There is no question that Donald Trump will assume the presidency in a tangle of business relationships and conflicts of interest. Many stem from his appointment power and its intersection with his personal financial interests. Trump is on the hook for hundreds of millions of dollars in loans but will have a chance to influence interest-rate policy through his selection of the Treasury secretary. He’s under audit from the Internal Revenue Service but will have a chance to influence the bureau by picking its new chief. And so on, and so on.
But these are almost minor compared with one particular conflict of interest that has constitutional consequences. Because of his ownership of the Trump Organization, the president-elect stands to reap a steady stream of benefits from foreign governments, a violation of the Emoluments Clause of the Constitution, which forbids the president from accepting gifts or payments from foreign leaders. Or, as legal scholars Norman Eisen, Richard Painter, and Laurence Tribe wrote in a December report for the Brookings Institute:
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 office space in his buildings; whenever projects are jump-started 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.
The only way for Trump to avoid this is divestment from the Trump Organization and liquidation of its assets, which can then be placed under a “blind” trust managed independently of the Trump family.
On Wednesday, Trump held his first news conference since November, and after fielding questions on new allegations regarding his relationship to the Russian government, he addressed concerns over these conflicts of interest. Trump insisted that, as incoming president, he’s not subject to conflict-of-interest laws. “I have a no-conflict situation because I’m president,” he said. Despite this, he said he would step away from the leadership and management of his businesses, leaving operations to his sons, Donald Trump Jr. and Eric Trump.
Trump then turned the podium over to his lawyer, Sheri Dillon, who detailed the president-elect’s plan for avoiding any conflicts of interest. Except it wasn’t actually a plan: It was an evasion. On Jan. 20, when he becomes the 45th president of the United States, Donald Trump will still be entangled in this web of business and financial relationships. He’ll still be open to influence from foreign entities. He’ll still be a vector of unprecedented corruption in the White House. If you thought Trump would switch gears and adopt a previously unseen integrity, you thought wrong. We’re all about to get scammed.
First, the details. As Trump explained, he will retain full ownership of the Trump Organization. His sons will take over the logistics of the business. “They are going to be running it in a very professional manner. They are not going to discuss it with me,” said the president-elect. His lawyer, Dillon, described this as a “blind” trust, but the fact of Trump’s continued ownership belies that description. There’s nothing blind about it. Indeed, there’s nothing to verify Trump’s claim that he will abstain from speaking with his sons about the business. And there’s still the fact that Trump retains knowledge of his assets and can still use this to personally benefit from White House actions.
It’s clear Trump’s team anticipated this objection since, as Dillon explained during her statement, the Trump Organization will not pursue new foreign “deals” during the time of Trump’s presidency. “New domestic deals will be allowed, but they will go through a vigorous vetting process,” she said. Indeed, the organization will employ an ethics adviser meant to “approve” said deals. “[N]ew deals must be vetted with the ethics adviser, whose role will be to analyze any potential transactions for conflicts and ethics issues,” Dillon said.
There’s another obvious problem: The unnamed adviser isn’t independent. He or she will lack oversight. He or she has no incentive to take a critical eye toward the Trump Organization’s future business dealings. And this assumes there will be an adviser, period; there’s a good chance, given past behavior, that Trump will not deliver on this promise.
Lastly, to deal with the problem of the Emoluments Clause—the restriction on the president receiving payments from a foreign government—Trump will direct “profits” from his hotels and other businesses to the Treasury, although Dillon insists that Trump is not in violation of the provision. “Some people want to define emoluments to cover routine business transactions, like paying for hotel rooms,” Dillon said. “They suggest that the Constitution prohibits the businesses from even arm’s-length transactions that the president-elect has absolutely nothing to do with and isn’t even aware of. These people are wrong.”
Again, the verdict from legal scholars is that these are emoluments. “Finally, while there is not yet a firm consensus on this point, the best reading of the Clause covers even ordinary, fair market value transactions that result in any economic profit or benefit to the federal officeholder,” noted Eisen, Painter, and Tribe.
Given that these hotels are businesses with costs of upkeep and labor, Trump will likely keep most payments, with some small fraction going to the Treasury. America can rejoice knowing it has a few extra cents in its pocket, impending tax cuts for the wealthy notwithstanding. Of course, this doesn’t resolve the issue. Foreign governments can still directly influence Trump through business dealings or use of his properties, and Trump—of course—can still profit.
Wednesday’s press conference was scheduled and billed as an occasion for tackling Trump’s conflicts of interest. But the reality is just the opposite: In addition to directly criticizing a press outlet (itself, a troubling and unprecedented move) and refusing to engage questions on Russian hacking, he all but told the public his plan to profit as president—and potentially from the presidency itself. Or, as he said in his concluding statement, pointing to a set of folders placed next to his lectern: “[T]hese papers are all just a piece of the many, many companies that are being put into trust to be run by my two sons that I hope at the end of eight years, I’ll come back and say, ‘Oh, you did a good job.’ Otherwise, if they do a bad job, I’ll say, ‘You’re fired.’ ”
From the props to the paid audience of cheering staffers to the walk-on expert, the “news conference” was practically an infomercial. Trump wasn’t informing the public; he was bragging. I’m about to make money off the presidency, and you can, too!