Thursday, January 19, 2017

Trump's ethical train wreck - Emoluments: Trump's Coming Ethics Trouble

The president-elect’s lawyers have explained why they don’t think he’ll violate the Constitution’s foreign emoluments clause—but their arguments fall apart under closer scrutiny.

Last week, President-elect Donald Trump’s lawyers issued a brief, largely unnoticed memo defending Trump’s plan to “separate” himself from his businesses. We believe that memo arbitrarily limits itself to a small portion of the conflicts it purports to address, and even there, presents claims that depart from precedent and common sense. Trump can convince a lot of people of a lot of things—but neither he nor his lawyers can explain away the ethics train wreck that will soon crash into the Oval Office.

It’s been widely acknowledged that, when Trump swears the Oath of Office, he will stand in violation of the Constitution’s foreign-emoluments clause. The emoluments clause forbids any “Person holding any Office of Profit or Trust under [the United States]” from accepting any “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (unless Congress explicitly consents).

By “emolument,” this provision means any benefit derived from dealing with a foreign government. It is well-settled that receipt of such emoluments is strictly prohibited for persons holding positions of trust with the U.S. government. A U.S. official need not also have an “office” with a foreign government in order to receive an emolument from it.

The Framers included this provision in the Constitution to guarantee that private entanglements with foreign states would not blur the loyalties of federal officials, above all the president. Yet that lesson seems lost on Trump, whose continued significant ownership stake in the Trump Organization forges an unbreakable bond between Trump and a global empire that will benefit or suffer in innumerable ways from its dealings with foreign governments. Trump’s actions in office will thus be haunted by the specter (and perhaps reality) of divided interests.

As we have argued, the only adequate solution to this and other conflicts of interest, taken by presidents of both parties for the past four decades, is divestiture into a truly blind trust or the equivalent.

At last week’s unusual press conference, Trump—lawyer in tow—refused to take those steps. Instead, after marveling at his own generosity, Trump finally explained his big plan: keep an ownership stake in the Trump Organization, but resign from management and have his adult sons (joined by an executive) run the business during his presidency.

Trump’s lawyer then elaborated: The Trump Organization will make no new foreign deals while Trump is president; all new domestic deals will be subject to internal ethics review; Trump will not receive regular updates about the business; and the profits that Trump hotels make from foreign governments will ultimately be donated to the U.S. Treasury.

Several hours later, the law firm Morgan Lewis issued a memo entitled “Conflicts of Interest and the President.” In three short pages, this memo outlined why Trump’s plan purportedly complies with the Foreign Emoluments Clause.

First, it’s worth noting a critical concession in the memo. While somecommentators have taken the extreme view that the emoluments clause doesn’t apply to the president—a claim that doesn’t withstand scrutiny—Trump’s lawyers did not rely on that position. In fact, they squarely rejected it, stating that the president’s “obligations under the Constitution” include “the obligations created by the … Foreign Emoluments Clause.”

From this promising start, however, the memo goes badly awry. It bases its defense of Trump exclusively on the proposition that the president may engage in arms-length, fair-market-value exchanges with foreign powers—on the theory that the phrase “emolument” covers only “payment or other benefit received as a consequence of discharging the duties of an office.”

There are two specific problems with this defense: First, it utterly fails to account for the many other ways in which Trump will still violate the foreign emoluments clause; and second, it is wrong on its merits.

The first problem alone is fatal. Trump has promised not to enter any new foreign deals, and, at the end of each year, to return “profits” from “hotels and similar businesses” to the U.S. Treasury. But this arrangement leaves open a vast universe of ways in which Trump will, by virtue of his continuing ownership interest, foreseeably benefit (or suffer) personally from how foreign nations interact with the Trump Organization. This is the core evil that the foreign emoluments cause sought to address. [...]

In sum, the Morgan Lewis memo—by focusing on hotels and “similar businesses,” and defending only fair-market-value transactions—simply misses a huge part of Trump’s constitutional violation.

But even with respect to this limited set of transactions, the Morgan Lewis memo is lacking.

The fundamental problem is that it loses sight of the purpose of the foreign emoluments clause. As then-Assistant Attorney General Samuel A. Alito, Jr. emphasized in 1986, the “answer to [an] Emoluments Clause question must depend [on] whether the [arrangement] would raise the kind of concern (viz., the potential for ‘corruption and foreign influence’) that motivated the Framers in enacting the constitutional prohibition.”

Given the undisputed purpose and sweeping text of the clause, it makes no sense under any approach to constitutional interpretation to say that an otherwise forbidden foreign payment to the president is allowed, but only if the president is not engaged in the specific duties of his office when he gives that foreign government its money’s worth in services. Imagine if the president owned a company that made billions of dollars annually, all as a result of profitable, fair-market-value transactions with Russia and China. Is it really conceivable that such an arrangement would be constitutional, given the basic purpose of the foreign emoluments clause?

For this reason, the Department of Justice’s Office of Legal Counsel has, in its well-reasoned opinions, prohibited federal government employees from accepting any sort of payment—fair market value or otherwise—from a foreign government. Trump’s legal team doesn’t distinguish the logic of these opinions; it just asserts that they involve “different factual circumstances.” Of course, that could be said about pretty much any precedent, especially since Trump represents a sui generis conflicts maelstrom.

The underlying concern here is that it is precisely Trump’s beneficial government services that foreign powers may hope to purchase for their money whenever they patronize or advantage his businesses. That is, foreign powers (and their agents) may pay Trump, in his capacity as owner of valuable business assets around the world, so that Trump, in his capacity as president, will play in their interest and push U.S. policies in their direction. It may be impossible to prove this on a case-by-case level, given the complex and often hidden motives guiding presidential conduct, but the whole theory of the foreign emoluments clause is to guard against the very possibility of transactions raising this creeping danger.

Trump’s lawyer, Sheri Dillon, has said that “Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests.” But if that were actually true, Trump would have done more—much more—to separate himself from his global business empire. Instead, he adopted the mere shell of a plan, utterly inadequate to the demands of the Constitution.

Trump will thus place himself in clear violation of America’s basic charter from the very first instant of his presidency.


  1. The main problem with what Trump is doing is perhaps the precedent that it will set in place for future presidents who may not be as "honest/ethical" as Trump.

  2. Waiting for all those on the republican side who were in a tizzy over Clinton's conflicts-of-interest due to the Clinton Foundation to raise the alarm about this.
    Actually, I am not waiting.

  3. no the main problem is Trump's cavalier disregard for what the American Democratic system requires and doing what is in his best interests - not that of the country. That of course does set a precedent. Wasn't aware that there are two set of rules 1) for those crooks who consider themselves honest/ethical and therefore can ignore the rules and 2) those for crooks who consider themselves dishonest.

  4. Apparently you see the conflicts-of-interest of the Clinton Foundation since you brought it up.

  5. You've just described the way Clinton handled the State Department and her Foundation.

  6. Ho hum. If he sold his businesses, they would attack him because he got a great price for, say, a hotel he owns in Russia, bought at an exorbitant price by the Russian government in order, they would allege, to influence him. #nowin

  7. Nope! You totally missed the point

  8. I have never denied that there were elements of the way Hillary Clinton handled herself that caused me discomfort. I have no way of knowing if there were actual conflicts of interest there or just the appearance of them, but either way someone planning to run for president should have had more foresight. Same with the Goldman Sacks speeches. Even if there was nothing illegal, or even unethical, about get paid hundreds of thousands of dollars to give speeches to what turned out to be Trump's future cabinet, it was not a smart thing to do for someone planning to run for president, especially as a Democrat.
    That said, the allegations of pay-for-play concerning Clinton pale in comparison to what can potentially go on with Trump, and it is pathetic, though predictable, that no one on the right seems to be bothered by this.

  9. You are right about this critique of Trump. I hope his meilos will outweigh his chesronos. We'll see.

  10. If he would have sold his business before becoming president, he would not be in violation of the Constitution.

  11. Not the America I grew up in - Rabbi Shafier

  12. Thank you for posting this. This is the way a responsible rabbi speaks!

  13. pale in comparison to what can potentially go on...

    Potentially is not in the same league as to what was actually done. But we don't expect any better from "progressives".

  14. I think not. Lawyers, by profession, are able to argue cases. That's how American law works. It's up to JUDGES to decide cases. The people who wrote this case made a very cogent case for their side. But guess what? The other side also is cogent and legally sound. And there is NO way this case is going to ever end up in a court. And the Congress has no interest in investigating this issue. Ipso facto, Trump wins. Shows how he is getting off to a strong start by not cowing to the opposition.

  15. if you view this as a cogent argument and this shreds Trumps position - how can you say that Trump's position is also cogent and legally sound?!

    Shows that Trump is now cowed by arguments which successfully demolish his own - how is that a strong start?

  16. I can admire both viewpoints because both viewpoints are consistent with the law. The law is almost never cut-and-dry. I was involved in a case we fought in a Federal appellate court, which is one step below the Supreme Court. Our lawyer made such a cogent case, that he won, or SHOULD have won. Instead, the three judges who heard the case essentially re-wrote the law that was under discussion. That's right. They arrogated the legislative authority to write law. So now we lost. Our last hope was to correct things by appealing to the Supreme Court. Which we did. But the Supreme Court declined to hear our case. They didn't decline because our case lacked merit. More likely they declined because our case wasn't a perfect case illustrating the kind of illegality we we were trying to demonstrate the government was doing. But the Supreme Court didn't have to tell us the reason they declined.

    This kind of thing goes on all the time. The Constitution is not perfect. The Torah is perfect. We must follow it perfectly. But people who work in the three branches of the U.S. government know that there are going to be violations of the Constitution all the time, or nothing will ever get done. They only pounce on egregious violations. This emolument business is kids play in this context.

  17. But "potentially" is going to be "in reality" in about 11 hours. He has already stated what he plans to do to "avoid" conflicts of interest, and the White House ethics lawyers from both parties have assessed that this is insufficient. In fact, they gave him an F grade in terms of what he is doing.

  18. The people who wrote this are liberal hacks. Very intelligent ones, but partisans looking to trip Trump, not looking for the truth.

  19. How about saying something useful?

  20. Richard Painter was the chief ethics lawyer in the Bush White House. Bald-faced lies that can be disproved in two seconds are not effective (unless one is a Trump follower).


  22. And now it is an actual conflict of interest. Not only that, but Trump has not even taken the inadequate steps to divest that he claimed he took.

  23. Really? I find it totally insipid, not to mention syrapy.
    What's worse, it implies that a proper rabbinical response to political events can be as content-less as this vacuous breast-beating, flag-waving, tv-ified, tautological infomercial. I challenge you to locate a single insight in the whole spiel.

  24. Does he want an America where Leaders sexually harass women, and lie to cover it up? Where Leaders lie to defend their own egos? Where leaders show by example that it's ok to disrespect and mock others, especially the most vulnerable in society? Where leaders are ignorant of facts, and base all their judgments on fiction and "dreaming big"? Where leaders ask foreign enemy powers to help them get elected - and they oblige?

    If this is the kind of leadership that he thinks will make America great again. Then I am truly sorry for him and for America. That this is the best that he and america can hope for?

  25. I find it totally insipid

    That is your prerogative. Just be aware of that.

    not to mention syrapy

    My dictionary does not have this word.

    What's worse, it implies that a proper rabbinical response to political events can be as content-less

    Wow! Talk about projection! You are simply projecting yourself onto others. You failed to make one comment about the substance that Rabbi Safier speaks about. Even if you disagree, if you do not have the ability to quote the actual parts that you disagree with, other than your attempt to sound like an intellectual, then your all that you accuse Rabbi Safier of being.

    He spoke like a responsible rabbi. If you fail to see it, then that is your loss.

  26. Does he want an America where Leaders sexually harass women, and lie to cover it up?

    Oh, so what JFK, LBJ and Bill Clinton did was better. They all had real sexual relations with their underlings, in the White House! In any cooperation, they would be successfully sued for sexual harassment.

    You have no problem with these lowlifes because you like their policies. Face the reality, you dislike Trump's policies. Your griping about his personal flaws is a facade.

    Now, when Marilyn Monroe was murdered, was she pregnant? With whose child?

    Does Bill Clinton have a son, who looks like him? Did he have the Arkansas State Troopers deliver child support for this kid for several years? All this is irrelevant to you, as you generally liked Bill Clinton's policies.

  27. There was no "substance", just a series of observations regarding his own feelings. That's my point.

    Mis-spelled the word: It's "syrupy".

  28. By the way, re lack of substance (see my adjacent Comment), note that you failed to meet the challenge I posed you in my last Comment.

    Essentially, every sentence in Shafier's spiel boils down to the equivalent of "How inspiring!" -- which is not exactly the meatiest of thoughts. A lamdin of his stature & standing ought to know better than so readily to conflate sentiment & substance. He'd be best served steering clear of politics & ridding himself the ultracrepidarianism that's saluting us here.

  29. Congratulations, you win the award for the most distortions per square inch on the internet.

    I guess you really don't like Bill Clinton and her supporter Hillary for harassing and covering up. The other stories about Trump have been shown to be fiction as is so much of the bilge leaking forth from the Leftist sewer.

    At least Trump lies (in your opinion) to cover his ego. Obama just plain lied and lied grossly and repeatedly such as you can keep your doctor.

    The mock the others baloney is getting tiresome. Anyone with half a brain that saw other videos of Trump responding to perfectly normal people can see clearly that he did not mock the disabled guy.

    The Democrats and Hillary especially are world class leaders in basing judgments on false doctrines and dangerous philosophies that are a harm to the entire American public.

    If you want to talk about illegal interference rather than chicken little fables of foreign interference, tghe only reason that Hillary "won" the popular vote was due to the massive involvement of myriad illegal aliens that were given free reign to vote early and often. All of this was in the failed and failing state of California.

    Thanks to Hashem that he finally saved America from the pernicious influence of the Manchurian candidate Obama and all his cronies.

  30. You are making a big assumption that I liked "JFK, LBJ and Bill Clinton". I did like the former President Obama, who was accused of being a foreigner, a muslim, a leftist and social justice warrior. These are relatively petty "flaws" in contrast to abusing women and the vulnerable, and telling bold-faced lies or "alternate facts". And yes, I did prefer Mrs. Clinton, because I preferred her policies. But I did not agree with all her policies either. And believe it or not, I liked one or two of George W. Bush's policies - again he did not have those specific leadership-disqualifying Trump defects.

  31. FOL: "I guess you really don't like Bill Clinton and her supporter Hillary for harassing and covering up. "

    Me: Don't you think that there is a big difference between an orthodox Rabbi publicly and proudly supporting a President accused of sexual assault and blatant dishonesty, and a "progressive" and "liberal lefty" (as you see me) doing the same thing. It is reasonable to expect the former to be more ... well morally conservative.

    FOL:"The other stories about Trump have been shown to be fiction as is so much of the bilge leaking forth from the Leftist sewer."

    Me: So why doesn't the Trump sue the women accusing him of sexual assault? He promised to do so! In court, under oath, all the details will be laid bare:-).

    FOL: "Thanks to Hashem that he finally saved America from the pernicious influence of the Manchurian candidate Obama and all his cronies."

    Me: I agree with you thatone should always be thankful, as "all the ways of Hashem are kindness and TRUTH". But Trump, your Precedent, lacks both "kindness and TRUTH".

  32. I did like the former President Obama, who was accused of being a foreigner, a muslim, a leftist and social justice warrior. These are relatively petty "flaws" in contrast to abusing women and the vulnerable, and telling bold-faced lies or "alternate facts".

    It's that you either fail to see the difference, or that you are purposely ignoring it. The accusations against Obama are about the policies that he implemented and pursued. The accusations against Trump are personal, which have not been affecting his policies.

  33. his ability to implement his policies and his openness to reality such as the incredibly stupid wall which he is building is related to policies and his personality. His ability to make America great is seriously impacted by his damaged credibility and the his bizarre economic policies and statements regarding other countries and people.

    No it is not that Trump is a wonder worker who nebech has a few distracting personality defects. His ability to be president is seriously damaged by his insulting the Intelligence Agencies, the State Department, Mexico, China, Europe, NATO etc etc etc. Credilibity, trust, reality testing, communication, logic, consistency and a moral compass are qualities which he is sorely lacking.

  34. I disagree with your premise


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