The new president and a major crisis in the making

Hussein Ibish explains how and why Donald Trump will deliberately violate the Constitution from the moment he takes the oath

President-elect Donal Trump may already be in breach of the constitution. Evan Vucci / AP

In these pages last week, I suggested Donald Trump faced a series of potential early crises over Russia. Though he has yet to be inaugurated, a slew of Russia-related issues rocked Washington in the past few days, including Russian efforts to disrupt the election, possible ties between the Trump campaign and Russian officials, and an extremely dubious document outlining supposed Russian efforts to blackmail him.

Along with congressional hearings for his cabinet nominees, these controversies have dominated news coverage. What’s being lost in the clamour is a profoundly disturbing and under-scrutinised looming scandal over unprecedented and unheard-of conflicts of interest, and massive and ongoing violations of the US Constitution, that Mr Trump is preparing, quite openly, to bring into the White House with him when he is sworn in this week.

Shortly after he was elected, Mr Trump announced that he would hold a press conference on December 15 to explain how he would be “leaving my great business in total in order to fully focus on running the country”. This commitment was of the utmost importance , given that Mr Trump is probably the wealthiest person ever to have become president of the United States, and has international business holdings and financial commitments and partnerships around the world – and especially since the public knows so little about the details of his financial affairs because he has inexplicably refused to divulge any meaningful information, not even his tax returns.

As Mr Trump and his surrogates never tire of pointing out, US law explicitly exempts presidents and vice presidents from the conflict-of-interest prohibitions that apply to almost all other federal employees. However, minimal ethical propriety has led all previous US presidents to take basic measures to ensure that the public can have some confidence they weren’t trying to personally profit from their government decision-making.

That announcement was widely applauded, including through unprecedented praise from the non-partisan office of government ethics, which said it was “delighted” that he had committed to “divest your business”.

When the December press conference was cancelled without explanation, however, the worst fears reemerged. At his news conference on Wednesday, Mr Trump finally provided some details of his plan to “leave” his “business in total”.

The purported details announced were as insubstantial as the pile of apparently blank prop pages in unmarked files that he pointed to at the press conference and claimed were “documents” regarding the “separation”.

Mr Trump explained that he intends to do, in effect, nothing whatsoever meaningful to separate his presidency from his business interests.

He is merely turning over control of his company, which he will continue to own, to two of his sons and another employee. But he will still know exactly what he owns, and benefit from every penny of profit his company makes.

There will therefore be no way, even when this may not be overtly illegal, for the public to have any confidence at all that Mr Trump isn’t acting in his own pecuniary, financial interests on a dizzying array of policy issues. Public trust in him will be impossible.

The head of the office of government ethics expressed dismay at Mr Trump’s reversal of his pledge to divest and pointed out he is leaving himself wide open to “suspicions of corruption”. The response of Mr. Trump’s minions in Congress was to threaten to shut the office down altogether.

But far worse, the Constitution contains an “emoluments clause” that prohibits the president from receiving any gift or benefits from foreign governments, including companies wholly or partly owned by governments, unless Congress allows it. The Foreign Gifts and Decorations Act specifies a few limited exceptions.

Mr Trump’s lawyer preposterously argues that “fair market exchange” means that when Mr Trump’s company makes money for him doing business with foreign governments, he’s somehow not violating the clause. But the Constitution’s logic is clear. It prohibits receiving anything of personal value from foreign governments to preserve the independence of presidential decision-making. All financial gains from foreign governments and their subsidiaries – including rent, loans, investments and profits – are plainly constitutionally prohibited emoluments.

Mr Trump will therefore be deliberately violating the very Constitution he is swearing to uphold from the moment he takes the oath of office in multiple, practically incalculable, and continuously ongoing ways. Because of his extremely suspicious financial secrecy, the full extent of this intentional unconstitutionality can’t be determined. But the reality and seriousness of it is obvious.

American political attention is largely focused on Russia-related matters that are either under investigation or unsubstantiated, and may or may not prove to be momentous scandals.

Meanwhile an unquestionable, unprecedented and unconstitutional crisis of corruption that will haunt the new president from the moment he takes office remains barely scrutinised, woefully under-reported and unknown to most Americans.

Hussein Ibish is a senior resident scholar at the Arab Gulf States ­Institute in Washington

On Twitter: @ibishblog