[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.

                          ____________________