With leading ethics experts of both major parties agreeing that Donald Trump’s plan to retain ownership of this business empire while serving as president will violate the U.S. Constitution, Congress must decide if his proposal to minimize his personal profit from foreign governments is sufficient. While many would disagree with a congressional move to sanction Trump’s arrangement, myself included, it would at least preserve compliance with our Constitution.
On Jan. 12, Trump announced that he would hand over control, but not ownership, of his business to his adult sons. He further agreed to donate the profits he earns from foreign government payments to his hotels.
Trump says he won’t start any new foreign deals, but this doesn’t address existing deals and their renewals. Trump’s lawyer also argues that profits from market rate transactions aren’t as an “emolument” under the Constitution, despite significant evidence to the contrary.
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Trevor Potter, ethics advisor to Sen. John McCain, says Trump’s approach will raise “unprecedented questions of whether a foreign government or government-controlled commercial entity is simply transacting ordinary arms-length business transactions with the Trump organization, or whether instead they are attempting to curry favor with the president or enrich him.”
Richard Painter, the chief ethics lawyer for President George W. Bush, says that most of the payments that Trump’s businesses receive from foreign governments will violate the foreign bribery clause of the Constitution.
The foreign bribery clause says that no person holding any office under the United States “shall, without the consent of Congress, accept any present, emolument, office, or title of any kind whatever, from any kings, prince or foreign state.”
Given Trump’s refusal to disclose all his income from foreign governments by releasing his income tax returns, it is impossible to know if hotel profits are the only piece of his vast empire to run afoul of the Constitutional prohibition against foreign gifts or payments. It is also unclear how profits will be calculated, and disclosed, from his hotels.
Benjamin Franklin took concerns over foreign gifts so seriously that he asked for, and received, congressional approval before accepting a snuff box as a present from French King Louis XVI. Given recent revelations about Russian influence in U.S. politics, the concern of foreign influence is still relevant today.
The only way to resolve the many ambiguities and controversies of Trump’s proposal is for Congress to hold a vote on whether to approve it. Each member of Congress would then need to justify their vote to their constituents. If Congress agrees with Trump, he would clearly then be acting constitutionally, although voters and elected officials may continue to question whether his actions are ethical and in the public interest.
If Congress rejects Trump’s plan, he would then clearly be acting beyond the bounds of the Constitution. The country would then need to grapple with how to deal with a leader who is acting above the law.
What Congress must not do is simply look the other way. Allowing a president who has demonstrated authoritarian tendencies to openly flaunt the Constitution on his first day of office is a road that we dare not travel down.
Sacramento Reps. Doris Matsui and Ami Bera should immediately introduce a motion or legislation offering congressional approval of Trump’s plan, with whatever implementation details and disclosure requirements they see fit. They should then force a vote using every procedural tool available under the House rules, including amendments, discharge petitions and public pressure.
The chips will then fall as they may.
Derek Cressman is a good government watchdog and author of two books about money in politics. He can be reached at DC@derekcressman.com.