December 15, 2016
For those worried about corruption and cronyism, Donald Trump’s coming for-profit presidency will hardly “drain the swamp.” Rather, it will create a new one, albeit with large, gold-plated all caps letters branding it a TRUMP property.
His recent late-night misdirection by tweet on a busy news day, calling off a planned press conference on potential conflicts of interest, was clever but predictable — and predictably wrong. His effort to combine public service and self-enrichment would be blatantly unethical, unprecedented and unconstitutional.
The Emoluments Clause of the U.S. Constitution is unambiguous. It makes clear that this country does not allow a foreign power to convey anything of value to an American President in a potential effort to bribe and sway him. A 1994 Justice Department opinion concludes that the original “language of the Emoluments Clause is sweeping and unqualified.”
Trump promises to avoid problems by having two of his children run his business and avoiding “new deals.” (Do leases or hotel rentals count as deals?)
This is akin to Willie Sutton asking to be let off if he pledged no new thefts. For the problem here is not merely Trump committing an overtly corrupt act. Rather, it is a conflict baked into his relationships abroad as foreign leaders may understandably assume either that favors to Trump properties that will line his pockets or threats to them — nice hotel, hope nothing happens to it — may give the officials added leverage in any dealings.
That’s why “conflicts” aren’t some abstract good-government obsession but an actual, ongoing threat to our national interest.
Of the first 29 foreign countries with whose leaders Trump spoke after being elected, he had assets in eight. During the campaign, he lauded President Recep Tayyip Erdogan’s vicious postcoup-attempt crackdown in Turkey — just a month after Erdogan had suggested taking his name off the Trump Towers in Istanbul.
Such conflicts will only proliferate once Trump is in office, especially in an administration run by wealthy economic interests; nothing says “white working class” quite like the billionaires in his cabinet. At the same time, every project that bears the Trump brand will be a terrorist target.
The President-elect has said that voters knew preelection about his holdings and conflicts, and just weren’t bothered. But of course he presumably was hiding something by refusing to release his tax returns. Nor are constitutional provisions subject to gotcha excuses or popular elections.
There’s only one sound answer: total divestment by the family, or the setting up of a true blind trust. The alternative of partial divestment with “transparency” and piecemeal decisions by White House counsel is naive, allowing thousands of winks and nods at lower levels, if not between father and children.
So, should we weep for the Trump progeny? Nope. They’d earn billions with an arm’s-length selloff by a public trustee.
Should we mourn the future of the Trump brand? Rudy Giuliani said that divestment would be unreasonable since the President-elect’s holdings are so extensive. But the Constitution doesn’t have exceptions for degree of difficulty. If anything, the bigger the conflict, the more important the Emoluments Clause.
Trump’s stance that he can merely cease his operational role but keep his investment — in his own or his children’s names — is a distinction without a difference. Greasing the palms of princelings has been a sure way to ensnare kings.
Should he continue his obvious rationalizations and stonewalling, Trump will have two gathering problems.
He would be a walking article of impeachment upon taking office. We assume the GOP-controlled 115th Congress will resist impeaching him no matter how open-and-shut the case. But as potential quid pro quo scandals accumulate, some Republicans approaching 2018 or 2020 will realize that his sleaze politically rubs off on them.
Second, private lawsuits against Trump could well succeed. Recent Supreme Court precedent holds that a sitting President can be sued. And the court’s unanimous decision in McKesson vs. Florida gives standing to sue the recipient of unlawful government favors.
Trump’s cancellation of his conflicts press conference this week is the dog that didn’t bark. But its loud message was that he’ll connive as much as conceivable to avoid yielding to pressure or laws in order to become an American oligarch merging public power and private wealth.
If he doesn’t change his mind before taking the oath Jan. 20 — which ends with him promising to “defend the Constitution of the United States,” not violate it the next moment — his will be a doomed presidency, via either Congress or court.
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