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.
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