[Congressional Record Volume 162, Number 170 (Tuesday, November 29, 2016)]
[Senate]
[Pages S6553-S6556]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENATE CONCURRENT RESOLUTION 56--CLARIFYING ANY POTENTIAL
MISUNDERSTANDING AS TO WHETHER ACTIONS TAKEN BY PRESIDENT-ELECT DONALD
TRUMP CONSTITUTE A VIOLATION OF THE EMOLUMENTS CLAUSE, AND CALLING ON
PRESIDENT-ELECT TRUMP TO DIVEST HIS INTEREST IN, AND SEVER HIS
RELATIONSHIP TO, THE TRUMP ORGANIZATION
Mr. CARDIN (for himself, Mr. Leahy, Mr. Reid, Mr. Durbin, Ms.
Mikulski, Mrs. Boxer, Mr. Wyden, Mr. Reed, Mr. Carper, Ms. Stabenow,
Mr. Whitehouse, Mr. Udall, Mr. Merkley, Mr. Bennet, Mr. Franken, Mr.
Coons, Ms. Baldwin, Mr. Murphy, Ms. Hirono, Mr. Heinrich, Ms. Warren,
Mr. Markey, Mr. Booker, and Mr. Casey) submitted the following
concurrent resolution; which was referred to the Committee on Homeland
Security and Governmental Affairs:
S. Con. Res. 56
Whereas article I, section 9, clause 8 of the United States
Constitution (commonly known as the ``Emoluments Clause'')
declares, ``No title of Nobility shall be granted by the
United States: And no Person holding any Office of Profit or
Trust under them, shall, without the Consent of the Congress,
accept of any present, Emolument, Office, or Title, of any
kind whatever, from any King, Prince, or foreign State.'';
Whereas, according to the remarks of Governor Edmund
Randolph at the 1787 Constitutional Convention, the
Emoluments Clause ``was thought proper, in order to exclude
corruption and foreign influence, to prohibit any one in
office from receiving or holding any emoluments from foreign
states'';
Whereas the issue of foreign corruption greatly concerned
the Founding Fathers of the United States, such that
Alexander Hamilton in Federalist No. 22 wrote, ``In
republics, persons elevated from the mass of the community,
by the suffrages of their fellow-citizens, to stations of
great pre-eminence and power, may find compensations for
betraying their trust, which, to any but minds animated and
guided by superior virtue, may appear to exceed the
proportion of interest they have in the common stock, and to
overbalance the obligations of duty. Hence it is that history
furnishes us with so many mortifying examples of the
prevalency of foreign corruption in republican
governments.'';
Whereas the President of the United States is the head of
the executive branch of the Federal Government and is
expected to have undivided loyalty to the United States, and
clearly occupies an ``office of profit or trust'' within the
meaning of article I, section 9, clause 8 of the
Constitution, according to the Office of Legal Counsel of the
Department of Justice;
Whereas the Office of Legal Counsel of the Department of
Justice opined in 2009 that corporations owned or controlled
by a foreign government are presumptively foreign states
under the Emoluments Clause;
Whereas President-elect Donald J. Trump has a business
network, the Trump Organization, that has financial interests
around the world and negotiates and concludes transactions
with foreign states and entities that are extensions of
foreign states;
Whereas Michael Cohen, an attorney for Donald J. Trump and
the Trump Organization, has stated that the Trump
Organization
[[Page S6554]]
would be placed into a ``blind trust'' managed by Donald
Trump's children, Donald Trump Jr., Ivanka Trump, and Eric
Trump;
Whereas the very nature of a ``blind trust'' is such that
the official will have no control over, will receive no
communications about, and will have no knowledge of the
identity of the specific assets held in the trust, and that
the manager of the trust is independent of the owner, and as
such the arrangement proposed by Mr. Cohen is not a blind
trust;
Whereas Presidents Ronald Reagan, George H. W. Bush,
William J. Clinton, and George W. Bush have set the precedent
of using true blind trusts, in which their holdings were
liquidated and placed in new investments unknown to them by
an independent trustee who managed them free of familial
bias;
Whereas the intermingling of the business of the Trump
Organization and the work of government has the potential to
constitute the foreign corruption so feared by the Founding
Fathers and betray the trust of America's citizens;
Whereas the intent of this resolution is to prevent any
potential misunderstanding or crisis with regards to whether
the actions of Donald J. Trump as President of the United
States will violate the Emoluments Clause of the
Constitution, Federal law, or fundamental principles of
ethics; and
Whereas Congress has an institutional, constitutional
obligation to ensure that the President of the United States
does not violate the Emoluments Clause and is discharging the
obligations of office based on the national interest, not
based on personal interest: Now, therefore, be it
Resolved by the Senate (the House of Representatives
concurring), That Congress--
(1) calls upon President-elect Donald J. Trump to follow
the precedent established by prior presidents and convert his
assets to simple, conflict-free holdings, adopt blind trusts
managed by an independent trustee with no relationship to
Donald J. Trump or his businesses, or take other equivalent
measures, in order to ensure compliance with the Emoluments
Clause of the United States Constitution;
(2) calls upon President-elect Donald J. Trump not to use
the powers or opportunities of his position as President-
elect or President of the United States for any purpose
related to the Trump Organization; and
(3) regards, in the absence of such actions outlined in
paragraph (1) or specific authorization by Congress, dealings
that Donald J. Trump, as President of the United States, may
have through his companies with foreign governments or
entities owned or controlled by foreign governments as
potential violations of the Emoluments Clause.
Mr. CARDIN. Mr. President, I come to the floor to speak on behalf of
a resolution I will submit today on the enrollment clause, which seems
to uphold the values and strictures of one of our Nation's most sacred
documents--the Constitution itself.
The Founding Fathers were clear in their belief that any Federal
officeholder in the United States must never be put in a position where
he or she could be influenced by a foreign governmental actor. Article
1, section 9, clause 8 of the U.S. Constitution, known as the emolument
clause, declares that ``no title of nobility shall be granted by the
United States: And no person holding any office of profit or trust
under them, shall, without the consent of the Congress, accept of any
present, emolument, office, or title, of any kind whatever, from any
king, prince, or foreign state.''
Longstanding precedent has made it plain the President of the United
States, as the head of the executive branch of government, clearly
occupies an office of profit or trust. As such, the emolument clause
clearly applies to and constrains whoever holds the Oval Office of the
Presidency.
For those who claim to value a strict interpretation of the
Constitution and who place upholding the Constitution above partisan
politics, the unambiguous reading and meaning are clear and evident.
Put simply, the American public has a right to know the President of
the United States is acting in their best interest and not because he
or she has received some benefit or gift from a foreign government,
such as Russia or China or any foreign entity. They need to know the
President of the United States is making decisions about potential
trade agreements, sending troops into war, or where we spend America's
great resources is based upon what is in the public interest and not
because it would advance the President's private pecuniary interests.
The Founding Fathers' concerns on this subject were neither abstract
nor baseless. Alexander Hamilton made specific references to these
dangers in the Federalist Papers. While the Constitution was being
debated in America, the Polish Lithuanian Commonwealth was in the
process of being ruthlessly dismembered by her neighbors--Prussia, the
Austrian Empire and Russia.
Poland's neighbors bribed Polish Government officials and succeeded
in paralyzing the state for decades. The Founding Fathers placed the
emoluments clause, an explicit bar on foreign corruption and
interference, within the Constitution so we may avoid Poland's fate.
Happily, the emoluments clause has not been a section of the
Constitution that has had to be of concern to this body, nor is there
voluminous case history detailing its legal interpretation with regard
to the highest offices of the executive branch. This is because every
President, from George Washington to Barack Obama, has taken great
pains to avoid even the appearance of impropriety with regard to their
personal wealth and investments, ensuring that such investments never
interfere with performing their duties as President of the United
States.
That is why, over the past four decades, Presidents Jimmy Carter,
Ronald Reagan, George Herbert Walker Bush, Bill Clinton, and George W.
Bush all had their assets placed into blind trusts while they were
President. President Obama went even further because he wanted to
fulfill his promises of greater transparency. He invested the vast
majority of his funds into U.S. Treasury bonds.
I wish the well-established precedent and practice would make it
unnecessary to introduce and seek to move this resolution today. I wish
President-Elect Trump would be inclined to continue the longstanding
and bipartisan tradition of Presidential traditions.
In September, Mr. Trump said, if he were elected, he would absolutely
sever ties to The Trump Organization. Despite that pledge, it has since
become clear that absent intervention by this body, the President-elect
may not follow the precedents established by his predecessors. In so
doing, he may well--for whatever reason and whatever motive--place
himself and our Constitution in jeopardy.
As a separate and coequal branch of government, the Senate has a duty
and obligation to safeguard our Constitution. It is to the
Constitution, after all, not the person or position, that we swear our
oath of office and to nourish the republican virtues that have allowed
our Nation and government to flourish.
We must do so because following the election, it appears that
President-Elect Trump may have changed his mind about the promises he
made as he sought office. Mr. Trump's lawyers announced The Trump
Organization would be placed into a ``blind trust,'' managed by Don
Trump's older children, Donald Trump, Jr., Ivanka Trump, and Eric
Trump.
Let me be clear, as the gravity of this issue demands absolute
clarity. The financial arrangement described by Mr. Trump and his
lawyers is not a blind trust. It just isn't. We can't allow Mr. Trump
or his lawyers to trick us or the American people into thinking it is
just because they use that term.
A true blind trust, including the ones established by past
Presidents, is an arrangement where the official has no control over,
will receive no communications about, and will have no knowledge of the
identity of the specific assets held in the trust, and the trust's
managers operate independently of the owner.
The arrangement described by Mr. Trump and his lawyers is not
independent. Mr. Trump is well aware of the specific assets held, and
he can receive communications about and take actions to affect the
values of such assets. The idea that President-Elect Trump's children
are or will be truly independent managers is not credible. This is not
a blind trust, and this is not an arrangement that will ensure
compliance with the emoluments clause of the U.S. Constitution.
Mr. Trump has said there is no one like him who has ever become
President of the United States. On that point, he may well be correct.
I am very concerned Mr. Trump may violate the U.S. Constitution on the
day he takes office and, even if it is not his intent, place himself
and our Nation at risk. The purpose of my resolution is to convey to
the President-elect there is still time for him to avoid this
constitutional conflict.
[[Page S6555]]
Some might ask: Why should anyone care? It is not hard to imagine
circumstances in which a foreign governmental actor will want to give
President Trump gifts so they can curry favor with him and hope to
influence his decisions in ways that benefit them when the President's
decisions should benefit the American people--precisely the danger our
Founding Fathers sought to protect against with the emoluments clause.
This is not an esoteric argument about rules that do not affect real
people. The American public has the right to know if President Trump
will put our soldiers, sailors, airmen, and marines in harm's way to
protect America's national security or to protect the latest Trump
Tower in some far-off country. They have the right to know if the trade
agreements negotiated by the new administration will benefit American
businesses, farmers, workers, and consumers or whether they will
benefit some Trump company or hotel.
Donald Trump's business network, The Trump Organization, has
financial interests around the world and negotiates and includes
transactions with foreign states and entities that are extensions of
foreign states.
To give but one example of how bad things can get if Mr. Trump is
allowed to stay connected to his businesses: In Azerbaijan, The Trump
Organization partnered with billionaire Anar Mammadov to build a 33-
story Trump Tower in Baku, the capital of Azerbaijan. Mammadov's father
is Azerbaijan's long-time Transportation Minister and a confidant of
the President of Azerbaijan. There have been allegations this
billionaire's company and the companies he is connected to have
profited from more than $1 billion worth of transportation contracts
related to his father's position in the Transportation Ministry.
A former U.S. Ambassador to Azerbaijan in the 1990s and an adviser to
the Director of National Intelligence under George W. Bush has said of
this deal: ``These are not business people acting on their own--you're
dealing with daddy.''
There are a great many nations, none of which we should emulate,
where the lines between officials of the foreign government and
business entities controlled by that foreign government are blurred or
obliterated. For that reason, the Office of Legal Counsel at the
Department of Justice has stated that corporations owned or controlled
by foreign governments are presumptively foreign states under the
emoluments clause.
We should all be concerned when the President-elect is connected to
an organization that has dealings with countries and entities that
aren't interested in distinguishing between doing business with
President Trump and the profitmaking portion that bears his name. We
run the risk of turning the United States of America, our legal system,
our immigration system, our financial system, our trade agreements, and
our military into subsidiaries of The Trump Organization.
It has already been reported that the Trump International Hotel in
Washington, DC, has been patronized by an increasing number of foreign
dignitaries and diplomats because of Mr. Trump's election. One diplomat
was recorded as saying:
Why wouldn't I stay at his hotel, blocks from the White
House, so I can tell the new president, ``I love your new
hotel''? Isn't it rude to come to his city and say, ``I am
staying at your competitor''?
Likewise, news reports suggest that one day after a phone call
between President-Elect Trump and the President of Argentina, permits
under review for a Trump building in Buenos Aires were suddenly
approved. In China, just days after the Presidential election, Donald
Trump scored a legal victory in a decade-long trademark dispute over
the right to use the Trump name for real estate agent services in
commercial and residential properties in China. The timing of these
actions is interesting, to put it mildly.
The appearance of intermingling between the business of The Trump
Organization and the work of government has already begun. Despite Mr.
Trump's campaign promises to sever ties to The Trump Organization,
where he stated that ``I'll have my children and my executives run the
company and I won't discuss it with them,'' the Trump Presidential
transition team has named Mr. Trump's children, Donald Trump, Jr.,
Ivanka Trump, and Eric Trump, to the transition team's executive
committee--the same children who are supposedly managing The Trump
Organization without discussing it with him. In those positions, they
have the ability to offer counsel as to which personnel are selected to
critical posts in the new Trump administration.
Ivanka Trump reportedly has been present during Mr. Trump's
congratulatory calls with Japan's Prime Minister and the President of
Argentina. Donald Trump, Jr., reportedly met in secret prior to the
election with pro-Russia politicians to discuss Syrian policy. After
the election, President-Elect Trump met with Indian real estate
executives--his partners in developing Trump Towers in India--in which
they allegedly discussed with the Trump family about possible
additional real estate deals.
The list goes on and on. The totality of these engagements and the
potential implications are deeply, deeply disturbing. Yet President-
Elect Trump has done nothing to assure the American people he will put
their interests above the enrichment of himself and his children, and
he will assure, as the Founding Fathers intended, that the President is
not placed in a position where he might be vulnerable to foreign
influence or even the appearance of foreign influence.
While Mr. Trump or his advisers say ``Trust us,'' let us remember
what John Adams said: ``We are a government of laws and not of men.''
It was the enduring wisdom of our Founders to recognize that not all
men are angels, so we place our trust in the Constitution itself, not
in individuals.
Mr. Trump's wealth and business interests must yield to the U.S.
Constitution. Those wide-ranging interests make us realize just how
critical the Constitution's prohibition of foreign gifts is. The
business that the Trump Organization does overseas in places like
Scotland, Argentina, India, and Azerbaijan cannot help but not be far
from Mr. Trump's mind when he discusses matters of policy with foreign
heads of state. This is not because President-Elect Trump is any more
susceptible to these temptations than anyone else but simply because,
as the Founding Fathers recognized, we are humans, not angels.
This insight into human conditions elicited the precise fear
articulated by our Founding Fathers: Leaders who receive gifts and
payments from foreign governments, being human, may not act in the best
interests of the American people. To quote Richard Painter, an expert
in ethics and an adviser to George W. Bush: ``Imagine where we'd be
today if President Franklin Roosevelt had owned apartment buildings in
Frankfurt and Berlin. . . . some of us might be speaking German.''
I am extremely troubled by Mr. Trump's recent remarks on this
subject. On November 22, President-Elect Trump stated, ``The law's
totally on my side, meaning, the president can't have a conflict of
interest.'' In typical Trump sleight of hand, he selectively picks his
own facts as he shows a troubling and callous disregard for our
Constitution and for the duty he owes to the American people.
While the President, Vice President, Members of Congress, and Federal
judges may be granted specific, limited exemptions from conflicts of
interest so that they may act and carry out their duties, that law does
not supersede the Constitution nor, frankly, have anything to do with
the very specific provisions of the emoluments clause preventing
foreign governmental financial influence over the President. That the
President-elect is not doing enough to avoid such conflicts is what
brings me to the floor today and, overall, according to one new poll,
is troubling to nearly 60 percent of the people of this country. The
limited exception to the conflict of interest statute recognizes that
there are certain public officials whose authority to act should not be
held in question. That ability to act does not cure the restrictions in
the emoluments clause of the Constitution.
The Constitution is the ultimate law of the land, not the President.
Mr. Trump apparently does not appreciate the reason that the law on
this issue is untested because previous Presidents have had the wisdom
and personal forbearance not to seek to put this question to the test.
But we have tested the
[[Page S6556]]
unfortunate proposition that ``when the president does it, that means
it is not illegal'' before, and Congress, in service of the
Constitution and the American people, has found that not to be the
case. No one is above the law; no one is above the Constitution,
including the President of the United States.
President-Elect Trump has also tweeted: ``Prior to the election it
was well known that I have interests in properties around the world.''
That is undoubtedly true. But the American people, in voting for a
candidate, cannot--indeed, would not want to--excuse a potential future
violation of the Constitution by that candidate.
President-Elect Trump's attempt to imply that because he won the
election, the Constitution somehow does not apply to him is
irresponsible and disrespectful. It would be disrespectful to the
Constitution; it is truly disrespectful to the American people, who are
trusting their future, their children, their livelihood, and their
safety to decisions Mr. Trump will make once he becomes President.
We must do everything we can to protect our Constitution, our
democracy, and the American people from such recklessness.
The aim of my resolution is straightforward. It takes a strict
interpretation of the plain words of the Constitution and supports the
traditional values and practices adopted by previous Presidents. It
simply calls on President-Elect Trump to follow the precedent
established by prior Presidents and convert his assets to simple,
conflict-free holdings, adopt blind trusts managed by truly independent
trustees with no relationship to Mr. Trump or his businesses, or to
take other, equivalent measures. It calls upon the President-elect to
refrain from using the powers or opportunities of his position for any
purpose related to The Trump Organization. It makes it clear that if
Mr. Trump does not take appropriate actions to sever his ties to his
businesses, Congress will have no choice, given the oath to protect and
defend the Constitution that each and every Member has taken, but to
view any dealings Mr. Trump has through his companies with foreign
governments or entities owned or controlled by foreign governments as a
potential violation of the emoluments clause.
As Mr. Painter observed, ``It should send a clear message to [Mr.
Trump] that he should divest his assets and that [Congress] will regard
dealings with his companies that he owns abroad and any entities owned
by foreign governments as a potential violation of the Emoluments
Clause unless he can prove it was an arm's-length transaction.''
It makes it clear to President-Elect Trump that we care about the
Constitution and our democracy, that the American people really are
watching, and that we will not be distracted from caring about these
things.
I want to close by observing that because of strong feelings and
passions generated by the recent election, some might be tempted to
view this resolution and its aims through a distorted prism of
politics. Nothing could be further from the truth. I strongly support a
smooth transition between the Obama administration and the Trump
administration. I want the Trump administration to have support from
Congress to succeed on behalf of the American people. But when Mr.
Trump deviates from his constitutional responsibilities or recommends
policies that are contrary to the core values of our Nation, Members of
Congress have an obligation to speak out and to act.
I stand here today because I believe Congress has an institutional,
constitutional obligation to ensure that the President of the United
States, whosoever that is, does not violate our Constitution, acts
lawfully, and is discharging the obligations of the office based on the
broad interests of the American people, not his or her own narrow
personal interests.
My resolution is not intended to create a misunderstanding or crisis,
but to avoid one, so that President-Elect Trump can put aside any
appearance of impropriety and devote himself to the good work on behalf
of the American people. We owe it to President-Elect Trump to make very
clear what our expectations are ahead of inauguration day. Why? So that
we can avoid a Constitutional crisis. Such a crisis would not serve in
the best interests of the President, Congress, and the American people.
____________________