Friday evening, the Washington Post reported that about 100 foreign diplomats gathered at President-elect Donald Trump’s hotel in Washington, DC to “to sip Trump-branded champagne, dine on sliders and hear a sales pitch about the U.S. president-elect’s newest hotel.” The tour included a look at the hotel’s $20,000 a night “town house” suite. The Post also quoted some of the diplomats saying they intended to stay at the hotel in order to ingratiate themselves to the incoming president.
What? You didn’t know the guy had hotels? Of course you did. But you assumed that he would at least have the good sense not to engage in the transparent conflict of interest of using them as an opportunity for foreign governments to curry his favor.
Donald Trump has decided not to put his businesses in a blind trust, a mechanism by which his assets would be managed by people with no direct connection to the President. Instead, he has asked his children to continue to manage the global operation, which raises the possibility of an appearance of a conflict of interest.
Appearance? That’s generous. But isn’t there a rule that says a president has to divest himself of active business ventures with which the exercise of his vast powers will necessarily cause conflicts? Well, no. But kinda yes.
Richard Painter, a University of Minnesota law professor who previously served as chief ethics counsel to President George W. Bush, says that Trump’s efforts to do business with these diplomats is at odds with a provision of the Constitution intended to prevent foreign states from effectively buying influence with federal officials.
The Constitution’s “Emoluments Clause,” provides that “no person holding any office of profit or trust under” the United States “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.”
The diplomats’ efforts in seek [sic] Trump’s favor by staying in his hotel “looks like a gift.”
And the diplomats aren’t ashamed of it. Why should they be? Their job is to gain whatever influence they can to benefit their country, and if staying at a Trump Hotel, so they can tell President-Elect Donald that they loved the curtains, though there was no sake in the minibar, helps, they would be foolish not to book it.
For those who smell the faint whiff of familiarity here, this is what Plunkitt called “honest graft.” They have to stay somewhere, so why not in the old post office with the president’s name on top?
But does this violate the Constitution’s Emoluments Clause as ThinkProgress’ Ian Millhiser suggests?
To explain, the ordinary rule under the Emoluments Clause is that federal officials may do business with foreign governments so long as they do not receive special treatment. If the president owns a $200,000 Rolls Royce, Painter told ThinkProgress, they can sell that car to the Queen of England, so long as they only receive its fair market value. If Her Majesty The Queen pays $250,000 for the Rolls Royce, however, that would violate the Emoluments Clause.
There’s a catch, however, for someone like Trump who trades on the value of his own name. “Anything in excess of fair market value is a gift,” according to Painter, “and I don’t think you can take into account the value of the name Trump in calculating fair market value.” The diplomats are not staying in one of Trump’s expensive luxury hotels because Trump is charging their nation a reasonable market rate for a night’s stay. They are staying in the hotel because of the added value that comes from doing business with the President of the United States.
“It had better stop by January 20,” says Painter.
Or what? Will Harry Reid bring suit in the court of original jurisdiction against Trump? And prove what, that he’s making oodles of money because other people suddenly think his hair makes him look smexy now that he’s president? Did nobody realize that he plastered his name on buildings all over Manhattan and other places of limited relevancy?
What this mostly means is that Donald Trump will ignore the norms of a person wielding vast governmental power, or working in a mailroom somewhere and subject to the Foreign Corrupt Practices Act, by having the keys to the oval office while his beloved daughter Ivanka sits in on his meetings with the Japanese premier. And you thought Chelsea was the only female being groomed for greatness?
The President of the United States doesn’t do this. He doesn’t enjoy the collateral consequences of wealth in exchange, whether real or perceived, for his favors. It’s so…wrong.
It’s not that presidents past were poor, such that they had no financial interests at stake while pondering the fate of the world. It’s that most, coming from government, didn’t have active businesses but merely passive investments. That meant they could divest from whatever holding they had, put them in a blind trust so they wouldn’t know what they were invested in, and plausibly enjoy the appearance of neutrality, until after they left office and were handed honorariums that required suitcases to hold.
But that was due to good judgment, not the Emoluments Clause.
A lot of people argue that the political elites are dirty, filthy horrible people, and indeed, they do their best to prove those people right. But then, the shallow expectations of outsiders being better, being different, ignores how we came to the place where people became insiders. Beyond being purer than Caesar’s wife, they are expected to be knowledgeable both as to the mechanics of government, the law, the Constitution, diplomacy and playing the public’s feelz for all they’re worth.
You wanted an outsider? He comes with baggage, and you can tell his baggage from miles away because there are big, gaudy, letters on them spelling his name. Will this influence his judgment? Will he sell the Queen his used Rolls Royce for more than it’s really worth? Will you care? Boss Tweed didn’t think so, as long as the courthouse got built. Ironically, it was the same courthouse where he was convicted in an unfinished courtroom.