Trump Conflicts Could Violate The Constitution On Day 1, Lawyers Say
STEVE INSKEEP, HOST:
Yesterday's varied statements by President-elect Trump included this. He said he still favors the phrase drain the swamp. That was an apparent response to a statement here on MORNING EDITION. Trump supporter Newt Gingrich, the former House speaker, told Rachel Martin that Trump was dropping that campaign phrase drain the swamp, meant to describe the fight against corruption.
The president-elect was silent about another thing Gingrich said. He said Trump must address his own business conflicts of interest. The president-elect has yet to explain how he will separate himself from his business. He owns golf courses and buildings, licenses his name to other buildings around the world and owes hundreds of millions of dollars in loans to banks in Germany and China.
To get some bipartisan clarity, we've brought back Richard Painter, who was President George W. Bush's top ethics lawyer, and Norman Eisen, who is President Obama's. We'll hear Eisen answer first.
What are the laws, again, that apply to the president of the United States?
NORMAN EISEN: The same fundamental law that applies to everyone who serves in American government. And that, of course, is the Constitution. And the Constitution prohibits the president from receiving payments from foreign governments. Unless Donald Trump changes course, he will be in violation of the Constitution on day one, hour one and minute one because his businesses in the United States and around the world receive a steady flow of proceeds from foreign governments. Of course...
INSKEEP: What are you talking about here? Of course, he's dealing with businesses. Do you mean state-owned firms? Which ones do you mean?
EISEN: We need travel no further than a few blocks from the White House, the Trump Hotel. There's been controversy now about whether or not they're pressuring governments to leave other hotels in Washington and come to their hotel. Whether those allegations are proven or not, there can be no question that the Trump Hotel in D.C. is aggressively seeking business from foreign governments.
Once Mr. Trump takes the oath of office, that will be a violation of the Constitution. The founders of our country were so concerned about these foreign government gifts - payments - that they actually put a clause in the Constitution. It's called the Emoluments Clause. That's just an 18th-century word for foreign government benefits.
INSKEEP: Richard Painter, I want to make sure that we're clear on this because the president-elect has noted that the federal ethics law does not cover the president. He has said, quote, "the president cannot have a conflict of interest." You're saying that the Constitution overrides that?
RICHARD PAINTER: He's just wrong on that. That's a separate federal-ethics law that we can talk about. But the Emoluments Clause applies to everybody in the government, including the president. And this isn't just involving the hotel. We have foreign state-owned banks that lease space in Trump buildings, loans from the Bank of China, the various Trump businesses. All of that needs to be unwound by January 20, or he needs to sell those businesses. That's the price of public service.
INSKEEP: Norm Eisen, I want to come back to you because Mr. Trump has said that what he wants to do is turn his businesses over to his grown children. What's wrong with that?
EISEN: Well he's going to be setting himself and his kids and his administration up for scandal after scandal, I think, putting his family at risk of criminal violations, as well. All over the world, we see this. You have government leaders who themselves can't do business. So they appoint - there's even a name for it - the princelings. The kids become the conduit for influence, for business deals, for amassing wealth, whispering in the ear of the government leader.
And it leads to corruption inevitably. And the same is going to happen here. There is nothing complicated about what Mr. Trump has to do. He can sign a simple one-page piece of paper - turns over all of his business operations and interests to an independent trustee. Let the trustee worry about the kids. Let the trustee deal with these problems. And let Mr. Trump focus on governing in the way that he promised.
INSKEEP: Wait a minute. Trump and his staff have said this is very, very hard - not simple at all. They have said, for example, that blind trust, which I think is what you're describing, is impossible - like turning the businesses over to somebody who would operate them out of the view of the president because the business is a very visible. His name is on buildings. Isn't this really hard?
EISEN: Yeah. I heard Mr. Gingrich make this statement on your program.
INSKEEP: Newt Gingrich, the former speaker of the House, a big Trump supporter. OK.
EISEN: It is ridiculous. It's simple. You give it to the trustee. And you let the trustee figure out what he should do. Should he get private equity and to refinance? How is he going to deal with the kids and the Trump executives? What kind of walls are going to be set up? Think what a relief it would be to Mr. Trump and to the world if he simply said, look, I've picked the best independent trustee. He's going to worry about all of that. I'm going to worry about governing the country with integrity and draining the swamp. That's simple.
INSKEEP: Well let's bring Richard Painter back in because Trump told The New York Times it would be really hard to deal with this because he owns a lot of real estate, which can be very hard to sell. Some of his supporters say he'd have to sell everything in a fire sale. Would he have to conduct a fire sale of his properties?
PAINTER: I don't think so. There are ways to bring in private-equity firms and other buyers. There's a liquid market for real estate. Yes, it's complex. And it can't all be done in a day. And then there's some other issues. I mean, there's some buildings the name has to come off of. We cannot have the president's name up on a building in a high-risk zone for terrorism. And that's not a financial conflicts-of-interest issue. It's a simple question of common sense. And the question of who's going to protect that building - if it's a foreign government at its own expense, then we're right back with the Emoluments Clause problem.
INSKEEP: Wait a minute. You're saying that if the government of the Philippines, say, or some other country provided extra security for a Trump hotel, that would be benefiting Trump's business. And that would be a violation of the Constitution if he still owns it.
PAINTER: It could be. This is the problem. If he's making a profit off having his name on the hotel - but having his name on the hotel requires substantial amounts of money to be spent by the foreign government protecting the hotel without reimbursement from the Trump organization. I would think there would be a serious question of the Emoluments Clause if he owns the hotel. But, you know, I want to emphasize about the role of Congress here, though.
I hope the House of Representatives exercises serious oversight. I'm a Republican. I'd like to see Republicans there hopefully rein in some of the spending. But if they cannot exercise oversight over the Trump administration, the voters are going to rebel against that in two years. And I hope, for the sake of the Republican members of the House, that they take their oversight responsibility seriously. We can't have the fox in charge of the chicken coop.
INSKEEP: Couple of other things, gentlemen. In the weeks since we've talked, Mr. Trump's children have appeared in more meetings with the president-elect. And world leaders, business leaders, for example - some of them were seen in a meeting with leading tech-industry executives in New York at Trump Tower a number of days ago. Is there anything wrong with that?
PAINTER: Well, they need to figure out who's playing on what team. There are going to be those in the Trump family, perhaps Ivanka and her husband Jared, who want to be in the government. And to the extent that can be done consistent with anti-nepotism laws - well, then so be it. But if they're going to be on the government team, they need to play by the government rules. And those going to be running businesses shouldn't be sitting in on official meetings. I'd like to see some clarity as to who's doing what.
INSKEEP: Richard Painter was the top ethics lawyer for President George W. Bush. Norman Eisen was the top ethics lawyer for President Obama. Gentlemen, thanks to you both.
EISEN: Thanks, Steve.
PAINTER: Thank you. Transcript provided by NPR, Copyright NPR.