The intensifying threat of Donald Trump’s emoluments

There are numerous ways these projects may result in payments by foreign governments to Trump through his businesses. For instance, during Trump's term, his business partners in the UAEand Indonesiasigned agreements with construction firms that the Chinese and Saudi governments have ownership interests in to build developments that included Trump-branded elements. Whether developers on these new projects make similar arrangements or not, the many stages of development these projects will undergo during a potential second Trump presidency are likely to create financial conflicts. Unless Congress affirmatively consents, the planned use of Omani government resources to develop and promote Aida during a potential second Trump presidency would likely constitute prohibited foreign emoluments.

National security and foreign policy risks of Trump's conflicts

It is impossible for the public to know all the ways Trump, his businesses and his family receive money from foreign and domestic governments. Obstruction by former President Trump-including by refusing to release his tax returns-and his alliesin Congress is the primary reason for this lack of transparency.

However, information that has become publicly available since Trump left office shows he sought out and received a dizzying number of payments from foreign governments and acted favorably towards countries that paid him. The U.S. Court of Appeals for the Second Circuit heldthat the allegation that Trump's businesses offered his customers "the opportunity, by enriching the President, to obtain favorable governmental treatment from the President and the Executive branch," which was supported by expert declarations, was sufficiently plausible to grant federal courts jurisdiction to hear his business competitors' emoluments claims.

National security experts have warned about the risks associated with Trump's business relationships with foreign nations. Richard Painter, former chief ethics lawyer for President George W. Bush, warnedthat most of Trump's business appears to be in countries with "authoritarian governments or democratic governments gravitating toward authoritarianism . . . present[ing] serious national security challenges to the United States" when their diplomatic aims differ from our own. Former National Security Agency official Susan Hennessy wrotethat "[f]undamentally, ethics policies governing the Executive and his cabinet are national security protections." She added that, "the intention of the Emoluments Clause goes beyond mere safeguards against corruption. The founders viewed financial relationships between foreign nations and officials in offices of public trust as a threat to the existence of the Republic itself."

Unlike any president in American history, Donald Trump treated the office of the president as one of self service, rather than public service. Below are just some examples of then-President Trump's known conflicts of interest, which may have resulted in harm to U.S. national security and foreign policy:

The People's Republic of China:

• Trump Tower's largest commercial tenantfor many years was a Chinese government-owned bank, which paid lease and other payments to Trump's businesses. Trump's administration decidedagainst sanctioning the company, despite its tiesto North Korea.
• Millions of dollars in otherpaymentsfrom China may have influencedTrump's attemptsto protect Chinese telecommunications company ZTE from sanctions, despitewarningsfrom U.S. intelligence officials that the company's products may be used by the Chinese government to spy on Americans.

The Kingdom of Saudi Arabia:

• Within weeks of Trump's election, lobbyists representing the Saudi government reserveda block of an estimated 500 rooms at Trump's DC hotel.
• As president, Trump supported theSaudi-ledblockadeof Qatar, which houses a major U.S. military installation, and openly questionedthe U.S. intelligence community's conclusion that Saudi Crown Prince Mohammed bin Salman was responsible for the brutal assassinationof journalist Jamal Khashoggi, a United States resident, in Istanbul.
• Trump also vetoeda bipartisan resolution demanding an end to U.S. military support for Saudi actions in Yemen due to the Saudi operation's massive civilian death toll.

The Republic of Türkiye:

• In the wordsof candidate Trump in 2016, "I have a little conflict of interest because I have a major, major building in Istanbul." Later that year, Türkiye's President Erdoğan threatenedto remove Trump's name from the Trump Towers in Istanbul in response to Trump's Muslim Ban, though the then-president's name ultimately remained on the towers.
• Trump's Turkish business interests may have influenced Trump's stunning 2019 decisionto suddenly pull U.S. troops out of northeast Syria after a phone callwith President Erdoğan. Erdoğan had sought to launch an attack against America's long-time Kurdish allies, but was unable to do so with the existing U.S. troop presence. In the days after the U.S. withdrawal, Türkiye bombedthe Kurds in the region en masse, displacingat least 130,000 people. Following the attacks, Trump falsely claimedthat "the Kurds are much safer right now."
• Trump's financial conflicts may have also played into various other favorable decisions Trump made on behalf of Türkiye, including reportedlydirectingthe Department of Justice to terminate its prosecution of a Turkish state-owned financial institution over allegations of money laundering and evading sanctions on Iran; and Trump's silencewhen the Turkish President's bodyguards assaultedU.S. citizens who were peacefully protesting the policies of the Turkish government in Washington, D.C., as President Erdoğan calmly watched.

The Republic of the Philippines:

• Trump's financial stakein a Trump-branded apartment complex in Manila (earning him millions of dollars while in office), as well as the Philippine Embassy's decision to pay Trump's businesses at least $75,000to host their National Day Reception at the Trump International Hotel in Washington, D.C., may have contributed to why the Philippine ambassador noted Philippine-U.S. relations "warmed up" during Trump's administration. The warming in relations came despite the fact that Philippine leader President Rodrigo Duterte reportedly orchestrated the unlawful killingsof thousands of Filipino citizens during this time.

Other foreign nations:

• During a trip to Europe, then-President Trump insisted on staying at his Irish resort in Doonbeg, claiming it was "convenient" despite being on the other side of the island from Dublin, while the Trump Organization promotedhis visit. Trump also reportedly pressured the Irish prime minister to meet him at Doonbeg, andthreatened to movehis visit to Scotland instead if the prime minister failed to agree. When Vice President Pence traveled to Ireland for meetings in Dublin, he also stayed at the president's Doonbeg property. Pence's chief of staff said Trump suggestedthe resort, resulting in furtherfederalspendingat Trump's businesses.
• Trump pressuredthe U.S. ambassador to Britain to see if he could steer the British Open to Trump's Turnberry golf resort in Scotland in 2017. The ambassador, Woody Johnson, followed up on the request by raising the idea with Scotland's secretary of state, though the attempt was unsuccessful.
• The Trump administration may have waitedto impose tariffs on Argentina until after Argentina's government had approved two trademarks for Trump's businesses, then imposed them within a month of Argentina's approval of the trademarks.

Even as Trump claimedto have delegated authority over his businesses to his children via a revocable trust, the revocable trust itself was a half-measure that the OGE director decriedas "meaningless from a conflict of interest perspective" before resigninghis post. Trump remained the primary beneficiary of his companies and of course remained aware of his business interests, meaning that conflicts of interest very much remained regardless of whether the delegation of control was at all meaningful.

In addition to the payments and financial interests above, then-President Trump also put national security and foreign policy at risk by taking policy decisions out of the hands of non-partisan agency experts and shifted themto his family members, business contacts and members of his private Mar-a-Lago club. Trump hired his daughter Ivanka Trump and son-in-law Jared Kushner into the government and involvedthem in U.S. foreign affairs. Ivanka participated in several meetings between Trump and foreign heads of state, including: Prime Minister Shinzo Abe of Japan shortly after the 2016 election while she had several trademarks pending approvalfrom Japanese regulators and was in active discussions to close a licensing dealwith Sanei International, whose largest shareholder is wholly owned by the Japanese government; and President Xi Jinping, whose government grantedIvanka Trump provisional approval of three new trademarks the day they dined together at Mar-a-Lago. Reporters from the Miami Herald reportedXi's visit to Mar-a-Lago was an "unparalleled money maker" and "the most successful promotional event in the club's history."

Trump also reportedly leveraged his position as president to give his family and paying members of his Mar-a-Lago property accessto foreign and U.S. officials, allowing members to take pictures with policy-makers and even play a role in shapingfederal policy. In 2017, a Mar-a-Lago member posteda picture of Trump being briefed on an attack by North Korea at the club and a picture of himself posed with the White House official who carries the nuclear football.

All this helps explain why more than 150 foreign government officialspatronized Trump properties during his presidency. These numbers do not include U.S. and state government officials who also stayedand otherwise spent money at his properties during his term, including members of the U.S. military. Due to Trump's preference to stay at Trump owned or branded properties, the Secret Service alone spentmore at his businesses than Trump would have earned as president.

Even after leaving office, Trump reportedly shared classified nuclear submarine informationwith an Australian billionaire who only became a Mar-a-Lago member to ingratiate himself with the American president, paying generously to attend galas Trump would attend, while in private saying Trump does business "like the mafia."

The Constitution's drafters understoodthe dangers of normalized public corruption and the difficulties in untangling complex webs of financial influence. Trump's financial conflicts of interest illustrate the Emoluments Clauses' importance-and the urgency that they be enforced.

How the legislative and executive branches can protect against corruption

Divestment from his businesses is the best way for Donald Trump to protect against violations of the Emoluments Clauses and the resulting national security risks and financial conflicts of interest. Based on Donald Trump's past actions, it is unlikely that he would voluntarily divest. However, common sense and experience dictate that compliance with the Constitution's prohibitions on improper influence should not be subject to the whims of a public official actively being paid by foreign governments-even if that person is the president.

Ultimately, Congress must act to create clearer enforcement mechanisms and transparency rules for domestic and foreign emoluments, mindful of any enforcement loopholes the current highly conflictedSupreme Court, Justices Alitoand Thomasin particular, may create.

Until that time, federal employees and inspectors general are required to act in compliance with the law as it is plainly set forth in the Constitution, their oaths of office and executive branch ethics regulations. This means refusing to use their authority to enable prohibited emoluments to flow to a sitting president and reporting such incidents to their agencies' Offices of Inspector General (or the federal Office of the Special Counsel), who in turn must investigate each alleged violation and report them to Congress. Offices of Inspector General must also affirmatively act to build and implement compliance programs to ensure executive branch employees do not contribute to illegal activity by enabling prohibited foreign or domestic emoluments.

Finally, should Trump serve as president again, the Committee on Foreign Investment in the United States (CFIUS) must investigate Trump's foreign emoluments as they occur and recommend divestment where appropriate, which should include immediately investigating the Saudi investment in LIV Golf and their partnerships with Trump properties.

Legislation

Congress should pass legislation to make it simpler and easier to enforce the Emoluments Clauses. These Clauses were designed to foreclose improper efforts to influence the president (and, in the case of the Foreign Emoluments Clause, other federal officials) and constitutionally ensure that corruption does not undermine public faith in democracy.

Former President Trump's repeated violations of the Clauses during his term-and the difficulty of enforcing them, illustrated by Trump's ability to delay CREW's lawsuits until they were mooted by Joseph Biden's election-made clear that further action is required to ensure the law is enforced.

Require disclosure and divestment of emoluments, absent congressional consent, overseen by the Office of Government Ethics

Congress should amend the Ethics in Government Act of 1978to require presidents and vice presidents to disclose and divest all assets that might present a conflict of interest in violation of the Emoluments Clauses within 30 days of taking the oath of office. Divestment can be achieved by placing the assets in a blind trust to be sold by an independent trustee or by some other mechanism, such as an arms-length transaction. Funds that are independently managed, widely held and either publicly traded, publicly available or widely diversified are appropriate investments.

The amendments to the Ethics in Government Act should empower the Office of Government Ethics (OGE), which is experienced in ensuring that other executive branch officials address financial conflicts of interest via divestiture, to oversee the process. These amendments should:

• Require presidential and vice presidential candidates to disclose a detailed plan to address actual and potential financial conflicts of interest if elected. The disclosure should include how candidates plan to divest from conflicting assets that would violate the Emoluments Clauses, including all foreign emoluments which have not received congressional consent to date. If candidates intend to use a blind trust mechanism, they must be required to obtain preliminary approval from OGE of the proposed trust instrument within 30 days of accepting their party's nomination;
• Modify candidate financial disclosure forms to require greater specificity in amounts for information currently disclosed and require beneficial ownership information for business partners and information about the actual holders of debt and terms of repayment;
• Affirmatively require disclosure of receipt of foreign and domestic emoluments by public officials, including presidents and vice presidents;
• Create a formal and transparent procedure for presidents and other officials to seek Congress's permission when they receive, and seek to retain, otherwise prohibited foreign emoluments;
• Grant OGE specific authority to promulgate regulations to ensure reporting and disclosure of potential foreign and domestic emoluments, a schedule of administrative fines that may be imposed for violations and a process for referring matters to the Office of Special Counsel for investigation; and
• Require OGE to make publicly available reports to Congress regarding the president and vice president's compliance with the Emoluments Clauses.

Once in office, the president and vice president must be required to demonstrate they have followed through on their plans to address financial conflicts of interest by certifying to OGE that they have done so. Falsifying this type of report, if required to be filed under the Ethics in Government Act, would not only expose the president and vice president to possible civil and criminal penalties under the Act, but could also lead to a violation of 18 U.S.C. § 1001for making a false statement on a matter within the jurisdiction of the executive branch if made knowingly and willfully. Congress should also amend 5 U.S.C. § 1216to clarify that the Office of Special Counsel has jurisdiction to investigate issues concerning the violations of the Emoluments Clause and related disclosure and reporting obligations.

All reports and disclosures required by these amendments, and those below, should be publicly available and subject to a right of public transparency. Like it did in the Freedom of Information Act (FOIA)and the Federal Election Campaign Act, Congress should confer a clear right for private citizens to obtain these documents and authorize lawsuits in federal court against OGE should the documents be improperly withheld. Congress should allow state courts to hear such claims under the Ethics in Government Act as well.

Finally, because a conflicted president may seek to remove (or fail to appoint) OGE's director to defeat this disclosure and divestment process, Congress should require that any removal of the OGE Director be for causeand allow the Director to continue to serve beyond the expiration of their term for up to one year or until a successor is appointed and has qualified.

Require disclosure of candidates' tax returns

The release of Trump's tax returns provided significant insights into how Trump received payments from foreign and domestic governments. Congress should amend the tax code to remove the confidentiality afforded to presidential and vice presidential candidates' tax returns, so citizens can understand candidates' conflicts of interest before voting.

Parties which have been legally granted access to candidates' tax returns, like the Internal Revenue Service (IRS), should be permitted to release them without penalty. The amendments should also subject candidates' tax returns to the FOIA, thus permitting the public to demand them, in the event that a sitting president orders the IRS not to release them.

Congress should also further amend the Ethics in Government Act to require candidates to file their tax returns with OGE within 30 days of their nomination or election to the office of president or vice president or by May 15 of that calendar year, whichever is later, but at least 30 days before the election. Candidates for president or vice president, or those holding such office, should be required to release their annual returns on or before May 15 of each succeeding year. These amendments should further specify a limited set of information that a candidate is permitted to redact before submitting tax returns to OGE for publication, and OGE should be granted specific authority to require a filer to unredact information that does not fall into specified categories.

Extend the conflict of interest statute, 18 U.S.C. § 208, to the president and vice president

The criminal conflict of interest statute, codified at 18 U.S.C. § 208, prohibits executive branch employees from participating in particular matters that would have a direct and predictable effect on their financial interests or those of their spouses or minor children. Extending the criminal conflict of interest prohibitions to the president's and vice president's financial interests would impose on them the same obligations that apply to other executive branch employees.

Since their domestic, foreign policy and national security duties and obligations are so vast and cut across all economic sectors, the conflict of interest statute, if applied to the president and vice president, would necessitate that they divest all financial interests in publicly traded securities or private business investments since virtually any of them could pose a possible conflict of interest. They could instead reinvest the proceeds into non-conflicting assets, such as diversified mutual funds. While some executive branch employees can resolve their conflicts of interests by recusal from certain official decisions, recusal would not be a viable option for elected officials like the president and the vice president.

Requiring the president and vice president to divest their financial interests would not only resolve financial conflicts of interest, but also would eliminate the risk of emoluments violations that would otherwise arise from those interests, as retention of those assets would no longer be permissible.

Void contracts between the federal government and the president or vice president

Congress should amend 18 U.S.C. § 431to void contracts between federal agencies and the president, vice president, their immediate family members (including adult children) and businesses any of these covered individuals control. Voiding federal contracts that confer a prohibited profit, gain or advantage would present another strong incentive to divest.

Create clear legal pathways for emoluments clause enforcement

While current law provides for enforcement of the Emoluments Clauses in court, Congress should nonetheless create a clear cause of action to enforce the clauses and divestiture requirements. Any cause of action should explicitly allow for declaratory and injunctive relief against a sitting president in their personal capacity, including disgorgement of profits from constitutionally prohibited assets. An extended statute of limitations for such causes of action would also be appropriate.

An explicit cause of action would increase the potential for enforcement and deter unlawful action by the president or vice president, even in circumstances where Congress is controlled by the same party as the White House. Such claims should be available to a diverse set of prospective litigants, including the United States attorney general, state attorneys general, Congress and private citizens like business competitors.

Additionally, Congress should make clear in the cause of action that a suit can be brought in state court, and that it would remain in state court if a federal court finds it has no jurisdiction to hear the case for any reason. Congress should empower state officials to seize assets that violate the Emoluments Clauses and levy hefty fines, up to ten times the amount of the assets, following a successful seizure.

Executive branch ethical and investigatory obligations

Even without legislative action to clarify and streamline the methods of Emoluments Clause enforcement, and despite Trump's threats to destroythe federal civil service, executive branch employees are still required to obey the Constitution. While affirmative enforcement actions would be unlikely during a potential second Trump administration, executive branch employees would remain obligated to prevent-and investigate-violations of the Emoluments Clauses.

Every individual serving in the executive branch, including the president, must swear an oath to "support" and "defend" the Constitution, including by complying with the Constitution's Emoluments Clauses. Taking actions that violate the Emoluments Clauses would violate this oath.

The Standards of Ethical Conduct for Employees of the Executive Branchfurther requireemployees "to place loyalty to the Constitution, laws, and ethical principles above private gain." 5 C.F.R. § 2635.101(a). Executive branch employees also have affirmative duties to disclose "abuse[] and corruption to appropriate authorities" and "endeavor to avoid any actions creating the appearance that they are violating the law or . . . ethical standards." 5 C.F.R. §§ 2635.101(b)(11), (14).

Consistent with the law and executive branch ethics regulations, executive branch employees may not knowingly enable unlawful emoluments to a sitting president. If an executive branch employee suspects public funds are being improperly directed to a sitting president, including through intermediaries, they must not approve such transactions and should instead refer them for investigation.

For example, under current law, State Department employees are required to clear leases, sales or other uses of property in the United States transferred to a foreign government. Recordsobtained by Reutersshow that, following Trump's inauguration, at least six foreign countries-as well as the European Union-were approved to lease units in Trump World Tower in New York. Because then-President Trump, through entities he owns, received common charge payments made to the Trump World Tower by tenants, and Congress did not consent to his receipt of them, these payments likely qualified as prohibited foreign emoluments. To comply with the Constitution and their ethical obligations, these State Department employees should not have cleared these leases and should have instead referred them for investigation.

Because a conflicted president could stop any enforcement actions against them, two existing authorities created by Congress to investigate abuse of government resources will be critical to understanding the nature of any prohibited emoluments and ensuring public awareness:

• Inspectors General: There are 72Offices of Inspector General (OIGs)across the federal government, governed primarily by the Inspector General Act of 1978, as amended (IG Act). OIGs are independent offices within each agency which can both receive and investigate confidential whistleblower complaints, as well as affirmatively "combat waste, fraud and abuse" in agency operations through audits, investigations and reports sent to Congress. The IG Act also authorizes inspectors general to "immediately" report "particularly serious or flagrant problems, abuses, or deficiencies" to an agency head who "shall transmit any such report to the appropriate committees or subcommittees of Congress within seven calendar days."
• Office of Special Counsel: Current and former executive branch employees can also reportpotential wrongdoing to the Office of Special Counsel (OSC), which publishesthe results of all its cases. If OSC finds a report establishes a "substantial likelihood" of wrongdoing, OSC must refer the complaint to the appropriate agency head, who is in turn required to investigate and submit a written report to the OSC within 60 days, though OSC may grant extensions. OSC then must send the agency report, any comments from the whistleblower, and OSC's determination to the White House and Congress, and publish the information on OSC's website. If the OSC does not find a substantial likelihood of wrongdoing, they must inform the whistleblower of the reasons for their determination.

Executive branch employees of the U.S. Securities and Exchange Commission (SEC), for example, may need to call on these authorities during a potential second Trump term. The president is responsiblefor appointing the five members of the SEC with the advice and consent of the Senate, including the SEC chair who serves as the commission's top executive. The SEC oversees regulation of securities trading, including issues concerning DJT. While Trump may undermine any enforcement actions during a potential second term, the SEC's agency staff would still have a duty to review TMTG's financial and management reports for signs of potential illegal emoluments. If any such signs are discovered, SEC employees would be required to investigate and should report any suspicious activity related to DJT stock to the agency's Office of Inspector General.

Review of certain transactions by CFIUS

The Committee on Foreign Investment in the United States (CFIUS) is an inter-agency committee, chaired by the Secretary of Treasury, that reviews the national security implications of certain foreign investments. All companies proposing to be involved in an acquisition by a foreign firm are supposed to voluntarily notifyCFIUS, though CFIUS can launch its own investigations if a company fails to file. Subject to the president's discretion, CFIUS can order divestment or other remediesin response to any national security risks presented by such transitions.

Where permitted under law, CFIUS must investigate Trump's foreign emoluments. For example, it is unknown whether the Saudi investmentin LIV Golf will grant the government of Saudi Arabia and its royal family, or their representatives, access to sensitive information concerning government officials and leaders of critical industries. Such individuals are likely to attend LIV golf events at Trump golf properties, which are the top driversof Trump Organization cash flow, during a second Trump presidential term.

Separately, both the Trumpand Bidenadministrations have identified the significant risk posed by foreign adversaries' access to large repositories of United States persons' data. Given TMTG's business imperativeto collect data on its users (which could include government officials and leaders of critical industries), CFIUS would need to keep a close eye on trade in DJT stock during a second Trump term. CFIUS would also need to understand the advertising data TMTG provides to any foreign government clients, mindful of the continuing effort of foreign adversaries to obtain United States persons' data to harm the national security, election integrity and economy of the United States.

Conclusion

More disturbing than Donald Trump's past disregard of the Constitution and conflict-of-interest principles is the increased scale of corruption and foreign influence he is poised to oversee in a second term, should he not divest from his business empire. Despite the sale of his Washington, D.C. hotel, as it stands Trump's known business interests would immediately pose serious threats to our national security and violate the Constitution's Foreign and Domestic Emoluments Clauses if he does not divest and Congress does not consent to his receipt of foreign payments.

Our Constitution's framers understood, as we do, that personal interest can affect decision-making. They assumed American presidents would at times be tempted to put their own financial interests before the interests of the American people. Further, regardless of what actions a president ultimately takes, the framers understood that the doubt cast over his or her decision-making by active conflicts of interest would inevitably undermine democratic self-governance itself. They included the Constitution's Emoluments Clauses to preemptively address such financial conflicts before they occurred.

In light of the egregious national security and foreign policy threats posed by Trump's existing financial conflicts, the stakes for building a clear emoluments enforcement regime could not be higher. Congress must therefore pass legislation to streamline enforcement of the Emoluments Clauses across the board, including by mandating divestment in certain cases.

Yet, even without congressional action, executive branch employees remain bound by their oaths and ethical obligations not to use their authority to enable prohibited emoluments to flow to a sitting president. And Congress's existing mandate to agency Inspectors General requires they administer proactive emoluments compliance programs and meaningfully investigate reports of violations of the Emoluments Clauses.

The Constitution forbids a sitting president from accepting profits, gains or advantages from the federal government, or the individual states, beyond his or her official compensation. Without consent from Congress, a sitting president is also barred from receiving profits, gains or advantages from foreign governments. Should Donald Trump be afforded the privilege of government service again, these constitutional requirements demand that he divest from his business receiving such government benefits. The threats to our national security, foreign policy and form of government are simply too grave for it to be otherwise.

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