Constitutional lawyers and White House ethics counsellors from Democratic and Republican administrations have warned Donald Trump his presidency might be blocked by the electoral college if he does not give up ownership of at least some of his business empire.
“The brand is certainly a hotter brand than it was before,” Donald Trump told the New York Times on Wednesday, and his election victory buzz does indeed seem to have been good for business.
Since the surprise outcome of the 8 November vote, foreign diplomats have been flocking to the newest Trump hotel in Washington to hear sales pitches about the business and vie to book their delegations into its rooms overlooking Pennsylvania Avenue for the inauguration on 20 January.
Trump, meanwhile, used a meeting with a delegation of Brexit activists including his closest British ally, Nigel Farage, to urge them to oppose wind farms which he felt would spoil the view from one of his Scottish golf courses. He also took time out from selecting cabinet officials to meet his Indian business partners and pose for pictures with them, while the Philippines government announced it was appointing his business partner in Manila as its next ambassador to Washington.
A day after a phone conversation between President-elect Trump and Argentinian president Mauricio Macri, Trump’s Argentinian associate – who was reported to have organised the call – confidently predicted that construction would start next year on the planned Trump Tower Buenos Aires, to be completed by 2020.
The associate, Felipe Yaryura, seemed supremely confident that the zoning restrictions that had stalled the project for years would soon be swept away.
In his interview at the New York Times, Trump insisted he no longer cared about his business interests.
“My company is so unimportant to me relative to what I’m doing, ’cause I don’t need money, I don’t need anything,” he said. “The only thing that matters to me is running our country.”
Yet much of what he has said and done since winning the election suggests that Trump comes to the presidency in the spirit of a tycoon making a new acquisition, overseeing the merger of Trump Inc and America Inc – a merger in which it is far from clear which would be the senior partner.
“It clearly degrades the presidency,” said Ian Bremmer, a political scientist and president of the Eurasia Group, a global political risk research and consulting firm.
“It is going to undermine the legitimacy of the US around the world. Soft power has been about being able to project values. That already took a hit. It really comes to an end with this election.”
‘There’s never been a case like this’
Although the president-elect claims to have handed the day-to-day running of the Trump Organization to some of his children, he has so far retained his ownership stake and those same children are sitting in on his meetings with foreign leaders. Ivanka Trump, for example, was in the room during the president-elect’s first meeting with a foreign leader, Japanese prime minister Shinzo Abe.
A few moments after expressing indifference to the fate of his business, Trump claimed: “In theory, I could run my business perfectly, and then run the country perfectly.
“And there’s never been a case like this where somebody’s had, like, if you look at other people of wealth, they didn’t have this kind of asset and this kind of wealth, frankly. It’s just a different thing.”
The US has certainly never had a commander-in-chief like Trump. When the constitution was written, the founding fathers wrote the rules so that people like themselves, whom they expected to fill the presidency, could do so without having to sell off plantations or slaves.
The president is exempt from conflict-of-interest laws that constrain other office holders. The discovery of this loophole seems to have surprised and delighted Trump.
“As far as the potential conflict of interests,” Trump said, “the law is totally on my side, meaning, the president can’t have a conflict of interest.”
The remarks were reminiscent, for presidential historians at least, of an earlier president who claimed that “when the president does it, that means it is not illegal”.
It was an interpretation of executive power that did not work out well for the US, nor for the president in question, Richard Nixon.
Constitutional lawyers are now warning that Trump’s presidency is in danger of going the same way as Nixon’s before it even gets started. Some say that unless Trump takes urgent steps to fully divest himself from his business interests, he might not even enter the Oval Office as president.
Trump seems to have received only a partial legal briefing on his exposure. Although the conflict-of-interest clauses do have a loophole for presidents, there is no such loophole for the “emoluments clause”, Article I, Section 9 of the constitution, which prohibits public officials from taking payments “of any kind whatever from any king, prince or foreign state”.
“Trump was totally wrong when he said the conflict of interest doesn’t apply to me,” said Norman Eisen, a former ethics counsellor to the Obama administration. “It shows he doesn’t know the constitution.
“The most fundamental conflict clause in the US constitution is the prohibition on emoluments on payments, presents or other things of value being given to American political officials including the president.”
Eisen, now a fellow at the Brookings Institution, added: “Because of [Trump’s] international investments he gets these payments, presents and things of value and he’ll be in violation of the constitution by the moment he takes the oath of office.”
Faithless electors?
Before Trump can even take that oath, he will have to be elected by the electoral college, another legacy of the founding fathers.
Under the constitution, this year on 8 November Americans chose electors, who are usually party officials, to represent their states in the electoral college. It is now up to those 538 electors to choose the president, when the college votes on 19 December. “Faithless electors” have in the past gone against the wishes of those who chose them, but never in such numbers as to change the outcome of an election.
The electors are under more pressure than usual because although Trump won the majority of seats in the electoral college, he lost the nationwide popular vote to Hillary Clinton by 2m ballots. Some legal experts argue that the electoral college cannot approve a candidate like Trump, who does not fulfil the basic legal requirements to be president.
Harvard constitutional law professor Laurence Tribe said in an email that the “electors who are to cast their votes for president on 19 December not as automatons but in light of constitutional constraints and principles cannot in good conscience vote for Donald Trump as president of the United States unless he fully divests himself of economic interests dependent on the fortunes, for good or ill, of the private Trump empire”.
That view is not restricted to academics and Democrats. Richard Painter, George W Bush’s chief ethics counsel, agrees that without a major reconfiguration of the Trump Organization, the president-elect is heading for a constitutional collision with the electoral college.
“The important thing for the electoral college is to ensure that he technically complies with the constitution,” Painter told the Observer. “This is just as important as the birth certificate. He should not be currently on the payroll of foreign governments.
“So he’ll have to provide assurance to the electoral college that he’s not himself going to be getting money from foreign governments that would violate the emoluments clause.”
It is implausible that Trump and his lawyers could offer such assurances without completely severing his links with his business operation. His empire has been built in many countries where the line between public and private ownership is thin and blurred. According to a count by the Washington Post, at least 111 Trump companies have done business in 18 countries in South America, Asia and the Middle East.
There are two Trump Towers in Turkey. During the campaign, Trump registered eight companies in Saudi Arabia, according to the Post. There is a hotel being built under the Trump name in Baku, the capital of Azerbaijan. All these countries have authoritarian leaders, whom Trump has praised in recent years.
Over and above these entanglements, Trump has diplomats on foreign government expenses rushing to check into his hotels; he also has loans from state-owned banks. It is impossible to gauge the extent of his reliance on foreign governments without full disclosure of his business dealings and the publication of his tax returns, which he has thus far resisted.
Painter said the president-elect’s lawyers could perhaps construct a technical fix that ensured that any income from foreign governments was channelled into a separate corporation, under the ownership of his children.
Such a legal tweak might get Trump past the electoral college and into the Oval Office on schedule on 20 January, but it is hard to imagine it would dispel the cloud of suspicion that would hang over a Trump White House.
“It is catastrophic because you have a man coming to the presidency with a vast network of business interests, domestic and international, that will conflict, clash, collide, with his obligations to pursue the public interest,” Eisen said.
“Foreign policy is where conflict of interest, between the public and private interest, is sharpest because he has these projects all over the world. We’ll never know when he favours an ally or opposes an adversary whether he’s doing it for the sake of America’s national interest or his pocket book.”
‘It is absolutely contradictory’
Eisen and Painter called on the Trump transition team to take urgent steps to address the problem, before it triggers a constitutional crisis. They recommended he sell all his business holdings and put the proceeds in a blind trust, the composition of which would remain unknown to him, as his predecessors have done for the past four decades. Painter offered his advice to the Trump circle as a fellow Republican, but has not received any response.
At his meeting with the New York Times, Trump said he was looking at changes he might make, but seemed very reluctant to sell off his empire.
“That’s a very hard thing to do … because I have real estate. I have real estate all over the world, which now people are understanding,” he said. “It really is big, it’s diverse, it’s all over the world. It’s a great company with great assets.
“I think that, you know, selling real estate isn’t like selling stock. Selling real estate is much different, it’s in a much different world.”
Trump did not make clear why owning property made it harder to sell his stake but his resistance to such a move was apparent.
“His view is that the voters know about this and and they are OK with it,” said Robert Weissman, president of the Public Citizen watchdog group.
“But it is absolutely contradictory to his core message he was going to sweep away the corruption in Washington and all the deal-making.”
In 2020, voters will get an opportunity to decide whether Trump has delivered on that promise. Weissman thinks the threat of impeachment before then is remote, as that is a decision of the House of Representatives, where there is a solid Republican majority.
The GOP majority is much slimmer in the Senate, however, and there Trump has many enemies in Republican ranks. Although the Senate cannot initiate impeachment, it can hold hearings, summon witnesses and demand documents. It could turn a Trump presidency into one long financial scandal.
“He will not be able to get away with it for very long,” Eisen said. “This is a recipe for scandal. This has happened with every president, Democrat like Bill Clinton and Republican like Richard Nixon.
“When you get into a scandal, your old friends melt away. It’s an incredibly perilous situation.”
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