President-Elect Trump has delighted many critics by announcing on Twitter, the medium he most frequently uses to communicate with the public, that he will be separating out his business interests from the presidency.
Trump had been heavily attacked for promoting his businesses, and those of family members, during his time as President-Elect.
The Emoluments Clause in the Constitution bars any President from deriving financial advantage for their personal businesses, or for themselves. Democrats and democratic lawyers, as well as a former White House counsel for President Bush, had warned that Trump could be impeached the second he took the oath of office if he had not separated himself from his business interests. Trump does not have to liquidate his holdings, but would, commentators say, have to turn over control to a completely independent manager and fully separate himself from the management of those entities.
Trump has yet to provide any detail on how that separation would be executed. Nonetheless, the announcement bodes well for the confirmation hearings of Attorney-General Designate Senator Jeff Sessions, who would undoubtedly have been asked what advice he gave the President-Elect on the Emoluments Clause.
Some scholars believe that total divestment, and not merely a blind trust, is required. Many remarked that Trump appointing his children to run his companies would not do in terms of independence in their management.
It indicates that Trump—not a professional politician—is being surrounded during the transition with advisers who can inform him of his constitutional duties, and the penalties for violating the constitution, including removal from office. Trump tweeted:
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 [sic] in total in order to fully focus on running the country in order to MAKE AMERICA GREAT AGAIN! While I am not mandated to do this under the law, I feel it is visually [sic] important, as President, to in no way have a conflict of interest with my various businesses.. [sic] Hence, legal documents are being crafted which take me completely out of business operations. The Presidency is a far more important task!
Trump is not correct in his assertion that he is “not mandated to do this under the law,” if one considers the Constitution to fall under the umbrella of “law.”
This false assertion may have been designed to prevent legal attacks on the many violations of the Emoluments Clause that scholars believe have already occurred if Trump maintains his businesses after he is sworn in. Among them are a conference in Turkey that invited diplomats to use Trump hotels in order to win favor with the new President; Ivanka Trump attending, without appointment or security clearance, a meeting with the Japanese Prime Minster; and wearing a bracelet from her own jewelry line during a “60 Minutes” interview that received widespread media attention;
“Ivanka Trump wearing her favorite bangle from the Metropolis Collection on ‘60 Minutes,'” the email read.
and Trump reportedly asking the President of Argentina, on a call he received as President-Elect, to remove obstacles for a permit to one of his buildings. This latter accusation was reported by a respected journalist in the Argentine paper La Naçion, and although denied by Trump and the Argentine President, speculation has been rife that almost every foreign government has a recording of the call, since Trump has placed calls on insecure phone lines from Trump Tower. Furthermore, Trump’s business partner on the Tower was present during the election-night party, and there is widespread reporting speculating that the La Naçion report was correct.
Hope Hicks, a spokeswoman for Mr. Trump’s transition office, at first disputed that Mr. Trump had raised the subject of wind farms with Mr. Farage, suggesting that participants in the conversation “denied this took place.” However, when pressed with the fact that one of the meeting’s attendees, Mr. Wigmore, had described the conversation in detail, she declined repeated requests to comment.
Trump met with a minor UK politician, the former leader of a small UK party, UKIP, Nigel Farage, at Trump Tower. (Farage is a friend and protegé of Trump’s advisor Steve Bannon.) The President-Elect subsequently proposed, to wide ridicule and a rebuff from the British Government, that Farage be appointed as Ambassador to the United States (a position long filled by a diplomat). Days after the meeting, it was announced in London that UK authorities would follow up on a fraud inquiry instituted by the EU Parliament, that Farage’s party had misspent EU funds. The UK’s Electoral Commission announced that this inquiry may possibly lead to criminal charges for officials in the party under UK electoral law.
The Express, a British tabloid, reported based on an interview with one of the participants that the President-Elect asked Farage to ensure that no wind turbines were built in Scotland that could spoil the views of his golf course in that country. The anecdote seems improbable, as Farage has no authority in Scotland whatsoever, and is not even a Member of Parliament in the UK. Farage has failed eight times in a row to win a seat in Parliament, and the last General Election halved the number of UKIP MPs from two to a mere one. He is, however, an elected politician for the European Parliament, where he represents the South-East of England—about as far from Scotland as one can geographically get.
Nonetheless, Trump appears to have been deceived by the spin of his senior adviser Steve Bannon about Farage being a politician of significance in his home country. Fox News has regularly described Farage as “leader of Brexit,” when in fact, Farage lost the battle (supervised by the Electoral Commission now investigating his party for fraud) to be designated the leader of the “Leave” side of the referendum. Farage conceded defeat on Brexit minutes after the polls closed and appeared to have no idea whatsoever about what was happening at vote counts. Newsweek reported:
Nigel Farage… appeared to concede defeat…just minutes after polls closed on Thursday night.
He issued a statement just minutes after 10pm, the time of the poll closure, in which he said that it “looks like Remain will edge it”
While Farage appeared to throw in the towel, the official result will not be announced until at least 7am on Friday morning
If we assume that Trump believed the TV captions on Farage, which as a courtesy often ask a guest how they wish to be described, the request to “fix” wind turbines so they do not affect Trump’s golf course in Scotland makes more sense. This is a clear conflict of interest.
As the New York Times reported:
When President-elect Donald J. Trump met with the British politician Nigel Farage in recent days, he encouraged Mr. Farage and his entourage to oppose the kind of offshore wind farms that Mr. Trump believes will mar the pristine view from one of his two Scottish golf courses, according to one person present.
The meeting, held shortly after the presidential election, raises new questions about Mr. Trump’s willingness to use the power of the presidency to advance his business interests.
The Farage incident stands out because while Hope Hicks, Trump’s spokeswoman, denied that Trump had asked for this material favor for a business during the meeting, the President-Elect subsequently admitted to the New York Times that he had done so. Trump has not himself admitted asking any other favors for his businesses or financial affairs during his stint as President-Elect.
The Farage meeting could have been used by Democrats in any effort to impeach Trump under the Emoluments Clause should he retain any active interest in his golf course in Scotland after being sworn in.
The President-Elect has no Constitutional obligations—or privilege—in regards to the office of the Presidency. He can, for example, be arrested and charged with a crime, whereas a President must be impeached by Congress as he or she has sovereign immunity during his or her term of office. Equally, the restrictions of the Emoluments Clause of the Constitution do not apply to the President-Elect. Trump’s announcement may therefore be a wise measure that can inoculate him from impeachment attempts, using the Emoluments Clause, after he is sworn in. Laurence Tribe, a Democrat and Professor of Constitutional Law at Harvard, objected to the date of the press conference, arguing that Electors who make up the Electoral College could not assess if the safeguards were sufficient before they formally voted Trump into the Presidency.
2/by Dec 19 how meaningful the separation will be & whether it adequately addresses the Emoluments Clause problem
— Laurence Tribe (@tribelaw) November 30, 2016