Elections have consequences.
Not long after he took office, President Obama sought advice from the Justice Department about a potential conflict of interest involving a foreign government. He wanted to know whether he could accept the Nobel Peace Prize.
The answer turned on the Emoluments Clause, an obscure provision of the Constitution that now poses risks for President-elect Donald J. Trump should he continue to reap benefits from transactions with companies controlled by foreign governments.
“Emolument” means compensation for labor or services. And the clause says that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” unless Congress consents.
It took David J. Barron, a Justice Department official who is now a federal appeals court judge in Boston, 13 single-spaced pages to answer Mr. Obama’s question.
Two things were clear, he wrote. The Emoluments Clause “surely” applied to the president, and the prize, which included a check for about $1.4 million, was the sort of thing that would be barred if it came from a foreign state. In the end, however, Mr. Barron concluded that Mr. Obama could accept the prize because the committee that chose him was independent of the Norwegian government and the prize itself was privately financed.
But he said that the answer would be different if a foreign government sought to make a payment to a sitting president. In a footnote, Mr. Barron added, “Corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.”
Mr. Trump’s companies do business with entities controlled by foreign governments and people with ties to them. The ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a “branding” partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest.
Experts in legal ethics say those kinds of arrangements could easily run afoul of the Emoluments Clause if they continue after Mr. Trump takes office. “The founders very clearly intended that officers of the United States, including the president, not accept presents from foreign sovereigns,” said Norman Eisen, who was the chief White House ethics lawyer for Mr. Obama from 2009 to 2011.
“Whenever Mr. Trump receives anything from a foreign sovereign, to the extent that it’s not an arm’s-length transaction,” Mr. Eisen said, “every dollar in excess that they pay over the fair market price will be a dollar paid in violation of the Emoluments Clause and will be a present to Mr. Trump.”
The Supreme Court has never squarely considered the scope of the clause, and there are no historical analogies to help understand how it should apply to a president who owns a sprawling international business empire. Earlier presidents worked hard to avoid even the appearance of a conflict of interest involving a foreign power, said Zephyr Teachout, a law professor at Fordham who ran for Congress in New York this year as a Democrat and lost.
This is the same media that was uninterested in how Bill and Hillary Clinton amassed a fortune in just a few short years from giving speeches and running a charity while Hillary was in the Senate and serving as Secretary of State. This is the same media that was uninterested in Tony Rezko and Solyndra. This is the same media that didn’t give a fuck when Jon Corzine lost $1.2 billion dollars.
Here’s the thing: we’ve never had a president as rich as Donald Trump. We had a few wealthy presidents, including Washington, Jefferson, FDR, JFK and GHWB, but none of them were multi-billionaires. It’s not exactly a secret that Donald Trump is the CEO of an international business empire. And he doesn’t just own stocks that could be sold or placed into a blind trust.
I have no idea what Trump’s personal fortune consists of. Suffice it to say that his business affairs are complicated. This is not something that Trump could simply walk away from. If not handled properly, liquidating or divesting his assets would result in numerous lawsuits which would take many years to resolve.
But let’s assume for the sake of argument that Trump held a fire sale to liquidate his assets before taking office in January. The same media that are insisting that this be done would demanding the investigation of every sale, trade and transaction, alleging that Trump was paid too much by parties with nefarious intent.
So far Trump has not broken any laws that we know of. And while it is nice to see that the media has remembered their role as watchdogs of the public trust, let’s save the hysteria for when Trump actually does something illegal.