Members of the Electoral College should not make Donald Trump the next president unless his sells his companies and puts the proceeds in a blind trust, according to the top ethics lawyers for the last two presidents.
Richard Painter, Chief Ethics Counsel for George W. Bush, and Norman Eisen, Chief Ethics Counsel for Barack Obama, believe that if Trump continues retain ownership over his sprawling business interests by the time the electors meet on December 19, they should reject Trump.
In an email to ThinkProgress, Eisen explained that “the founders did not want any foreign payments to the president. Period.” This principle is enshrined in Article 1, Section 9 of the Constitution, which bars office holders from accepting “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
This provision was specifically created to prevent the President, most of all, from being corrupted by foreign influences.
Virginia Governor Edmund Jennings Randolph addressed the issue directly during a Constitutional debate in June 1788, noting that a violation of the provision by the President would be grounds for impeachment. (Randolph was also a delegate to the Constitutional Convention.)
There is another provision against the danger mentioned by the honorable member, of the president receiving emoluments from foreign powers. If discovered he may be impeached. If he be not impeached he may be displaced at the end of the four years. By the ninth section, of the first article, “No person holding an office of profit or trust, shall accept of any present or emolument whatever, from any foreign power, without the consent of the representatives of the people” … I consider, therefore, that he is restrained from receiving any present or emoluments whatever. It is impossible to guard better against corruption.”
Eisen said that Trump’s businesses, foreign and domestic, “are receiving a stream of such payments.” A prime example is Trump’s new hotel in Washington DC which, according to Eisen, is “actively seeking emoluments to Trump: payments from foreign governments for use of the hotel.”
“The notion that his (through his agents) solicitation of those payments, and the foreign governments making of those payments, is unrelated to his office is laughable,” Eisen added.
This problem will be repeated “over and over” again with Trump’s other properties and business interests. The only way to cure this Constitutional violation is for Trump to sell his companies and set up a blind trust before he takes office.
Electors should insist that Trump set up a blind trust as a condition of their vote, Eisen said. Another option, however unlikely, is for “Republicans in Congress [to] admit that they endorse Trump’s exploitation of public office for private gain and authorize his emoluments as the Constitution allows.”
Eisen’s conclusions are shared by Harvard Law Professor Larry Tribe, one of the nation’s preeminent constitutional scholars. Tribe told ThinkProgress that, after extensive research, he concluded that “Trump’s ongoing business dealings around the world would make him the recipient of constitutionally prohibited ‘Emoluments’ from ‘any King, Prince, or foreign State’ — in the original sense of payments and not necessarily presents or gifts — from the very moment he takes the oath.”
The only solution would be to divest completely from his businesses. Failing that, Tribe elaborated on the consequences:
Trump would be knowingly breaking his oath of exclusive fealty (under Art. II, Sec.1) to a Constitution whose very first Article (Art. I, Sec. 9) — an Article deliberately designed to prevent any U.S. official,especially the Chief Executive, from being indebted to, or otherwise the recipient of financial remuneration from, any foreign power or entity answerable to such a power — he would be violating as he repeated the words recited by the Chief Justice.
Tribe said the violation would qualify as one of the “high Crimes and Misdemeanors” that would require Trump to be “removed from Office.”
This is where the Electoral College comes in. Tribe notes that the Electoral College was “originally conceived by Framers like Alexander Hamilton as a vital safeguard against the assumption of the Presidency by an ‘unfit character’ or one incapable of serving faithfully to ‘execute the Office of President of the United States [and] preserve, protect, and defend the Constitution of the United States.’”
“[T]o vote for Trump in the absence of such complete divestment… would represent an abdication of the solemn duties of the 538 Electors,” Tribe said. This view is not a position of disgruntled liberals. Richard Painter, Bush’s Chief Ethics Counsel, was in complete agreement with Tribe and Eisen during a recent appearance on CNN.
“I don’t think the electoral college can vote for someone to become president if he’s going to be in violation of the Constitution on day one and hasn’t assured us he’s not in violation,” Painter said.
Painter also suggested a cure for the constitutional problem short of total divestment. Trump could agree to have his businesses audited and any payment from a foreign government be turned over to the United States. (Tribe does not think this would actually cure the Constitutional violation.)
Thus far, Trump has not shown a willingness to do anything. Trump told the New York Times that he is under no obligation to set up a trust and he “could run my business perfectly, and then run the country perfectly.” Instead, he plans on having his adult children run the company while he retains ownership.
Trump told a room full of reporters that “the law is totally on my side, meaning, the president can’t have a conflict of interest.” Painter told CNN that his attempts to warn the Trump transition of the legal consequences of their approach, including emails to adviser Kellyanne Conway, are being ignored.
Meanwhile, Trump has already sought to leverage the office of the presidency to pressure foreign governments to take actions that would improve his bottom line. Trump admitted that he asked a group of British politicians to kill a proposed wind farm he believed would mar the views at a golf course he owns in Scotland. He reportedly asked the president of Argentina to approve permits for a high-rise in Buenos Aires. (Trump denied the allegation, although his local partner announced the project was moving forward the next day.) Trump has also had his daughter Ivanka, who is supposedly managing his day-to-day business interests, sit in on meetings with heads of state.
Eisen views the current situation as dire. If Trump is permitted to be sworn in as president without selling his companies, he says, the country is facing a “wholesale oligarchic kleptocracy of a kind that we have never seen before in our history.”