Trump's Business Empire Is a Constitutional Train Wreck, and Divesting Won't Help

But there are two things the electors can do about it.

December 17, 2016

But there are two things the electors can do about it.

A lot of helpful suggestions have been offered for how Donald Trump can avoid violating the Constitution’s ban on a President receiving income from foreign powers, the Emoluments Clause – sometimes called the “foreign bribery” clause.

His current plan of keeping ownership of all his properties but turning over their day-to-day management to his two sons solves absolutely nothing. Foreign powers would still be free to put vast sums in the presidential pocket, by renting the presidential suite at his DC hotel for the inauguration (half a million dollars!), or holding lavish celebrations at any Trump property (as Bahrain and Azerbaijan have done), and then bragging about it to the President, to “curry favor,” as they say. Which is precisely why Alexander Hamilton and the other Founding Fathers wrote the Emoluments Clause in the first place.

Brilliant legal minds, from Democratic senators like Elizabeth Warren to ethics experts like Republican Richard Painter and Democrat Norm Eisen, say that the only real solution is for Trump to divest – to place all his assets in a blind trust, where an impartial financial trustee would sell everything and replace it with other good investments. Trump would be totally in the dark. All his assets would be hidden behind an impenetrable wall, rendering Trump “blind” to what he really owns. Perfect!

But wait. Trump’s assets are not mere stocks and bonds in publicly traded companies – a portfolio like prior presidents had, which could be sold and swapped for random other companies. They are one-of-a-kind real estate properties, with the name “Trump” plastered all over them. In fact, the Trump name is an inextricable part of their value. Like “Hilton,” it signifies quality and luxury. Take away the name and the value diminishes. Any buyer would be foolish to pay full price for the building without the brand. And any trustee would breach their fiduciary duty to maximize value if they insisted on omitting the Trump name.

These divesting transactions simply cannot be quiet, and blind. They will be easily visible to the media, to Trump, to foreign powers, and to the American public.

So failure to divest is toxic. But so is divesting.

Trump’s situation is inexorably toxic. Either way, foreign powers will have a clear path to purchase his favor.

He is constitutionally tainted from Day One.

(OK, there’s one possible solution – donating all Trump-branded properties to charity, and putting all other assets into a blind trust – but somehow, that doesn’t seem very likely….)

In two days the electors will meet to formally ratify Trump’s election. Is there anything they can do while they have all this power, and Trump’s undivided attention? Well, at the very least, they should demand to see his tax returns. They are constitutional officers, at least until Monday, and have a duty of fealty to the Constitution that created their office. They must at least check the official record to see whether Trump receives income from foreign powers, which will, a few short weeks from now, be a violation of the Constitution, and an impeachable offense.

Failure to make that demand, in light of the blindingly obvious warning signs of a looming Emoluments Clause train wreck, would be elector malpractice.

But really, because the likelihood of a constitutional train wreck is near 100 percent, the electors should simply reject Trump, thereby throwing the election into the House of Representatives, where of course the winner will still be Trump. But at least the electors will be able to sleep at night, their conscience clear, their constitutional duty fulfilled.

And if they need a little extra convincing, they could consider the emerging evidence that Russia hacked the election, specifically to elect Trump. But that’s a whole nuther story….

Scott Wallace is an attorney, former counsel to Republicans on two US Senate committees, and current co-chair of the Wallace Global Fund, a foundation based in Washington DC founded by his grandfather, former US Vice President Henry A. Wallace. He also serves on the board of the Brennan Center.