President-elect Donald Trump's insistence on perpetuating egregious conflicts of interest and retaining ownership of businesses that receive money from foreign governments suggests that he will, on Day One in office, be in violation of the Emoluments Clause as soon as he enters office and, in the words of ethics expert Norman Eisen, be "courting disaster." A punchy, informative interview by Chuck Todd with Eisen and Richard Painter, another ethics expert, provides an easy guide to the issues.
As Eisen said, "There is no way that Donald Trump can serve as the president of the United States and hang onto this enormous web of domestic and international businesses and keep an interest in them. He's going to be conflicted, there's going to be a cloud, a question every time he makes a decision. ... He's going to stumble over the Constitution."
In a letter to Sen. Tom Carper, D-Del., the director of the Office of Government Ethics (OGE) took issue with Trump's notion of letting his kids run his businesses. "Transferring operational control of a company to one's children would not constitute the establishment of a qualified blind trust, nor would it eliminate conflicts of interest under 18 U.S.C. § 208 if applicable," the director wrote. He acknowledges that this provision does not specifically cover the president. However, he writes that "it has been the consistent policy of the executive branch that a President should conduct himself 'as if" he were bound by this financial conflict of interest law. Given the unique circumstances of the Presidency, OGE's view is that a President should comply with this law by divesting conflicting assets, establishing a qualified blind trust, or both."
Adding yet another twist, the director tells Carper that the 2012 STOCK ACT bars the president from in essence using inside information to benefit himself. ("The STOCK Act bars the President from: using nonpublic information for private profit; engaging in insider trading; participating in an initial public offering; intentionally influencing an employment decision or practice of a private entity solely on the basis of partisan political affiliation; and participating in a particular matter directly and predictably affecting the financial interests of any person with whom he has, or is negotiating for, an agreement of future employment or compensation.")
As the Huffington Post explains, "The bottom line is that if Trump were to use nonpublic information — the kind that, as president, he would likely receive every few minutes — to inform a decision he makes regarding one of his companies, he could find himself in violation of the STOCK Act, even if he wasn't trading stocks." When Trump talks to his children on a daily basis, does anyone think he won't mention matters that will be of use to them in managing the family business? Every Trump Organization action that seems to anticipate economic or political developments will be a prima facie case of presidential misconduct. The appearance that the president is feeding information to his kids will be impossible to dispel.
The action Trump is contemplating — or rather, the actions he is contemplating not undertaking to rid himself of a constitutional and ethical cloud — prompted 23 Democrats to send Trump a letter dated Dec. 13 to remind him that the OGE recommends he divest entirely of his businesses. The letter further emphasizes that the Emoluments Clause applies to him. "Whether the President of the United States make decisions about potential trade agreements or sending troops to war, the American people need to know their president is acting in their best interest." Republicans are cowering in the corner, refusing to hold Trump to the letter of the Constitution, the spirit of the law and his promises to remove corruption and self-dealing from government.
The extent of Trump's constitutional problem is only now becoming clear. Newsweek reports:
"The Trump family has an enormous financial interest in keeping [Rodrigo] Duterte happy. Trump Tower at Century City in Makati, Philippines, is on the verge of completion, with potential buyers having placed deposits on at least 94 percent of the condominiums, according to Century Properties, the Trump Organization's business partner there. During the U.S. presidential campaign, Trump's sons Donald Jr. and Eric traveled to Makati to shovel some dirt in a ceremony to celebrate the structural completion of the building; a photograph of the two men shoveling alongside top Century Properties executives was posted on the building's website. ... The man writing millions of dollars' worth of checks to the Trump family is the Duterte government's special representative to the United States. To argue that these payments will be constitutional if they are paid to the Trump children, and not to Trump personally, is absurd. This conflict demands congressional hearings, and could be an impeachable offense."
There are also conflicts brewing in Turkey: Turkish President Recep Tayyip Erdogan, who recently beat back a coup, is intent on getting the United States to turn over Fethullah Gulen, a 77-year-old Muslim cleric who lives in Pennsylvania and whom Erdogan blames for the coup. In a phone call with Erdogan, the conflicts of interest played out, as Newsweek reports:
"Trump passed on compliments to the Turkish president from a senior official with his company's business partner on the Istanbul project, whom the president-elect was reported to have called "a close friend." The official, Mehmet Ali Yalcindag, is the son-in-law of Dogan Holding owner Aydin Dogan and was instrumental in the development of the Trump complex in Turkey."
And let's not forget national security adviser Mike Flynn reportedly was hired by a firm with close ties to the Turkish government. If you are getting dizzy trying to keep track of the financial interests, you are not alone. And this will only get worse — much worse — as soon as Trump gets sworn in.
If anything is to be accomplished before Inauguration Day, it will have to be the electoral college, due to meet on Dec. 19, that acts. Reports suggest that as many as 20 Trump electors may vote for another candidate. There is no evidence yet to support such a figure, which in any event falls short of the 37 electors that would be needed to undo Trump's victory. The rationale is simple, according to the Daily Beast:
"Trump cannot keep assets that create an ongoing risk of influence peddling by foreign governments or foreign nationals. He especially should not be liable in debt to foreign banks or governments — as his companies reportedly are to Deutsche Bank for more than $300 million. We need a president who is independent of personal interests that might affect his presidential judgment — for the same reasons Trump was right early in the campaign to complain that super PACs compromised the independence of his opponents. That independence is what the Constitution seeks through the Foreign Bribery Clause [Emoluments Clause]. Trump's refusal to comply with its restrictions is plainly reason enough to reject him."
Events since the election — Ivanka Trump sitting in a meeting with the Japanese prime minister, the conversation noted above, the rental of Trump hotel banquet rooms by foreign delegations — provide a basis for the electors to take action. They have the ability to act on new information not available at the time to voters. Now, very few observers expect 37 electors to throw the election into the House. Nevertheless, a substantial number of defections would provide a high-profile rebuke to Trump, perhaps rouse Republicans in Congress from their moral slumber and reaffirm a basic principle: You cannot fulfill the oath to defend and protect the Constitution if you set out to maintain a nest of corruption and won't follow the Constitution yourself.