SECRETIVE

Is Trump Stiffing the Constitution Over His Conflicts of Interest?

Law professor Zephyr Teachout is part of a watchdog group charging that Donald Trump’s many conflicts of interest violate constitutional strictures. Let her walk you through it.

Andrew Burton/Getty

Three days into Donald Trump’s presidency, the nonpartisan watchdog group Citizens for Responsibility and Ethics (CREW) in Washington filed a lawsuit charging Trump with violating the Constitution. Since the ’70s, every president who has owned a business sold it to avoid conflicts of interest. But Trump ignored precedent, turning his businesses over to his sons instead. He claimed he would not be involved with daily operations or benefit from the companies while in office. Yet documents recently discovered show that Trump continues to benefit from them, and because the companies receive payments from foreign governments, President Trump is, the suit argues, violating the Constitution. Trump called the suit “totally without merit.”

Zephyr Teachout, the former New York gubernatorial and congressional candidate, is one of the lawyers on the suit. A Fordham law professor, Teachout is an expert on political corruption and conflicts of interest. She is adamant that President Trump’s thorny business relationships are the kind the Framers were concerned about. In 2014, Teachout authored Corruption in America, a book about how our Founding Fathers viewed political corruption and the safeguards they put in place to prevent it. One of those safeguards is a constitutional clause that prohibits federal officials from taking benefits from foreign governments. I recently spoke to Teachout about the suit, the president’s vast conflicts of interests, and why the Framers wanted impeachment to be a potential punishment for them.

Tell me why you believe the president is violating the Constitution.

The provision he’s violating is the Foreign Emoluments Clause. You might have skipped it in history class but it was very important to the Framers. They were concerned that foreign interests would influence American foreign policy. This clause forbids any federal officer, including the president, from taking a “present, Emolument, Office, or Title, of any kind whatever” from a foreign government. Emoluments, as understood then and as consistently understood, are payments or benefits that lead to a profit.

So that would include hotel bills, golf course memberships?

Yes. He’s receiving four sources of emoluments. One is from Trump Towers in New York. The government of China, through the Industrial and Commercial Bank of China, is one of the largest tenants. The UAE also has a government-owned entity as a tenant. So in both cases you have foreign government money going into Trump’s pocket. In 2019 the lease by the Chinese bank is up, and negotiations are on to renew it, so China is in a position to make Donald Trump richer or poorer. That’s a situation to potentially influence our president. The second is the hotels, particularly the Trump International Hotel in D.C. where foreign diplomats may be staying to curry favor with him. The third is royalties from Celebrity Apprentice and the New Celebrity Apprentice, which are distributed internationally. In [two countries], the payments [are from government sources]. The fourth category is his global developments. Trump companies are engaged in developments in India, Turkey, China, the UAE, Indonesia, the Philippines, Saudi Arabia, and there are questions about Russia and Taiwan. These are massive projects where governments can approve or deny permits that have a massive commercial value. Again, they are opportunities for foreign governments to make President Trump richer or poorer.

Trump’s lawyers argue that the Emoluments Clause doesn’t apply to fair-market payments.

That doesn’t make sense. When you’re defining the term, you need to look at the meaning when it was written, and the context and purpose. The term emoluments was broadly used when the Constitution was written and it included transactions where the officer received a benefit. When you look at context, there’s a separate section that applies to presents or gifts, and each has a distinct meaning. As for the purpose, the Framers were worried about foreign governments influencing federal officers. The kinds of relationships Trump is in are the kinds that the framers were concerned about.

He’s said he will donate all profits from foreign governments to a charity. Would that eliminate the constitutional violation?

This argument is strange. First, the promise to donate profits only applied to one of his four benefits streams—the hotels. It doesn’t deal with Trump Tower, the Apprentice, or his global developments. Also, it’s kind of an admission of guilt. You don’t create a remedy unless you acknowledge there’s a problem. Trump has made statements that suggest he knows something is wrong. He’s said he would never make deals with Russia because that would create a conflict, for example, and he’s mentioned a conflict in Turkey because he has a development there. This solution is like committing a sin and paying a penance afterward. You can’t do that. You violate the Constitution the minute the benefit is accepted.

So in order to abide by the Constitution, what would President Trump need to do?

Sell his companies, turn them into liquid assets, and put them in a blind trust which a trustee can manage. This is something that CREW’s Co-Chairs Richard Painter, the former ethics czar for George W. Bush, and Norm Eisen, the former ethics czar for President Obama, have been outspoken about. CREW did everything it could to try to get Trump to avoid this serious constitutional violation. His failure to sell has already undermined the integrity of many of his positions. People questioned whether his anti-Muslim executive order applied to some countries and not others because of business interests. People questioned whether the quick movement on the pipelines was because he has a financial interest in them. President Trump will be engaged in trade policy and serious military decisions. These will be constantly questioned because we don’t know the scope of the foreign government payments because he hasn’t released his tax returns.

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Will this suit force him to release his tax returns?

It’s a necessary part of understanding the scope of the violation and its particulars.

Do you know when the suit will move forward?

Not yet. We filed in the Southern District of New York, and we’re waiting for Judge Ronnie Abrams to set the schedule.

President Trump’s marketing practices could also raise questions if he or family members use political events to market Trump products. In your book, you wrote: “An act is corrupt when private interests trump public ones in the exercise of public power, and a person is corrupt when they use public power for their own ends.” Would these marketing efforts meet your description of corruption?

Everything he’s done so far suggests that he has a serious problem with corruption. But what I emphasize in the book is that because we cannot peer into other’s hearts and know what motivates them, the best anti-corruption laws are prophylactic. Like the Emoluments Clause. It says you can’t take gifts and emoluments from foreign governments. It doesn’t say that only applies when you have an explicit deal. We aren’t going to be able to know when somebody is being influenced so the best protection against corruption are clear rules that prohibit behavior regardless of intent. Beyond the Emoluments Clause we have a problem with a series of conflicts throughout his administration. This is one part of an octopus of potential corruption and conflicts of interest in this administration.

In your book, you quote Gouverneur Morris, one of our Founders, discussing wealth. He wrote that “wealth tends to corrupt the mind and to nourish its love of power and to stimulate it to oppression.” Do you believe we should avoid electing wealthy politicians?

No. The book makes a strong argument about the nature of corruption, but it also sets a historical context. The more relevant Morris comment is that he said it’s important to have an impeachment clause in the Constitution because of the possibility of the chief executive, or the first magistrate as he called it, being in foreign pay. He recalled to members of the Constitutional Convention that Charles II, the 17th century English king, was secretly paid by Louis XIV, leading to a deal that allowed Louis XIV to capture more power, possibly to England’s detriment. One reason we need an impeachment clause, Morris said, is because a future president “may be bribed by a greater interest to betray his trust.”