[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.
____________________