From John Dean (Nixon administration White House counsel):
The following article is by Richard W. Painter in the New York Times. Painter was the chief White House ethics lawyer from 2005 to 2007 (during the administration of Bush II).
On Wednesday, President-elect Donald J. Trump finally announced his plans to “separate” himself from his global business empire when he assumes the presidency next Friday. His plans were announced in the midst of worrisome news around the world, including renewed terrorist attacks in the Middle East, rising tensions in the South China Sea and Mr. Trump’s belated admission that the Russian government had conducted espionage activities inside the United States.
This was his moment to announce a plan to separate himself from ownership interest in his global business empire. It was his final chance to disclose the identity of, and unwind his relationships with, his business partners and creditors around the globe.
The plan Mr. Trump announced on Wednesday does none of these things. As expected, he continues to refuse to release his tax returns, even though many of his cabinet nominees will have to disclose theirs in order to get confirmed by senators skeptical of, among other things, foreign business entanglements. He also did not announce a divestment of ownership interest in his businesses, even though this is a step that his own cabinet appointees will have to take in order to comply with a federal conflict of interest law.
Instead, Mr. Trump will simply turn management of the businesses over to a trustee chosen by him, and to two of his sons, Donald Jr. and Eric. This is not a separation at all, and from a conflict of interest vantage point, it won’t work.
First, if Mr. Trump continues to own the businesses, he will continue to receive payments they earn from dealings with foreign governments. Most if not all of these payments will violate the Emoluments Clause of the Constitution, which expressly forbids anyone in public office from receiving any gifts, salary or profits of any kind from transactions with foreign governments without the consent of Congress. Apart from exceptions already set forth in the Foreign Gifts and Decorations Act, Congress, even though now controlled by Republicans, has shown no appetite for making further exceptions.
Absent such consent from Congress, President Trump will be in violation of the Constitution as of next Friday with respect to, among other things, loans from foreign-government-controlled banks, leases of Trump office space to foreign-government-controlled companies, foreign governments and diplomats renting rooms in Trump hotels and any investments that are made alongside foreign sovereign wealth funds. The plan announced on Wednesday does nothing to fix this problem because if President Trump still owns the businesses, or he is the beneficiary of a trust that owns the businesses, he receives the economic benefit — the “emolument” — from all of these transactions.
The only concession that Mr. Trump made on this issue in his news conference was a proposal to donate “profits” made by his hotels from foreign governments to the United States government. He failed to address the fact that foreign government money likely permeates his entire business empire, not just the hotels, and that he has no plan to stop receiving these payments that will become unconstitutional at noon next Friday.
Second, apart from a promise not to enter into any “new” deals outside the United States, Mr. Trump’s plan does nothing to fix the serious conflicts of interest and global security threats posed by his existing business relationships with politicians and politically connected businessmen around the world. He also does not address his ownership and licensing rights in properties — including the use of the Trump name. Shockingly, the president-elect did not even mention the grave risk posed to the people who live and work in these buildings, which are likely to be prime terrorist targets because they carry the name of the president of the United States. Taking his name off these buildings would greatly reduce this security risk, but that would cost Mr. Trump his licensing profits, so he won’t do it. Who will pay for increased security for these buildings — foreign governments, the United States government or the Trump organization — is an unanswered question.
Third, and perhaps most dangerous to our national security, our president could be beholden, and indebted, to undisclosed lenders and other investors around the world. These relationships are not revealed on Mr. Trump’s financial disclosure form, which lists only his personal liabilities, and he won’t release his tax returns, which would tell us a lot more. If Mr. Trump’s businesses were to be sold, these entanglements would go away, but Mr. Trump won’t sell.
Imagine where we would have been in December 1941 if President Franklin D. Roosevelt had owned office towers in Berlin and Frankfurt, licensing agreements in Munich and Tokyo and a hotel in the Philippines. The world today is still a dangerous place, and we are entitled to a president who can protect the interests of our country free of personal financial conflicts of interest. What we heard on Wednesday did nothing to reassure Americans in the face of clear evidence that Mr. Trump will take office on Jan. 20 with more conflicts of interest than any president in history.