[Congressional Record Volume 163, Number 143 (Wednesday, September 6, 2017)]
[Senate]
[Pages S5011-S5012]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 803. Mr. CARDIN submitted an amendment intended to be proposed by
him to the bill H.R. 2810, to authorize appropriations for fiscal year
2018 for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. __. EMOLUMENT CLAUSE VIOLATIONS.
(a) Findings.--Congress makes the following findings:
(1) 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.''.
(2) 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''.
(3) 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.''.
(4) 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.
(5) 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.
(6) President Donald J. Trump has a business network, the
Trump Organization, that
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has financial interests around the world and negotiates and
concludes transactions with foreign states and entities that
are extensions of foreign states.
(7) The very nature of a ``blind trust'', as defined by
former White House Ethics Counsels Richard Painter and Norm
Eisen in an opinion piece in the Washington Post entitled,
``Trump's `blind trust' is neither blind nor trustworthy'',
dated November 15, 2016, and the Congressional Research
Service report ``The Use of Blind Trusts By Federal
Officials'', 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.
(8) On January 11, 2017, President-elect Donald J. Trump
and his lawyers held a press conference to announce that he
would be placing his assets in a trust and turning over
management of the Trump Organization to his two adult sons,
Donald Trump, Jr., and Eric Trump, and executive Allen
Weisselberg; that there will be no communication with
President Trump and no new overseas business deals; that an
ethics advisor will be appointed to the management team to
fully vet any new proposed domestic deals; and that the Trump
Organization will donate any profits from any foreign
governments that use Trump hotels to the Department of the
Treasury.
(9) This arrangement is not sufficient because of its utter
lack of independent accountability and transparency, such
that the director of the Office of Government Ethics has
stated that ``[t]he plan the [President] has announced
doesn't meet the standards that the best of his nominees are
meeting and that every president in the last four decades
have met''.
(10) The director of the Office of Government Ethics has
characterized the promise to limit President Trump's direct
communication about the Trump Organization as ``wholly
inadequate'' because President Trump would still be well-
aware of the specific assets held and could receive
communications about and take actions to affect the value of
those assets, especially when those running the business are
his own children, whom Trump will see often.
(11) The promise that no new overseas business deals will
be agreed to by the Trump Organization fails to explain what
constitutes a deal, and whether expansions to existing
properties, licensing or permitting fee agreements, or loans
from foreign banks like Deutsche Bank AG would qualify as
``deals''.
(12) The promise that the Trump Organization will donate
profits from any foreign governments that use Trump hotels
does not include Trump golf courses and other properties;
does not explain whether the promise covers foreign
government officials who register under their own names or
third-party vendors hired by foreign governments to do
business with the Trump Organization; does not explain
whether foreign organizations signing tenant agreements with
domestic Trump businesses, such as the Industrial and
Commercial Bank of China, which is Trump Tower's biggest
tenant, qualifies; does not define what constitutes
``profits''; does not address the fact that revenue received
by a failing business still provides value to that business
even if there is no net profit; and has no mechanism for the
public to verify that the promise is being fulfilled.
(13) President Trump's lawyer claimed that ``it would be
impossible to find an institutional trustee that would be
competent to run the Trump Organization'' when there are
dozens if not hundreds of highly qualified trustees who
handle complicated business situations like the disposition
of the Trump Organization.
(14) At the January 11, 2017, press conference, President-
elect Trump's lawyer implied that the only reason people have
raised the Emoluments Clause is over ``routine business
transactions like paying for hotel rooms'' and claimed that
``[p]aying for a hotel room is not a gift or a present, and
it has nothing to do with an office. It's not an
emolument.''.
(15) A comprehensive study of the Emoluments Clause written
by Richard Painter, Norman Eisen, and Lawrence Tribe, two of
whom are former ethics counsels to past Presidents, has
concluded that ``since emoluments are properly defined as
including `profit' from any employment, as well as `salary,'
it is clear that even remuneration fairly earned in commerce
can qualify''.
(16) Numerous legal and constitutional experts, including
several former White House ethics counsels, have also made
clear that the arrangement announced on January 11, 2017, in
which the President fails to exit the ownership of his
businesses through use of a blind trust or equivalent, will
leave the President with a personal financial interest in
businesses that collect foreign government payments and
benefits, which raises both constitutional and public
interest concerns.
(17) 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.
(18) 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.
(19) On January 20, 2017, President Trump swore an oath to
preserve, protect, and defend the Constitution of the United
States, the rights, privileges and limitations of which are
defined and guarded by the Federal judiciary of the United
States.
(20) Congress has an institutional, constitutional
obligation to ensure that the President of the United States
does not violate the Emoluments Clause of the Constitution,
Federal law, or fundamental principles of ethics, and is
discharging the obligations of office based on the national
interest, not based on personal interest.
(b) Sense of Congress.--Congress--
(1) finds the promised actions outlined by President Donald
J. Trump at his January 11, 2017, press conference wholly
inadequate and insufficient to ensure compliance with the
Emoluments Clause of the United States Constitution;
(2) calls upon President 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;
(3) calls upon President Trump not to use the powers or
opportunities of his position as President of the United
States for any purpose related to the Trump Organization; and
(4) regards, in the absence of express affirmative
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.
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