[Congressional Record Volume 163, Number 2 (Wednesday, January 4, 2017)]
[Senate]
[Pages S62-S65]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       SENATE CONCURRENT RESOLUTION 4--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, Ms. Warren, Mr. Carper, Mrs. 
Murray, Mr. Wyden, Mr. Durbin, Mr. Reed, Ms. Stabenow, Mr. Brown, Mr. 
Casey, Ms. Klobuchar, Mr. Whitehouse, Mr. Udall, Mr. Merkley, Mr. 
Bennet, Mr. Franken, Mr. Coons, Mr. Blumenthal, Ms. Baldwin, Mr. 
Murphy, Ms. Hirono, Mr. Heinrich, Mr. Markey, Mr. Booker, Mr. Peters, 
Mr. Van Hollen, and Mrs. Feinstein) submitted the following concurrent 
resolution; which was referred to the Committee on Homeland Security 
and Governmental Affairs:

                             S. Con. Res. 4

       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

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     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, initially stated that the Trump 
     Organization 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, on November 30, 2016, President-elect Donald J. 
     Trump announced on Twitter that ``I will be holding a major 
     news conference in New York City with my children on December 
     15 to discuss the fact that I will be leaving my great 
     business in total in order to fully focus on running the 
     country in order to MAKE AMERICA GREAT AGAIN!'';
       Whereas, on December 12, 2016, President-elect Donald J. 
     Trump abruptly canceled the planned December 15, 2016 news 
     conference, and has provided no set date for a future 
     announcement;
       Whereas, on December 12, 2016, President-elect Donald J. 
     Trump stated on Twitter, ``Even though I am not mandated by 
     law to do so, I will be leaving my busineses [sic] before 
     January 20th so that I can focus full time on the Presidency. 
     Two of my children, Don and Eric, plus executives, will 
     manage them. No new deals will be done during my term(s) in 
     office'';
       Whereas numerous legal and constitutional experts, 
     including several former White House ethics counsels, have 
     made clear that, notwithstanding the problems inherent in 
     temporarily ceding control of the Trump Organization to his 
     children, such an arrangement, in which the President-elect 
     fails to exit the ownership of his businesses through use of 
     a blind trust or equivalent, will leave the President-elect 
     with a personal financial interest in businesses that collect 
     foreign government payments and benefits, which raises both 
     constitutional and public interest concerns;
       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 continued 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 to 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, it is with a renewed sense of purpose that 
I reintroduce my resolution on the Emoluments Clause. It is a 
resolution intended to uphold the values and strictures of one of our 
most sacred documents. I am referring, of course, to the Constitution, 
the instrument that, in but a short time, President-elect Donald Trump 
will take an oath to preserve, protect, and defend.
  Our Founding Fathers could not have been clearer that any Federal 
office holder of the United States must never be put in a position 
where he or she could be influenced by a foreign governmental actor. It 
was a concern made explicit by Alexander Hamilton's writings in 
Federalist No. 22, in which he noted examples of republics that had 
been ruthlessly dismembered by their hostile neighbors who had 
paralyzed the victim republic by bribing its officers and officials.
  The Founding Fathers addressed this grave concern by placing the 
Emoluments Clause within the Constitution as an explicit bar on foreign 
corruption and interference. Article I, section 9, clause 8 of the 
United States Constitution 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 that the President of the 
United States, as the head of the executive branch of the government, 
clearly occupies an ``office of profit or trust''. As such, the 
Emoluments Clause clearly applies to and constrains whomever holds the 
office of the Presidency.
  Past American presidents have recognized the danger of foreign 
corruption and interference, or merely the perception of corruption and 
interference, and have accordingly 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. Presidents 
Jimmy Carter, Ronald Reagan, George Herbert Walker Bush, Bill Clinton, 
and George W. Bush all had their assets placed into blind trust while 
they were President. To fulfill his promises of greater government 
transparency, President Obama went even further and invested the vast 
majority of his funds in U.S. Treasury bonds.
  The President-elect has claimed he will ``absolutely sever'' his ties 
to the Trump Organization, which has financial interests around the 
world and negotiates and concludes transactions with foreign states, as 
well as entities that are extensions of foreign states. We have a 
constitutional duty to ensure that he does. It is easy to imagine 
circumstances in which a foreign government will want to give President 
Trump a personal gift through his businesses with the intent to curry 
favor with him and seek to influence his decisions in ways that benefit 
them, instead of 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. Put simply, the American public has a right to know that the 
President of the United States is always acting in their best interest, 
and not take the risk that his actions are influenced by some benefit 
or gift from a foreign government like Russia or China. The citizens of 
this country need to know that when the President of the United States 
is making decisions about potential trade agreements, sending troops 
into war, or spending America's great resources, those actions are 
motivated by the public interest, and not because they might advance or 
harm

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the President's private pecuniary interests.
  We should be concerned when the President-elect is connected to an 
organization that has dealings with countries and entities that are not 
interested in distinguishing between doing business with President 
Trump and the profit-making organization that bears his name. The 
President-elect's failure thus far to dispose of his business interests 
in a comprehensive fashion has left this door wide open, and we are 
already seeing indications that foreign companies and businesses are 
beginning to take advantage. Kuwait's National Day event, which has 
traditionally been held at the Four Seasons in Washington, D.C., was 
moved to the Trump International Hotel, allegedly because of pressure--
or perhaps merely a suggestion--from the President-elect's associates. 
Similarly, Bahrain has chosen to schedule an event to take place at the 
Trump International Hotel.
  News reports suggest that one day after a phone call between 
President-elect Trump and the President of Argentina, permits under 
review for the 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.
  I sincerely regret the necessity of reintroducing this resolution. 
Just after Thanksgiving, when President-elect Trump held a press 
conference to state that on December 15, 2016, he would make an 
announcement about his future with the Trump Organization, I publicly 
said how encouraged I was to see the President-elect's positive 
response. When I first introduced this resolution, my intent was to 
create an opportunity for the President-elect to act and remove this as 
an issue, so that he could put aside any appearance of impropriety and 
devote himself to good work on behalf of the American people. That is 
why I was disappointed when Mr. Trump abruptly canceled his December 15 
announcement--and, as of today, he has not yet rescheduled it. This 
issue is far too critical to kick the can down the road, or to ignore, 
before an incipient violation of the Constitution becomes an actual 
violation.
  Even before Mr. Trump's cancellation of his December 15 announcement, 
I was deeply concerned by statements he and his lawyers made with 
regard to the disposition of his numerous business interests. Mr. 
Trump's lawyers had initially announced that the Trump Organization 
would be placed into a ``blind trust'' managed by Donald Trump's older 
children. That arrangement is, unfortunately, by its terms the complete 
opposite of an actual blind trust. An actual blind trust is an 
arrangement which the official has no control over, will receive no 
communications about, and will have no knowledge of the identity of the 
specific assets being held, and in which the trust's manager operates 
independently of the owner.
  Around the same time President-elect Trump cancelled his December 
15th announcement, he tweeted another idea for disposition of his 
businesses, stating that ``[t]wo of my children, Don and Eric, plus 
executives, will manage them. No new deals will be done during my 
term(s) in office''. Let me be absolutely clear: the arrangement 
tweeted by Mr. Trump is not sufficient and is hardly independent. Mr. 
Trump would be well-aware of the specific assets held, and he could 
receive communications about and take actions to affect the value of 
those assets. The idea that President-elect Trump's children, who are 
listed as members of his transition team and have already been present 
at meetings or phone calls with foreign leaders, can ever be truly 
``independent managers'' is simply not a credible resolution of this 
concern.
  This inadequate suggested arrangement is not a blind trust and will 
not ensure compliance with the Emoluments Clause of the United States 
Constitution. Indeed, numerous legal and constitutional experts, 
including Richard Painter, a former adviser to George W. Bush, have 
made clear that such an arrangement will leave the President-elect with 
a personal financial interest in businesses that collect foreign 
government payments and benefits. The notion that the American people 
should be satisfied by an unbinding promise that no new deals will 
be pursued--a promise that does not define what constitutes a ``deal'' 
and which can be reneged on at any time--does not pass the laugh test.

  I must admit, I have also been quite disturbed and disappointed by 
the recent excuses and suggestions by surrogate speakers and supporters 
of the President-elect as to why no action need be taken and, indeed, 
by statements the President-elect has made himself. President-elect 
Trump has tweeted, [p]rior to the election it was well known that I 
have interests in properties all over the world.'' This is undoubtedly 
true. But the American people, in voting for a candidate, cannot--and, 
in fact, would not--want to excuse a potential future violation of the 
Constitution by that candidate. Indeed, I would say that President-
elect Trump has this idea backwards. Prior to the election, he was well 
aware of the fact that he had interests in unique properties all over 
the world. Since the President-elect has referred to himself as ``a 
constitutionalist,'' he must have known of the importance of complying 
with the Constitution by severing his foreign business connections in 
advance of his inauguration, which makes his continued failure and 
delay on this front all the more inexplicable.
  On November 22nd, President-elect Trump stated, ``The law's totally 
on my side, meaning, the president can't have a conflict of interest.'' 
This regrettable statement selectively picks facts and shows a 
troubling disregard for the Constitution and for the duties owed 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, which are intended to prevent foreign governmental 
financial influence over the President.
  Even as some of the President-elect's most trusted surrogates have 
acknowledged that the potential ethics challenges facing President-
elect Trump are ``a very real problem,'' they have persisted in arguing 
that Mr. Trump is somehow exempt from constitutional strictures, and 
even from the temptation of corruption itself, by virtue of his great 
wealth. For example, former Speaker Gingrich has claimed ``that this is 
a new situation we've never seen before, and the rules [that] were 
written for people who were dramatically less successful literally do 
not work,'' while Mr. Trump's leading candidate to head the 
administration's Council of Economic Advisors has claimed that 
``[w]ealthy folks have no need to steal or engage in corruption.'' 
Really? That is a transparently false idea that one does not have to 
look very far to disprove. We need only glance at the countries where 
the Trump Organization has done business--places like Russia, 
Azerbaijan, Argentina, and Nigeria--to find numerous examples of 
already-wealthy government officials who have used their positions to 
lie, cheat, extort, and further enrich themselves and their families at 
the expense of the people they are supposed to be serving.
  It was the enduring wisdom of our Founders to recognize that America 
is not magically immune from the corruption problems in other 
countries, and that not all men are angels. This is why we place our 
trust in the Constitution, not in individuals. A man with more wealth 
and extensive foreign holdings than prior presidents is, by an order of 
magnitude, more vulnerable to foreign corruption and interference than 
any president before him. The Emoluments Clause has greater bearing on 
Mr. Trump's presidency than his predecessors, not less.
  No man can gain such wealth and power that he outgrows the limits of 
our Constitution. John Adams said it best: ``We are a government of 
laws, and not of men.'' No matter our political or partisan sympathies, 
we all recognize that the Constitution is the law of the land, and that 
when the needs and ambitions of any man conflicts with the 
Constitution, the Constitution must win out.
  It has also been suggested by some of Donald Trump's supporters that 
the

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Emoluments Clause does not actually apply to the office of the 
Presidency. Not only does this conflict with longstanding understanding 
of the Emoluments Clause in the Executive Branch, it contravenes both 
the strict interpretation of the plain words of the Constitution, as 
well as the traditional values and practices adopted by previous 
presidents.
  To get around the ethics challenges facing Mr. Trump, it has been 
suggested by the President-elect's supporters that a panel of five 
``experts'' regularly monitor the Trump Organization businesses and 
tell the President ``don't go over these bounds''. It has even been 
suggested that the President-elect can simply sidestep ethics issues 
that clearly violate the law by pardoning advisors ``if anyone finds 
them to have behaved against the rules''. These 'ideas' are non-
starters that cut dangerously against the plain intent of the 
Emoluments Clause. I am afraid they show a disregard for the values of 
our Constitution.
  The solution to this problem is simple, not complex, and is set forth 
by my resolution: President-elect Trump has only to follow the 
precedents 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. This solution also 
has the benefit of having been successfully implemented by every modem 
president before Mr. Trump.
  This resolution and its aims should not be viewed through the 
distorting prism of politics. I want the Trump administration to have 
the support from Congress to succeed on behalf of the American people. 
Nevertheless, I believe that Congress has an institutional, 
constitutional obligation to ensure that the President of the United 
States, whoever that person may be, does not violate our Constitution, 
acts lawfully, and is discharging the obligations of the office based 
on the broad interests of the American people and not his or her own 
narrow, personal interests.
  Despite the late hour--just days before the inauguration--it is still 
possible for President-elect Trump to live up to the values of the 
Constitution, give the American people the transparency they deserve, 
and completely sever his relationship with the Trump Organization 
before he takes the oath of office on January 20, 2017. To do so would 
avoid a constitutional crisis that would not serve the best interests 
of the President, Congress, or the American people. Therefore, I ask 
for prompt, bipartisan support to advance this vital resolution.

                          ____________________