violations that will go to the heart of his ability to govern. Shaub has taken heat for tweets trying to cajole Trump into taking appropriate steps to rectify his ethical problems. But Shaub’s tweets and his willingness to step forward to deliver a tutorial on ethics for the benefit of Trump and the country were gutsy acts of a public servant who sees a gross departure from bipartisan precedent on ethics; perhaps he will goad members of Congress into performing their constitutional obligations.
Shaub cited Trump’s own secretary of state nominee, Rex W. Tillerson, to highlight Trump’s ethical shortcomings. “Mr. Tillerson is making a clean break from Exxon. He’s also forfeiting bonus payments worth millions,” Shaub said. “As a result of OGE’s work, he’s now free of financial conflicts of interest. His ethics agreement serves as a sterling model for what we’d like to see with other nominees. He clearly recognizes that public service sometimes comes at a cost. The greater the authority entrusted in a government official, the greater the potential for conflicts of interest. That’s why the cost is often greater the higher up you go.”
Trump, however, has done nothing approaching this, Shaub pointed out. He dismantled the facade of a “blind trust”:
Stepping back from running his business is meaningless from a conflict of interest perspective. The Presidency is a full-time job and he would’ve had to step back anyway. The idea of setting up a trust to hold his operating businesses adds nothing to the equation. This is not a blind trust — it’s not even close. I think Politico called this a “half-blind” trust, but it’s not even halfway blind. The only thing this has in common with a blind trust is the label “trust.” His sons are still running the businesses, and, of course, he knows what he owns. His own attorney said today that he can’t “un-know” that he owns Trump Tower. The same is true of his other holdings. The idea of limiting direct communication about the business is wholly inadequate. That’s not how a blind trust works. There’s not supposed to be any information at all.
Shaub rapped Trump’s paid lawyer. “The president-elect’s attorney justified the decision not to use a blind trust by saying that you can’t put operating businesses in a blind trust. She’s right about that. That’s why the decision to set up this strange new kind of trust is so perplexing,” he said. “The attorney also said she feared the public might question the legitimacy of the sale price if he divested his assets. I wish she had spoken with those of us in the government who do this for a living. We would have reassured her that presidential nominees in every administration agree to sell illiquid assets all the time.”
The only solution, he said, is divestment. Citing the late justice Antonin Scalia’s opinion that a president cannot be more conflicted than his subordinates, Shaub brushed aside Trump’s excuses. “I appreciate that divestiture can be costly. But the president-elect would not be alone in making that sacrifice. I’ve been involved in just about every presidential nomination in the past 10 years. I also have been involved in the ethics review of presidents, vice presidents and most top White House officials. I’ve seen the sacrifices that these individuals have had to make. … He’s going to be asking his own appointees to make sacrifices. He’s going to be asking our men and women in uniform to risk their lives in conflicts around the world. So, no, I don’t think divestiture is too high a price to pay to be the president of the United States of America.”
Trump, of course, doesn’t want to make that choice; his decision to hold onto his business and risk creating a cesspool of corruption and ongoing violations of the emoluments clause reflects his refusal to defend the Constitution without reservation or self-interest. Former White House ethics counsel Norman Eisen, appearing with Shaub, expressed his “disappointment” in Trump’s refusal to sever himself from his business. Richard Painter, who served as ethics counsel in Republican administrations, pointed out that there has been a bipartisan tradition of upholding ethical norms.
Both Painter and Eisen stressed that the emoluments clause explicitly prohibits foreign governments’ money from flowing to the president. “The president is not above the law,” Painter said. Eisen predicted that Congress “won’t allow these emoluments flow.” Donating the proceeds of illegal emoluments is no solution, Eisen said. Eisen and Painter pointed out that foreign emoluments may flow from other parts of his business beyond the hotels. (These include trademarks, bank loans and other financial benefits.)
Laurence Tribe responded to the Trump news conference with a Twitter storm. “As I listened, my jaw dropped. Trump’s workaround is a totally fraudulent runaround. A Potemkin Village of a trust at best,” he began. He dismissed the notion that Trump could solve his problem by donating the money from foreign hotel guests to the U.S. Treasury. “Promising to donate profits from foreign patronage to us plebeian taxpayers is a ruse designed to feed the myth of Trump the Generous.” Among other problems, Tribe noted that “when a foreign power books a Trump property for a big public event, the value to the Trump brand globally can’t be shared with us.”
“What Donald J. Trump has done today is contrary to the most fundamental law of the United States of America, and that is our Constitution,” Eisen stated flatly. “The president-elect has nine days to fix this problem,” Painter warned. Bribery prosecutions can proceed under federal law, and Congress through its impeachment power is the ultimate enforcer of the emoluments clause.
Ironically, for someone who ran on changing the way Washington does business, Trump has distinguished himself as the sole example of a president unprepared to comply with bipartisan ethical norms and the text of the Constitution. The question for Republicans is now whether they want to collaborate in an egregious violation of the Constitution and in an arrangement that will inevitably call into question virtually every regulatory action, policy decision and personnel pick the administration makes. (Any senator with judicial aspirations should register complaints loudly and clearly; consent to an unconstitutional arrangement should be a disqualifier for any future judicial post.)
Republicans who opposed Trump predicted that he would intellectually, morally and financially corrupt his party and others around him. Nothing we have seen so far indicates that this prediction was off-base. Voters who want a check on an imperial, amoral president will need to elect Democrats to check Trump if Republicans are not up to the job.