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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.