According to Democracy 21 President Fred Wertheimer:
The five questions posed in this op-ed provide the basis for determining whether President-elect Trump effectively addresses his conflicts of interest and Emoluments Clause problems, or whether dangerous problems lie ahead for Trump’s presidency and the country.
According to a new Quinnipiac Poll, “roughly two-thirds, 66 percent, say Trump should place all of his business holdings in a “blind trust.”
The bottom line here is clear: either Trump divests his business assets into a true blind trust, or we are headed for multiple conflicts of interest and possible corrupting practices in the Trump presidency.
The authors of the op-ed note that these questions are based upon or drawn from two bipartisan letters that the authors have helped organize, their Brookings report on constitutionally prohibited foreign government payments to Trump and their other recent writings. The two bipartisan letters were sent to President-elect Trump and signed by a number of organizations and individuals with expertise in governance.
January 10, 2017
By: Norman Eisen, Richard W. Painter & Laurence H. Tribe
Never in American history has a president-elect posed more conflict-of-interest and foreign-entanglement questions than Donald J. Trump. Trump, the owner of a large real estate and licensing business with holdings around the world, has promised that on January 11, less than two weeks before he takes office, he will announce his plan to separate himself from his businesses. After repeatedly hesitating and delaying, will he finally do the right thing? Here are five key questions we must ask to evaluate whether the plan truly mitigates the risk of corruption and scandal.
1. Does Trump make a clean break from ownership of his businesses, not just from operations?
Some have suggested that stepping away from the day-to-day management of the businesses would be a sufficient response to the many conflict issues those businesses raise. That is wrong. As long as the president-elect is financially benefiting from his enterprises, every appointment and domestic and foreign policy decision he makes will confront the question of whether he acted to benefit the nation or his own pocket. Moreover, counterparties will face irresistible temptation to benefit Trump’s enterprises so as to secure his action or win his favor. It will be only a matter of time before one of Trump’s family members, business associates or the president himself finds himself embroiled in a quid pro quo scandal, as Prime Minister Benjamin Netanyahu has recently. To minimize this risk, the president-elect must fully exit both ownership and operations of his businesses.
2. Does Trump divest into a true blind trust?
Every modern president for the past four decades, Republican or Democratic, has utilized a “blind trust,” or the equivalent. This is a mechanism that allows the president to transfer control of his assets to an independent actor (known as the trustee), who is legally obligated to protect the president’s overall financial interest while selling the specific assets in the trust and reinvesting the proceeds in new assets. The new assets remain unknown (hence, “blind”) to the president until he leaves office. This expedient is simple for the president: He just signs a piece of paper surrendering everything to someone else’s control, allowing him to focus on the hardest job in the world: the presidency. More importantly, it drastically reduces the possibility that the president will make a decision based on his own financial interests rather than the nation’s. That’s why the bipartisan group that signed two letters we helped organize in December and January strongly advocated that Trump do this, as have a broad array of conservative voices including the editorial board of the Wall Street Journal, its columnist Peggy Noonan and the editorial board of Trump’s favorite morning read, the New York Post. (Of course, there is another possibility: that sale proceeds be reinvested directly in fully disclosed uncontroversial assets such as diversified mutual funds or Treasury bills. Because such holdings are deemed conflict-free by law, Trump would be able to know where his money is; but he would still have to divest all his current business assets first.)
3. Does Trump use a truly independent trustee, not a family member?
Trump’s children have long been involved with his businesses. It has thus been suggested that instead of divesting, his adult sons will perform a management role in whole or in part, perhaps shared with an outside trustee or monitor. Watering down a trusteeship or monitorship in this way would exacerbate, not resolve, the ethical issues swirling around Trump’s presidency. The whole point of having an independent professional trustee control conflicts is that he or she can be trusted not to leak information to the president, influencing his judgment. An owner’s child is by definition not independent. Besides, what parent would be less invested in the success of his or her children’s enterprise than the parent’s own? The risk of taking this non-divestiture approach is particularly acute in Trump’s case, as he is already intimately familiar with the entire business empire, reportedly signing every check personally. Thus, there is no substitute for turning the reins over to a truly independent, professional, widely respected trustee as defined by federal law.
4. Are all Emoluments Clause issues resolved?
Through a provision called the Foreign Emoluments Clause, the Constitution puts strict limits on the president’s ability to receive cash and other benefits from foreign governments. The founders recognized the importance of assuring the American people that the president is acting only in their best interest. Part of the way they did that was by barring “presents [and] emoluments … of any kind whatever” from foreign sovereigns or their agents. That means gifts, cash and other benefits (such as building permits and trademarks), that currently flow into Trump’s businesses on an ongoing basis. For an example, one need look no further than Trump’s hotel a few blocks from the White House, which has aggressively courted foreign government business since his election. Moreover, Trump’s U.S. holdings also raise issues under another constitutional prohibition forbidding emoluments to the president from states and other domestic governmental actors. The Constitution strictly forbids all this; if Trump does not divest all his business interests, he will violate the most fundamental charter of our nation immediately after he takes the vow to uphold it on Inauguration Day.
5. Is a strong ethics wall put in place for both the administration and the business?
Even if all of the above are carried out, these measures must be complemented by a “big, beautiful wall”—an ethics wall, that is. As a necessary part of divesting, Trump must immediately put a strong plan in place to assure that information, influence and special treatment are not passing back and forth between the administration and the Trump Organization. Key to this plan will be tough, publicly disclosed rules to that effect. Moreover, those rules must be enforced by people both in the White House and in the business itself—people whose job it is to make sure the rules are observed, who have full authority to do so and who will make regular public reports on how it is all going. To be clear, an ethics wall administered by government lawyers, trustees or monitors is no substitute for making a clean break from ownership and from meeting the rest of the preceding criteria. Unless the first four points are met, this fifth one is worthless. In fact, it is less than worthless, because it gives the false impression that it is ethically sufficient in itself. As businesses are sold, pass outside the family and the Trump name is removed from them, perhaps some of these “ethics wall” restrictions can be lessened—but not until then.
As we have noted, leaders with divided interests cannot faithfully serve those who elected them. This is a lesson the framers deemed so important that they hardwired safeguards reflecting its truths into our basic charter. Trump does not stand above the laws of history and human nature, or the requirements of the Constitution. We hope he will recognize that by meeting all five of the foregoing criteria when he makes his announcement Wednesday.
These questions are based upon or drawn from two bipartisan letters that the authors have helped organize, their Brookings report on constitutionally prohibited foreign government payments to Trump and their other recent writings.