Trump's foreign deals risk Constitution clash

As president, Donald Trump could profit substantially from foreign officials seeking to influence the new leader of the free world, a development that would violate the U.S. Constitution.

From Trump Tower in the Philippines to India and Saudi Arabia, foreign leaders would have an obvious lever to attempt to curry favor with the nation’s 45th president by pushing business to his children or other corporate officials, according to bipartisan ethics lawyers and constitutional scholars.

“There’s enormous potential for foreign influence over national policy, which is something we’ve always guarded against” over the nation’s 240-year history, said Jay Wexler, a law professor at Boston University who published a book on lesser-known constitutional provisions.

Trump plans a Dec. 15 news conference with his children to announce what steps he will take to avoid conflicts of interest. The New York Times reported that the real estate billionaire may transfer operational control of his corporate empire to his two adult sons rather than relinquishing ownership to an independent trustee, as ethics experts are encouraging him to do.

Two initial conflicts could land Trump in immediate violation of the "Emoluments Clause," an anti-bribery provision that forbids the president from receiving gifts from foreign leaders and is derived from the Latin word “emolumentum,” meaning “profit” or “gain.” It says political officials cannot  "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

The clause is so absolute that, in 1787, it forbade any gifts — even trinkets like copper, baubles and portraits. In 2016, foreign dignitaries booking the new Trump International Hotel, just blocks from the White House, for his Jan. 20 inauguration and probably a loan from the Bank of China for one of his Manhattan office buildings would be violations, according to legal experts. Both can be considered profits or gains from foreign officials. For instance, on Dec. 7 Bahrain held a national day of celebration at the hotel.

Trump has at least 28 foreign properties and partnerships that could generate money from foreign officials and trigger a violation of the Emoluments Clause, according to a USA TODAY analysis of financial disclosure forms. Beyond those 28 foreign properties are a series of other deals that could expand that list of potential sources of foreign income.

Asked about Trump’s plans, spokesman Jason Miller told reporters: “That will be something that will be discussed in more detail in a week.”

So far, Republican congressional leaders have not called for Trump to sell off his businesses. Rep. Jason Chaffetz, a Utah Republican and chairman of the House Oversight and Government Reform Committee, said Trump is not legally obligated to sell. However, Chaffetz said, "there are public perceptions that I’m sure they’re keenly aware of.”

Deals around the world

Some of his foreign dealings that could come under scrutiny include:

• The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan.

• In the Philippines, Trump’s business partner has been named special envoy to the United States. Businessman Jose E.B. Antonio is the founder of Century Properties Group Inc., the company behind Trump Tower in Manila. Shares surged 20% the day after Trump was elected. President Rodrigo Duterte is conducting a bloody crackdown to "kill all" suspected drug users and dealers that's drawn strong foreign criticism including from the United States. According to Duterte, Trump endorsed his approach in a recent phone call.

• In Azerbaijan, Trump’s partner is Anar Mammadov, a 34-year-old billionaire whose father is Azerbaijan’s transportation minister accused of using his position to enrich his family. Mammadov is trying to rehabilitate the nation’s “kleptocratic image” by “courting some of Washington’s most powerful politicians,” according to a 2015 article by Mother Jones.

• In India, Trump has licensed his brand to Trump Tower Mumbai, a luxury condo project being developed by Lodha Group, a real estate giant whose founder is a wealthy politician in the country’s governing party. At an October campaign event in New Jersey, Trump boasted of his “massive” and “very beautiful” projects in India. Just after the election, some of his Indian business partners flew to New York to meet with him and his children. Newspapers in India reported it as a business meeting.

• Trump has registered eight new companies in Saudi Arabia. At an Alabama rally last year Trump said: “Saudi Arabia, I get along with all of them. They buy apartments from me. They spend $40 million, $50 million. Am I supposed to dislike them? I like them very much.”

• Separately, in June 2001, Trump sold the 45th floor of Trump Tower to the Saudi royal family for $4.5 million, space that was later converted to the Saudi Mission to the United Nations, according to the New York Daily News.

Potential violations

The potential violations are so serious that Trump risks eventual impeachment unless he, at a minimum, transfers ownership to his kids or another party, said Richard Painter, a former ethics lawyer under President George W. Bush.

Stephen Gillers, a professor who specializes in ethics at New York University School of Law, agreed: “If Trump Enterprises is getting something of value from a foreign government that’s a violation. It’s a violation as of Day One” of his presidency, he said.

Concerns over such conflicts of interests have driven every president for the past 40 years to use a blind trust or the equivalent. While Trump may avoid a constitutional crisis by relinquishing ownership — and not just control — to his children, the only way to avoid a “never-ending drumbeat” about conflicts of interest and quid pro quos “that overshadows every initiative” is to enlist an independent trustee, said Norm Eisen, a former ethics lawyer under President Obama.

The potential for Trump to personally profit via influence-seeking foreigners extends well beyond hotel patrons: from receiving building permits to tax breaks and subsidies and choking off would-be competitors. Even the conservative Wall Street Journal editorial board has called on Trump to divest.

“When you put out a big ‘For Sale’ sign in front of the Oval Office you’re going to get bid,”  Eisen said. “You put yourself in a place of big jeopardy because a lot of people are going to try to have conversations they shouldn’t have with Trump’s officials and kids.”

side from constitutional concerns, Trump’s holdings could make him a litigation magnet. Outside contractors and businesses could be egged on and even funded by Trump’s political opponents in the same way former president Bill Clinton’s critics subsidized Paula Jones, the former Arkansas state employee who’d accused him of sexual harassment.

Despite these entanglements the Republican-led Congress would have to exercise its oversight authority for there to be any consequences. That's something it seems unlikely to do. Chaffetz, the oversight chairman, recently said Trump’s moving in the right direction. He "needs to instill the confidence that he’s more than arm’s length away,” Chaffetz told Politico. Further, a new Bloomberg poll found a majority of the public believes he should be able to keep his businesses.

Democrats, including Rep. Adam Schiff of California, are sounding alarm bells.

Here's an initial example. Turkey had been threatening to take Trump’s name off of buildings in that country because of his anti-Muslim comments. Since 2014, Trump’s company has been paid up to $10 million by the tower’s developers to use his name atop a luxury complex in Istanbul. Then retired lieutenant general Michael Flynn, Trump’s designated national security adviser, wrote an op-ed for The Hill calling on the United States to be more sympathetic to Turkey and the concerns of President Recep Erdogan. The Turkish leader is using a failed military coup to consolidate his power and lock up thousands of people who had nothing to do with it, Schiff told reporters. After Flynn's comments Erdogan has dropped his calls to remove Trump's name, said Schiff. “Is it (Trump’s) economic interests” that are behind Flynn’s support? Schiff asked. “These are not questions the public should be asking a new president once he takes office,” he said.

"I have a little conflict of interest 'cause I have a major, major building in Istanbul," Trump said. "It's a tremendously successful job. It's called Trump Towers — two towers, instead of one, not the usual one, it's two."

If Trump fails to divest and Congress does not act, “It could be somebody much lower down the organization who gets in trouble for this," said Painter.

Contributing: John Kelly, Erin Kelly and Fredreka Schouten

USA TODAY


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