Senators cite Constitution’s language shielding President from foreign financial influence
WASHINGTON – U.S. Senator Ben Cardin (D-Md.), Ranking Member of the Senate Foreign Relations Committee and a Member of the Senate Finance Committee, led 32 of his colleagues Thursday to introduce a resolution calling upon President Trump to follow the precedent established by prior Presidents and convert his assets to simple, conflict-free holdings, adopt blind trusts managed by an independent trustee with no relationship to the President or his businesses, or take other equivalent measures in order to avoid a potential violation of the Constitution of the United States.
Article I, Section 9, Clause 8 of the U.S. Constitution provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
The Senate resolution introduced today, “finds the promised actions outlined by President Donald J. Trump at his January 11, 2017, press conference wholly inadequate and insufficient to ensure compliance with the Emoluments Clause of the United States Constitution.”
Reports continue to show that foreign countries, companies, and businesses are beginning to take advantage of the President’s continued connection to his businesses in order to possibly curry favor or apply pressure, including in Saudi Arabia, Turkey, and China.
“The American public has a right to know that the President of the United States is acting in their best interest, and not because he or she has received some benefit or gift from a foreign government or related entity,” Senator Cardin said. “They need to know that the President of the United States is making decisions based on what is in the public interest and not because it would advance the President’s private interests. This resolution is intended to send a clear message to the President that he must take appropriate action since he has now sworn an oath of office to preserve, protect and defend the Constitution.”
“Let us remember John Adams’ important words, ‘We are a government of laws, and not of men’,” Cardin added.
Joining Senator Cardin in introducing his resolution as original co-sponsors are Senators: Patrick Leahy (D-Vt.); Claire McCaskill (D-Mo.); Elizabeth Warren (D-Mass.); Tom Carper (D-Del.); Dianne Feinstein (D-Calif.); Patty Murray (D-Wash.); Ron Wyden (D-Ore.); Dick Durbin (D-Ill.); Jack Reed (D-R.I.); Debbie Stabenow (D-Mich.); Sherrod Brown (D-Ohio); Bob Casey (D-Penn.); Amy Klobuchar (D-Minn.); Sheldon Whitehouse (D-R.I.); Tom Udall (D-N.M.); Jeff Merkley (D-Ore.); Michael Bennet (D-Colo.); Kirsten Gillibrand (D-N.Y.); Al Franken (D-Minn.); Chris Coons (D-Del.); Richard Blumenthal (D-Conn.); Tammy Baldwin (D-Wis.); Chris Murphy (D-Conn.); Mazie Hirono (D-Hawaii); Martin Heinrich (D-N.M.); Ed Markey (D-Mass.); Cory Booker (D-N.J.); Gary Peters (D-Mich.); Chris Van Hollen (D-Md.); Tammy Duckworth (D-Ill.); Kamala Harris (D-Calif.); and Catherine Cortez-Masto (D-Nev.).
The text of the resolution follows:
Title: Clarifying any potential misunderstanding as to whether actions taken by President Donald J. Trump constitute a violation of the Emoluments Clause, and calling on President Trump to divest his interest in, and sever his relationship to, the Trump Organization.
Whereas article I, section 9, clause 8 of the United States Constitution (commonly known as the “Emoluments Clause”) declares, “No title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”;
Whereas, according to the remarks of Governor Edmund Randolph at the 1787 Constitutional Convention, the Emoluments Clause “was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states”;
Whereas the issue of foreign corruption greatly concerned the Founding Fathers of the United States, such that Alexander Hamilton in Federalist No. 22 wrote, “In republics, persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust, which, to any but minds animated and guided by superior virtue, may appear to exceed the proportion of interest they have in the common stock, and to overbalance the obligations of duty. Hence it is that history furnishes us with so many mortifying examples of the prevalency of foreign corruption in republican governments.”;
Whereas the President of the United States is the head of the executive branch of the Federal Government and is expected to have undivided loyalty to the United States, and clearly occupies an “office of profit or trust” within the meaning of article I, section 9, clause 8 of the Constitution, according to the Office of Legal Counsel of the Department of Justice;
Whereas the Office of Legal Counsel of the Department of Justice opined in 2009 that corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause;
Whereas President Donald J. Trump has a business network, the Trump Organization, that has financial interests around the world and negotiates and concludes transactions with foreign states and entities that are extensions of foreign states;
Whereas the very nature of a “blind trust,” as defined by former White House Ethics Counsels Richard Painter and Norm Eisen in an opinion piece in the Washington Post entitled, “Trump’s ‘blind trust’ is neither blind nor trustworthy”, dated November 15, 2016, and the Congressional Research Service report “The Use of Blind Trusts By Federal Officials”, is such that the official will have no control over, will receive no communications about, and will have no knowledge of the identity of the specific assets held in the trust, and that the manager of the trust is independent of the owner;
Whereas on January 11, 2017, President-elect Donald J. Trump and his lawyers held a press conference to announce that he would be placing his assets in a trust and turning over management of the Trump Organization to his two adult sons, Donald Trump Jr. and Eric Trump, and executive Allen Weisselberg; that there will be no communication with President Trump and no new overseas business deals; that an ethics advisor will be appointed to the management team to fully vet any new proposed domestic deals; and that the Trump Organization will donate any profits from any foreign governments that use Trump hotels to the Department of the Treasury;
Whereas this arrangement is not sufficient because of its utter lack of independent accountability and transparency, such that the director of the Office of Government Ethics has stated that “[t]he plan the [President] has announced doesn’t meet the standards that the best of his nominees are meeting and that every president in the last four decades have met”;
Whereas the director of the Office of Government Ethics has characterized the promise to limit President Trump’s direct communication about the Trump Organization as “wholly inadequate” because President Trump would still be well-aware of the specific assets held and could receive communications about and take actions to affect the value of those assets, especially when those running the business are his own children, whom Trump will see often;
Whereas the promise that no new overseas business deals will be agreed to by the Trump Organization fails to explain what constitutes a deal, and whether expansions to existing properties, licensing or permitting fee agreements, or loans from foreign banks like Deutsche Bank AG would qualify as “deals”;
Whereas the promise that the Trump Organization will donate profits from any foreign governments that use Trump hotels does not include Trump golf courses and other properties; does not explain whether the promise covers foreign government officials who register under their own names or third-party vendors hired by foreign governments to do business with the Trump Organization; does not explain whether foreign organizations signing tenant agreements with domestic Trump businesses, such as the Industrial and Commercial Bank of China, which is Trump Tower’s biggest tenant, qualifies; does not define what constitutes “profits”; does not address the fact that revenue received by a failing business still provides value to that business even if there is no net profit; and has no mechanism for the public to verify that the promise is being fulfilled;
Whereas President Trump’s lawyer claimed that “it would be impossible to find an institutional trustee that would be competent to run the Trump Organization” when there are dozens if not hundreds of highly qualified trustees who handle complicated business situations like the disposition of the Trump Organization;
Whereas, at the January 11, 2017, press conference, President-elect Trump’s lawyer implied that the only reason people have raised the Emoluments Clause is over “routine business transactions like paying for hotel rooms” and claimed that “[p]aying for a hotel room is not a gift or a present, and it has nothing to do with an office. It’s not an emolument.”;
Whereas a comprehensive study of the Emoluments Clause written by Richard Painter, Norman Eisen, and Lawrence Tribe, two of whom are former ethics counsels to past Presidents, has concluded that “since emoluments are properly defined as including ‘profit’ from any employment, as well as ‘salary,’ it is clear that even remuneration fairly earned in commerce can qualify”;
Whereas numerous legal and constitutional experts, including several former White House ethics counsels, have also made clear that the arrangement announced on January 11, 2017, in which the President fails to exit the ownership of his businesses through use of a blind trust or equivalent, will leave the President with a personal financial interest in businesses that collect foreign government payments and benefits, which raises both constitutional and public interest concerns;
Whereas Presidents Ronald Reagan, George H. W. Bush, William J. Clinton, and George W. Bush have set the precedent of using true blind trusts, in which their holdings were liquidated and placed in new investments unknown to them by an independent trustee who managed them free of familial bias;
Whereas the continued intermingling of the business of the Trump Organization and the work of government has the potential to constitute the foreign corruption so feared by the Founding Fathers and to betray the trust of America’s citizens;
Whereas, on January 20, 2017, President Trump swore an oath to preserve, protect, and defend the Constitution of the United States, the rights, privileges and limitations of which are defined and guarded by the Federal judiciary of the United States; and
Whereas Congress has an institutional, constitutional obligation to ensure that the President of the United States does not violate the Emoluments Clause of the Constitution, Federal law, or fundamental principles of ethics, and is discharging the obligations of office based on the national interest, not based on personal interest: Now, therefore, be it
Resolved by the Senate (the House of Representatives concurring), That Congress—
(1) finds the promised actions outlined by President Donald J. Trump at his January 11, 2017, press conference wholly inadequate and insufficient to ensure compliance with the Emoluments Clause of the United States Constitution;
(2) calls upon President Trump to follow the precedent established by prior Presidents and convert his assets to simple, conflict-free holdings, adopt blind trusts managed by an independent trustee with no relationship to Donald J. Trump or his businesses, or take other equivalent measures;
(3) calls upon President Trump not to use the powers or opportunities of his position as President of the United States for any purpose related to the Trump Organization; and
(4) regards, in the absence of express affirmative authorization by Congress, dealings that Donald J. Trump, as President of the United States, may have through his companies with foreign governments or entities owned or controlled by foreign governments as potential violations of the Emoluments Clause.
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