As if President Donald Trump’s legal matters couldn’t become more complicated than they are at present, today, they just did.
The Attorney Generals of the District of Columbia and the State of Maryland, this morning, filed complaints in Federal Court – the U.S. District Court of Maryland, alleging violation of conflict of interest, specifically breaches of the Constitution’s “Emolument Clause”.
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. Article 1, Section 9, Clause 8 Art. II, Sec. 1, clause 7 applies to the President and VicePresident.
The foundation of the suit is a question over whether the President’s avowed transfer of control over Trump’s businesses, particularly his resorts and hotels to sons Eric Trump and Donald Trump, Jr., constitute a legitimate separation between Trump and his assets, or merely a device to create the impression of divestment, when in reality, the arrangement is functioning as a means of influence peddling on the part of Trump.
The purpose of the suit is summed up by a paragraph in the filing:
“Fundamental to a President’s fidelity to [faithfully execute his oath of office] is the Constitution’s demand that the President … disentangle his private finances from those of domestic and foreign powers. Never before has a President acted with such disregard for this constitutional prescription.”
Brian E. Frosh, the Maryland Attorney General and Karl A. Racine, Attorney General of D.C. contend that it is not credible to assume that Trump is not communicating management decisions to his sons during the briefings they provide him on the status of his businesses.
Typical in such arrangements where trusts are set up to assure the owner is not leveraging political influence to further his or her investments, is a form of trust called a “Blind Trust”. Experts on how these are constructed and administrated, dispute that Trump’s arrangement fulfills the spirit or letter of a blind trust. Among them is the Director of the U.S. Office of Government Ethics (OGE), Walter M. Shaub Jr. Of Trump’s transaction concerning his business affairs, Shaub opined earlier this year that the manner in which the trust is structured and operationally, it is “not even halfway blind.”
“His own attorney said today that he can’t “un-know” that he owns Trump tower. The same is true of his other holdings. The idea of limiting direct communication about the business is wholly inadequate. That’s not how a blind trust works. There’s not supposed to be any information at all,” said Mr. Shaub.
R. Bradford Malt, a Republican attorney in charge of Mitt Romney’s blind trust at the time when Romney was a governor and a presidential candidate, agrees with Shaub. “That trust is not blind; that trust is as transparent as a window,” Mr. Malt said.
The suit filed on Monday, is not the only suit asserting conflict of interest issues involving Trump’s businesses. The Citizens for Responsibility and Ethics in Washington (CREW), a D.C. based public interest non-profit org, also sued the President in January, arguing that his receiving bookings from foreign governments for hotels and office space, violate the Emoluments Clause of the Constitution.
Among the nations that have already patronized Trump’s properties are Saudi Arabia and Turkey. The head of that group (CREW) – a former White House ethics adviser, Norm Eisen, said of Trump’s murky arrangements, “We sounded a pretty loud and pretty accurate clarion call that if he didn’t separate, everything he did would be surrounded by a miasma of scandal.”
Critics of Trump have cited Trump’s use of his resort in Jupiter, Florida – Mar-Al-Lago, to lure foreign governments and investors to spend large sums with the intention of getting favorable notice from a sitting president.
Of the D.C. / Maryland suit, A.G. Frosh comments, “This case is, at its core, about the right of Marylanders, residents of the District of Columbia and all Americans to have honest government. The emoluments clauses command that … the president put the country first and not his own personal interest first.”
The Trump International Hotel opened late last year, conveniently just a short distance from the White House. It was built on the footprint of the Old D.C. Post Office building, which was a government asset controlled by the GSA (Government Services Administration). The process of ceding the building to the President, looks suspicious at best, to ethics experts – and conceivably, a legal issue to district authorities.
There was a clause in the contract which forbid any elected official from remaining on the lease and the GSA maintained the position that Trump would have to withdraw from the lease if he was elected. Now that Trump has influence over the GSA’s budget, a letter was issued by the agency declaring Trump in compliance with the provisions of the lease.
Of interest to ethics watchdogs is the influence that the property is exercising on foreign governments such as Saudi Arabia, who have booked stays, spending $270,000 at the Washington hotel over the course of a few months; the Kuwaiti Embassy and the Ambassador of the Republic of Georgia. Trump frequently greets such guests at the hotel, making the effect of influence peddling all the more self-evident.
The Trump Organization is even applying to the GSA for a $32 million dollar tax credit, as if the properties’ preeminence over other local hospitality establishments for luring foreign booking is not profitable enough.
Eisen, also a consultant to the Maryland and D.C. Suits, sums up the problems with Trump’s conduct and continued self-dealing:
“In the emoluments clauses, we have these ancient air bags that were placed in the Constitution by the framers that are now being deployed. Trump is the framers’ worst-case scenario; a president who would seize office and attempt to exploit his position for personal financial gain with every governmental entity imaginable, across the United States or around the world.”
The Justice Department, in it’s defense of the CREW suit and a motion to dismiss, is putting stock in the argument that the President is entitled to “sovereign immunity” from such suits. Experts on the subject of “sovereign immunity”, such as James Matkin, a noted expert and author of a research paper on the subject, consider that notion – a carryover from English Common Law, upon which Title 18 of the U.S. Code was based – a dubious defense that is vulnerable to challenge.