“The Emoluments Clause…constitutes a clear barrier to the intermingling of business and governmental interests that Donald J. Trump proposes to build into his conduct of the presidency…
It is plain that a President Trump would be subject to removal from office…When this guillotine might fall is a matter of political more than legal calculation…”
–Norman L Eisen, Richard Painter, and Laurence H. Tribe, Brookings Institution, December 16th, 2016
If Liberty was the Warp, then Corruption was the Weft
Is there anything more viscerally repulsive to both the American character and charter than the rule of kings and the special prerogatives of titular nobility? The singular intention of the US Constitution is to protect the inalienable individual rights of citizens (with whom sovereignty resides and from whom powers derive) from tyranny, which until the declaration of independence was everywhere seen to be the rule. The overall shape of the government itself, hammered out as a compromise between Federalists and Anti-Federalists, with its extensive system of checks and balances, was conceived to protect the majority from a tyrannical minority, and the Bill of Rights was conceived to protect the rights of minorities from the tyranny of the majority.
From all of this it should be understood that anti-corruption is deeply rooted in the republican intentions of the US Constitution. Representative democracy (republicanism) cannot function where there can be no confidence in the motives of representatives as being in the public interest. As Zephyr Teachout has written, “If liberty was the warp of the political ideology of the era, corruption was the weft.” In her 2009 article, “The Anti-Corruption Principle” Teachout walks us through the sections of each Article of the Constitution, showing how in a preponderance of cases, a concern to neutralize tendencies of corruption animated both the discussion among the framers and the outcome. This includes everything from the size of governing bodies, the manner and timing of elections, residency requirements, ineligibility clause, emoluments clause, foreign gifts, responsibility for appropriations and other separation of powers, judicial and other appointments, impeachment, etc.
Today, we find ourselves in a political culture where political corruption has been intentionally narrowed by the SCOTUS to mean at best specific acts of quid pro quo bribery. As a result, the sense of political corruption as the “self-serving use of public power for private ends” has been so lost since Citizens United such that a billionaire presidential candidate, with economic interests all over the world, could successfully argue that he was, by virtue of his great wealth, essentially impervious to corruption, because he was beyond bribery. Surely, even in an era of excessive, even hysterical concern for individual liberty, achieving limited government can’t mean the annihilation of all public goods and interests in favor a complete capture of public institutions directly by private interests. If Liberty is the warp, then corruption must be the weft.
For What the Inauguration Bells Toll
One week from now, our billionaire President-Elect will stand and recite the oath of office of the presidency of the United States of America. If nothing changes over the coming days, he will do so without having met established bipartisan standards for managing his unprecedented potential for financial conflicts of interest. As a result, he will be in direct violation of his oath of office from the moment he swears it. Here, in the final days before the oath of office, where appropriate remedies are being once again proposed, we can see the rather breathtaking drama that is now unfolding: If the new president takes an oath to uphold the constitution, one that he manifestly cannot keep, and no bipartisan articles of impeachment are drawn up, the celebratory bells will toll, as he and his cronies wish it, that he is above the law, that we are no longer a country governed by the rule of law, and as such ‘anything is now possible.’
Together, the unaccountable president and the Congress of crony capitalists (who clearly see him as their useful idiot) will have effectively established the reign of official criminality, and as such will be dipping their robes in the blood of their enemies, and there can be no turning back. The Emoluments Clause fight presently taking place in the last ten days before the inauguration is in a very real sense our democratic republic’s last stand, because the very idea of government in the public interest, as it has been understood for 240 years, is under direct attack. This state of affairs is not an accident. Authoritarian neoliberalism’s reason for being is to establish an unrestrained kleptocracy, or worse, a ‘Putin-esque mafia state.’
The ‘No Conflict of Interest Situation’
In Manhattan on January 9th, President-Elect Trump held his first press conference. There is no need to describe the generally bizarre and tense atmosphere; you were all there, so to speak, so you saw it for yourselves. One characteristic is worthy of special mention, however. As was the case throughout the campaign, it was clear that here also, after the election, where the questions were about such things as election hacking, the impact of fake news, contacts with the Russian government, and his relationship with the intelligence community, PEOTUS Trump is still clearly seen to be “talking over the heads” of the media in the room, and directing his remarks, in terms of their tone, tenor, and intended impact, toward his most ardent supporters rather than to the American people as a whole.
If the new president takes an oath to uphold the constitution, one that he manifestly cannot keep, and no bipartisan articles of impeachment are drawn up, the celebratory bells will toll, as he and his cronies wish it, that he is above the law.
This was also true of the truly bizarre discussion about financial conflict of interest and the presidency, which seesawed back and forth from domestic conflicts to international conflicts, and from ethical expectations to legal and constitutional matters without even a hint of legal construction during the long stretch that was handled by his Morgan Lewis attorney. More evidence of course, that the world is dangerously upside down (Democrats rallying around the CIA, Republicans soft on Russia, and now the GOP POTUS’s legal team arguing that the Constitution is a living document, while liberal and centrist jurists argue original intent).
So how to segue into his legal team’s prepared comments? Trump gets the ball rolling by saying something which ought to be a rather shocking admission for anyone with traditional concerns about official corruption. Matter-of-factly, he says, “Over the weekend I was offered a 2-billion-dollar deal in Dubai, with a very, very, very amazing man, a great, great developer from the middle east, Hussein Damack, a friend of mine, great guy…and I turned it down.” Then, in the next breath, he says, “I didn’t have to turn it down, because, as you know, I have a no conflict situation because I’m president, which is – I didn’t know about that until about three months ago, but it’s a nice thing to have.” From here, Trump adds that VP Pence is also in the “no conflict of interest situation” although, Trump says, “I don’t think he’ll need it, I have a feeling he’s not going to need it.” By way of explanation, he further says, “I have a no conflict of interest provision as president. It was many, many years old, this is for presidents. Because they don’t want presidents getting — I understand they don’t want presidents getting tangled up in minutia; they want a president to run the country…I could actually run my business and run the government at the same time. I don’t like the way that looks, but I would be able to do that if I wanted to.”
Think about what a stewpot of gibberish this represents. He starts by exposing what is clearly a conflicted conversation with a foreign interest from the point of view of normal anti-corruption considerations. Then he says he is not only free to have such conversations, but to act on them, because he is not bound under the laws that constrain other federal officials with respect to domestic conflicts of interest, rather than addressing the emoluments clause of the Constitution, which specifically addresses his private dealings with foreign interests. What does it mean to say that “having a no conflict situation is a nice thing to have?” Does it does it mean to say that you don’t have to be concerned about real or perceived ethics violations because you are not subject to prosecution? What does it mean to say that Pence also has it, but that he doesn’t think that he will need it? Need it for what? Why is immunity from prosecution being spoken about as if it were some sort of explicit “get out of jail free” card? Does anyone expect the president to abide by a lower standard than that required for his appointees and other federal employees?
Morgan, Lewis & Bockius
After reverting one more time back to international conflicts, without ever having mentioned article 1 of the Constitution (“We’re in many, many countries, and I’m very proud of it.”) Trump suddenly introduces the topic of remedies for his “no conflict situation” and then invites Sheri Dillon of Morgan, Lewis and Bockius to take the stage and explain how he is turning over control of the Trump Organization to his sons. Since he is offering remedies, where no remedies are needed (“Again, I don’t have to do this”) we are supposed to understand that the task of inoculating himself from potential conflicts of interest, which he must in no way undertake, is actually for our collective benefit in some way, and not in his interest, as would usually be the case (office holders generally develop approaches to managing their conflicts in order to keep themselves out of trouble).
Why is immunity from prosecution being spoken about as if it were some sort of explicit “get out of jail free card”? Does anyone expect the president to abide by a lower standard than that required for his appointees and other federal employees?
Without further ado, Dillon announces that she and her colleagues have been directed to “design a structure” that will allow the American public to rest assured that all his efforts are directed toward pursuing the people’s business and not his own. There is already a dramatic narrowing down here that is nowhere explained – it has to do with ensuring that he directs his efforts, and it has to do with isolating him from the operational management of the Trump Organization. The structure to be described, however, is supposed to be sufficient such that “there will be no doubt” and it has to be consistent also with “what is realistically possible.” The elements turn out be these: There will be a trust (not blind), and it will be run by Eric and Don and Allen Weisselberg; there will be an ethics adviser as a member of the management team going forward, whose written approval will be needed for new deals, actions, or transactions that could potentially raise concerns. The trust will hold liquid, illiquid, assets; all pending deals prior to Jan. 20th are being terminated; no new foreign deals will be made during the tenure of the presidency; Trump will have limited financial information rights (overall P&L financial info).
Never mind the fact that President Trump, as also owner of the Trump Organization, whether run by sons or not, is immediately embroiled in a host of conflict of interest issues: there are more than 10 pending cases challenging Trump labor practices pending before the national labor relations board, and Trump will fill board vacancies; IRS is auditing Trump, and he will soon pick its new chief; Trump International Hotel is leased from the GSA, and soon he will be both landlord and tenant, and in violation of the lease; Trump owes hundreds of millions of dollars to banks, but will now select the next Treasury secretary and will be in a position to influence interest rate policy.
Remarkably, after all the talk from Trump about international business dealings (We’re in many, many countries, and I’m very proud of it) it is only near the end that Dillon says, “I’m going to turn to one last topic today…called emoluments.” She says that she will describe action that the PEOTUS is going to take to “avoid even the appearance of a conflict.” Here again, language is used that suggests that we will be invoking a higher standard, one that has to do with eliminating even the appearance of foreign conflicts of interest. But once again, this turns out to be nothing but PR speak.
Rather than set the stage, by defining emoluments, talking about Article 1 section 9 in detail, going over precedents, and other most basic aspects of legal construction, Dillon says, “The so-called Emoluments Clause has never been interpreted, however, to apply to fair value exchanges that have absolutely nothing to do with the office holder.” Per Sheri Dillon of Morgan, Lewis & Bockius, the entire discussion about what it means to uphold the Constitution, Article 1, Section 9, comes down to a short discussion about how the framers, if they were here with us today, wouldn’t mean to suggest that the Trump Hotel bills of foreign interests amounted to an emolument. For this to be so, however, we need the narrowest concept of anti-corruption; one that doesn’t take into account things like the corrupting impact of influence peddling and related sycophancy.
Here again, language is used that suggests that we will be invoking a higher standard, one that has to do with eliminating even the appearance of foreign conflicts of interest. But once again, this turns out to be nothing but PR speak.
Who would want to do something, on balance, to harm or otherwise negatively affect a Trump business if you had pending dealings with the USA? What happens if you take these concerns, which Dillon wants to frame in terms of routine arms-length transactions involving domestic Trump hotel bills, and recast it to include such things as current Trump projects in Argentina, the Republic of Georgia, business interests in Taiwan, the Philippines, Turkey, and Ireland? If we are right to say that the emoluments clause is speaking about the wider sense of corruption, then surely it is concerned with how private business interests in these places will impact US policies. As for hotel bills being an emolument or not, if we consider the dimension of harm, from which standing in cases often derive, then it becomes easy to see that even here, there is a problem. Just ask the guy who owns the empty hotel down the street.
The Emoluments Clause as a ‘Categorical Prophylactic’
On December 16th, 2016, while PEOTUS Trump was busy meeting with Trump Organization business associates from India and the Philippines, telling Recep Tayyip Erdogan how much he admired his Istanbul Hotel business partner (with Ivanka on the call), and made it clear that he opposed British wind farms because of his golf courses, the Brookings Institution published a remarkable document, called “The Emoluments Clause: It’s Text, Meaning, and Application to Donald J. Trump.” While the document is remarkable because of its comprehensiveness and clarity, it is also remarkable because of its authorship. The paper is jointly authored by two Chief White House Ethics Lawyers (one Democrat, one Republican) as well as by our most distinguished scholar of Constitutional Law: Norman L. Eisen was Chief White House Ethics Lawyer from 2009-2011; Richard W. Painter was Chief White House Ethics Lawyer from 2005-2007; and Laurence H. Tribe is professor of Constitutional Law at Harvard University.
The framers intended that the rule captured in the emoluments clause should be understood to be broadly prophylactic, and meant to operate categorically, and would have authority, since violation of it was and is an impeachable offense.
In stark contrast to the whole drift of Trump’s claim that he is somehow to be held to a lower standard with respect to conflict of interest, by virtue of the fact that if he is exempt from accountability to Federal conflict of interest laws, the three experts on the Constitution and the Presidency argue instead that it would be unworkable to try to regulate the effects of presidential dealings from the standpoint of civil or criminal penalties, this is because it has been assumed, at least until now, that presidents are entitled to a presumption of good faith and public interestedness, as manifested by their clear willingness to set a higher ethical standard (by divesting and/or placing their interests in a blind trust, for example). Also, the exemption from liability and presumption of good faith has limits, as found in Federal statutes pertaining to nepotism, quid pro quo bribery, financial disclosures, acting as the agent of a foreign power, and receipt of gifts. It finds its primary limit, however, by virtue of the fact that they wrote the emoluments restrictions directly into Article 1 of the Constitution itself.
The major point here is that, having recognized that it was not practical or desirable to address broad based concerns about executive corruption through scrutiny of each and every transaction for relevance to a criminal statute, the framers intended that the rule captured in the emoluments clause should be understood to be broadly prophylactic, and meant to operate categorically, and would have authority, since violation of it was and is an impeachable offense. As Eisen et al write, “Rather than guard against such corrupting by punishing it after the fact, the framers concluded that the proper solution is to write a strict rule into the Constitution itself, thereby ensuring that shifting political imperatives and incentives never undo this vital safeguard.”
Stepping through the various issues associated with the Emoluments Clause, Eisen, Painter and Tribe show comprehensively that: the clause does in fact apply to the POTUS; that emoluments refer to many species of remuneration, including transactions in which a foreign state “offers a sweetheart deal or any other benefit consistent with a fair market exchange in an arms-length transaction, covering even ordinary fair market value transactions that result in any economic profit or benefit to the office holder;” and that “king, prince, or foreign state” includes private businesses where the foreign state has an interest. The three Constitutional Law experts’ conclusions are worth quoting in full:
“Wholly apart from any actual quid pro quo arrangements or demonstrable bribes or payoffs, the Emoluments Clause will be violated whenever a foreign diplomat stays in a Trump hotel or hosts a reception in one; whenever foreign-owned banks offer loans to Mr. Trump’s businesses or pay rent for space in his buildings; whenever projects are jumpstarted or expedited or licensed or otherwise advantaged because Mr. Trump is associated with them; whenever foreign prosecutors and regulators treat a Trump entity favorably; and whenever the Trump organization makes a profit on a business transaction with any foreign state or foreign owned entity.”
As a result, the only true solution would be divestment via an independent third party who can turn resulting assets over to a blind trust (and suffer associated tax consequences). If he enters office, they conclude, and declines to cure, then “Congress would be well within its rights to impeach him for engaging in high crimes and misdemeanors. This would not require any evidence of provable bribes or other specific malfeasance, since the whole aim and theory of the Emoluments clause is that the president, among others, is not lawfully permitted to order his private dealings with foreign powers such that they are vulnerable to systemic, invidious, undetectable corruption.”
The Ethical Stands Higher than the Juridical
As was suggested in an early section of this now longest of all IDT posts, Trump’s thinking (or strategy) evidences an inability to properly order the relationship amongst statutory, juridical (specifically Constitutional) and ethical requirements and expectations. He comes from a business culture that everywhere concerns itself only with the letter of the law, and not with the spirit of the law, with what is actionable, and what is not actionable, with what I can be made liable for and what I cannot, with ‘try and catch me, if you can’. But where the Constitution of the United States, in its specific provisions relating to the President as a unique individual, comes into play, the ethical does not stand lower than the statutory; it stands higher. It stands higher, because in this case, it was clearly the framers original intent, that it should be so. Typically, as is well known, interpreters of the Constitution fall into one of two camps: either “originalists” who are looking at the specific intent of the framers, and who tend toward emphasis on the letter of the law, and the “living document” interpreters, who tend toward the spirit rather than the letter, and seek to apply the spirit of the document to new situations in new ways. Here though, we have a startling alignment, because the original intent of the framers is that the Constitution should regulate office holders’ conduct broadly (prophylactically) and with the clear authority of a “thou shalt” (categorically) and that the admonition to do this stands above the statutory requirements that burden lesser officials. As Eisen, Painter, and Tribe write, “Applied to Mr. Trump’s diverse dealings, the text and purpose of the Emoluments Clause speak as one: this cannot be allowed.”
It is likely that Trump is developmentally incapable of understanding all of this, because he shows every sign of being a moral ignoramus. But it has also become clear that “making America great again” means intentional intermingling of government and business interests in the conduct of the presidency, thereby making the country safe for moral idiots seeking to pursue private interests in and through trampling the very idea of government in the public interest. This is how one explains the giddy delight we are witnessing at the death of our republic.
Related Links:
Brookings Institution: Remarks Of Walter M. Shaub, Jr., Director, Office of Government Ethics
Pro Publica: Why Trump Would Almost Certainly Be Violating the Constitution if He Continues to Own His Businesses. By Richard Tofel.
New York Magazine: The Case for Donald Trump’s Impeachability, by Jesse Singal
