When President Trump upon taking office refused to completely sever his ties to his international business interests, he set in motion events that would inevitably lead to violation(s) of the foreign emoluments clause of the Constitution and gross conflicts of interest. Two examples, which might not have gotten sufficient notice given the gobsmacking raid on Trump’s lawyer’s office and the chemical attack in Syria, recently surfaced that underscore the extent of the problem.
The New York Times reports that, during the campaign, the Trump Foundation received a $150,000 “donation” from a Ukrainian billionaire for a video appearance by Trump. Michael Cohen, unsurprisingly, “solicited the donation.” There are a host of problems here. If this is actually payment for services, it is income for Trump and should have been reported as such. If diverting the money to the foundation was an attempt to evade taxes or banking laws, federal laws may very well have been broken. Federal campaign finance laws may also have been violated if this was in essence a way to help Trump’s campaign. (Foreigners are prevented from donating to a campaign.)
Let’s take a step back on this. First, what in the world was candidate Trump doing getting money from a foreign government while running for president? (Cohen also worked on negotiations for a Trump Tower in Moscow while Trump was running for office.) It makes Hillary Clinton (who at least removed herself from the Clinton Foundation operation and stopped giving paid speeches once she began running) look like a Girl Scout. To make matters worse, the Ukrainian oligarch who made the substantial payment for a trivial amount of work was trying to promote ties between Ukraine and the United States. To be crass, was this a bribe?
In addition to that stunning revelation, Trump’s business cohorts have been caught using the power of the presidency to leverage business concessions from foreign governments. The Post reports:
Lawyers representing President Trump’s company last month wrote directly to the president of Panama, asking him to intervene in a legal fight over the Trump International Hotel in the capital — and warning that the case could have “repercussions” for Panama’s reputation.
The law firm, Panama-based Britton and Iglesias, wrote in Spanish to President Juan Carlos Varela on March 22 to “urgently request your influence in relation to a commercial dispute regarding the Trump hotel.”
At the time, the majority owner of the Trump hotel — Cypriot-born investor Orestes Fintiklis — had kicked out the Trump Organization as the hotel’s manager, after a ruling from a low-level Panamanian judge. The president’s company was seeking to retake control.
The request was extraordinary: The U.S. president’s company was asking the leader of a U.S. ally to intercede on its behalf, disregarding Panama’s separation of powers.
If Panama were to grant the request, that would be the quintessential sort of monetary favor the emoluments clause prohibits. (“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.”) Constitutional scholar Laurence Tribe explains:
Trump’s refusal to sever his all-entangling business ties throughout the world when he became president was and continues to be both a clear violation of the Foreign Emoluments Clause and a profound threat to our nation’s security, which depends on having a president whose only allegiance is to the United States and its people, including of course our Constitution and laws. The way lawyers from the Trump Organization and its often opaque network of nested corporations blatantly intervened in U.S.-Panama relations last month was a classic example of what we get when we elect a president with no respect for the separation of his own and his family’s economic interests from the conduct of America’s foreign policy.
Even if Trump’s business associates do not get the help they are requesting, the use of the public office of the president to threaten a foreign government (an ally no less) creates an impossible conflict of interest between national interests and Trump’s personal interests. The Trump Organization insists this is “routine.” Hardly.
“For four decades every president of both parties has taken steps to sever all their business ties to avoid precisely these kinds of entanglements—indeed, to avoid far less severe ones,” former White House ethics counsel Norman Eisen says. “Bipartisan ethics experts outside of government specifically warned of this eventuality even before he was elected, and so did Walt Shaub in his now-famous speech at Brookings when the president-elect announced that he would be retaining his businesses. The president has turned a deaf ear then and since.”
The episode raises a host of questions: Was Trump aware of the pressure tactic? Is this a single episode, or have other Trump Organization dealmakers (including Trump’s two older sons) ever invoked the president’s powers? Has Jared Kushner engaged in any similar tactics? As to the last query, four foreign governments reportedly figured they could influence Trump foreign policy by leveraging Kushner’s financial problems. Trump’s son-in-law, who never liquidated his business interests, suffers from the same conflicts of interest or at least perceived conflicts his father-in-law does.
If we had a responsible majority party in the House and/or Senate, we might find some answers about these foreign conflicts. Unfortunately, any transparency or accountability will not be forthcoming so long as Republicans are in control.
We are seeing Trump behave as a sort of third-world kleptocrat using power to feather his own nest. It’s in the mode of Russian President Vladimir Putin and other autocrats who use political power not for the benefit of their country but to enrich themselves. When foreign governments or individuals connected to foreign governments are involved, the country’s national security interests are compromised. A president cannot possibly fulfill his oath of office and act as commander in chief when foreign governments are stuffing his businesses’ and foundation’s pockets.
No wonder Trump tried to draw a red line to prevent the special counsel from nosing around in his business operation. He could be justified in fearing that Mueller would discover unprecedented conduct inconsistent with the Constitution and with the essence of democratic government.