Our politics is broken and the crack will widen
It started one-minute past Noon, January 20, 2017
As I say above, it started the minute Donald J. Trump took the oath of office. He officially started breaking the law of the very oath he had just taken. … Cite various legal expert opinions in this fine article (from Media Matters):
SETTING THE SCENE and based on this announcement from Mr. Trump himself wherein he said in part that he will retain an ownership interest in the Trump Organization even while he serves as President as his two sons run the operation.
That statement was made on January 11 during a press conference wherein he said he would “transfer control of The Trump Organization to a trust controlled by his eldest sons, Donald Jr. and Eric, and Trump Organization CFO Allen Weisselberg,” but, quickly added that he would still retain an ownership interest in the business and receive reports on its finances. Therein lies the legal problems as follows.
Trump’s attorney said the company would also appoint an in-house ethics consultant to review future actions and cancel pending foreign deals. Ethics experts later said these measures were insufficient to resolve conflict of interest concerns. [Reported on by Forbes, 1/11/17; CNN Money, 1/11/17; and the New York Times, 1/12/17]
Now legal opinions from government ethics experts:
Kathleen Clark says that under that plan, Mr. Trump “Will receive money from Foreign Governments and that is what is Prohibited.” In an interview with Media Matters, Ms. Clark, a law professor at Washington University School of Law, and legal ethics expert, raised the Emoluments Clause in criticizing Trump’s business plan with the word: “prohibited.”
Then from these three ethics legal experts: (1) Norman Eisen, a former Obama administration ethics attorney and current chair of Citizens for Responsibility and Ethics in Washington; (2) Richard Painter, a former Bush administration ethics attorney and current vice chair of Citizens for Responsibility and Ethics in Washington; and (3) Laurence Tribe, a leading expert on constitutional law and professor at Harvard University Law School.
In their summary, Painter, Eisen, and Tribe conclude that the Emoluments Clause of Constitution requires a total divestment in business interests by Trump and his children, with the divestment process conducted by “an independent third party, who can then turn the resulting assets over to a true blind trust.” Their analysis also explains that Mr. Trump turning over his business operations to his children would not constitute such a blind trust.
That Emoluments Clause is explained this way:
“Under the text and purpose of the Emoluments Clause, a “blind trust” in which Mr. Trump’s children manage his assets and run the business is wholly deficient since payments made (and benefits conferred) by foreign states and their agents would still qualify as “any present, Emolument, Office, or Title, of any kind whatever.”
More Legal Views:
All of the concerns about blurred loyalties animating the Clause would remain fully implicated. Blindness in this context works only if neither side can reasonably conclude that the seemingly opaque “wall” is actually a one-way mirror that the other side can see through.”
Commentators have proposed a dizzying array of possible solutions to Mr. Trump’s oncoming Emoluments Clause violation. But the only true solution is for Mr. Trump and his children to divest themselves of all ownership interests in the Trump business empire. That divestment process must be run by an independent third party, who can then turn the resulting assets over to a true blind trust. Even if, as some experts believe, there is nothing that Mr. Trump could do to avoid the significant tax consequences of divesting, fidelity to the Constitution, and to American foreign policy and national security interests, manifestly overcomes all such loss to Mr. Trump or his immediate family (who will remain extremely wealthy, in all events). [Reported on by the Brookings Institute, 12/16/16]
Worthwhile note: According to Eisen and Painter: “Every President in the past four decades has taken Personal Holdings they had before being elected and put them into a Blind Trust in which the assets were controlled by an Independent Party.” [Reported on in the New York Times, 11/30/16]
Finally these two legal opinions:
1. Mr. Tribe called the Trump “scheme” simply a “deceptive web of mumbo-jumbo rather than a serious way to comply with his constitutional oath.”
Tribe then addresses the Emoluments Clause criticisms directly this way:
“It is important to stress that the ethics officer [that Trump] proposes to install wouldn’t have true independence, and anyway it’s not only that particular transactions would be unethical; it’s that the whole phony setup would make President Trump a living, walking, talking, tweeting violation of the Emoluments Clause each time banks or funds linked to foreign sovereigns are allowed to take steps that Trump will necessarily know are enriching the total value of his family’s mega-business.” [Reported on in Law Newz, 1/11/17]
2. From Attorney Joshua Matz, a former U.S. Supreme Court clerk and current appellate litigator, explains this way:
“But Trump’s new plan falls woefully short. His continued ownership interest in the Trump Organization will keep his financial welfare tied to the business. And nobody seriously believes that the affairs of the company will truly become mysterious to Trump.
“To the contrary, he generally will know exactly what assets the company holds and how they will be helped or hindered by his actions. Foreign powers, too, will act with awareness (or at least suspicion) that benefits conferred on Trump enterprises – if not in the form of deals, then in a thousand other forms – may elicit favor or wrath from President Trump.
“Notably, the Trump Organization simply cannot turn over to the US treasury all profit from interactions with foreign powers. For example, consider the significant benefit conferred by a foreign state that decides to host a series of widely advertised functions at a local Trump hotel, greatly increasing the property’s cultural cachet and thus markedly boosting its profit margins and those of other properties branded “Trump”.
“For these and other reasons, Trump will remain in violation of the emoluments clause even if he adheres to this plan. While his lawyer denied that the clause applies to “fair value exchanges” – presumably as distinguished from sweetheart deals – that conclusion defies common sense.” [Reported on in the Guardian, 1/12/17]
Finally, America I ask all of us and more so to all of the Trump voters this simple question: “What the hell have we done?”
So, I guess, stay tuned. BTW: Mr. Trump said in his swearing in speech that the country is in the hands of the voters… So, are we about to see government and the country run by instant polls say from Fox or across Talk Radio la-la land? Whew boy… rough times ahead, folks. Extreme caution needed. Hang on tight.