Trump Transition Plays Fast and Loose with Laws, Tradition

The Trump transition is showing little regard for law, as it pushes forward cabinet appointees who have not submitted required documents, as it brushes aside the anti-nepotism statute to give son-in-law a White House Post, and as Trump retains international assets which could lead to foreign policy conflicts. A rundown:

That the Republican-controlled Senate tried to cram nine hearings of cabinet appointees into three days was certainly a deliberate strategy to not just hinder Democrats who want a shot at the President-elect's controversial choices, but to keep the public from seeing the questioning most of them faced. Only one hearing at a time would get television coverage, so we might not learn how labor secretary appointee Andy Puzder would explain why working men and women whose interests he will represent should be denied an increase in the minimum wage, say, or how Scott Pruitt can justify his appointment to run the Environmental Protection Agency he has sued from his perch as attorney general of Oklahoma.

Senators sit on more than one committee, so overlapping hearings would mean a number of them had to attend one and miss the other, thus not hearing testimony meant to guide their vote. Senate Minority Leader Chuck Schumer was left to lament on the Senate floor that "jamming all these hearings into one or two days, making members run from committee to committee, makes no sense".

For the transition team, it made perfect sense, but pressure won out and hearings for three appointees who have not completed the two-part FBI background ethics disclosures were delayed somewhat. The usual practice is for the president-elect's transition team to pre-clear cabinet choices, vetting for potential ethical conflicts or security liabilities before submitting their names to the Senate. The transition did not follow the practice, keeping under wraps the vast and complex business holdings of a few appointees that may be rife with conflicts. A couple, such as Betsy DeVos, appointed to run the Education Department, are billionaires. She and her husband have investments in some 250 companies registered at a single Grand Rapids, Michigan, address, "a tangle that could take weeks to investigate".

Rather than objecting, Majority Leader Mitch McConnell was party to the rush job. With only ten days to go before inauguration, he assured us that "Everyone will be properly vetted as they have been in the past and I'm hopeful that we'll get up to six or seven, particularly the national security team, on day one". That wasn't the point. The committee members should have those disclosures before them, because they may contain information that could lead to questioning or challenges. McConnell portrayed the Democrats as unreasonable:

"I was in Sen. Schumer's position eight years ago…What did we do? We confirmed seven cabinet appointments the day President Obama was sworn in…all of these little procedural complaints are related to their frustration in having not only lost the White House but having lost the Senate. I understand that, but we need to sort of grow up here and get past that".

McConnell failed to disclose that in a 2009 letter to then-Senate Majority Leader Harry Reid he had demanded that all President-elect Obama's nominees complete FBI background checks and government ethics reviews prior to their hearings. Schumer reminded him of that, reading aloud that 2009 letter on the Senate floor and pointing out that:

"Back in 2009, every Obama cabinet nominee had an ethics agreement in before their hearing, every Obama cabinet nominee underwent a full FBI background check before the Senate considered their nomination. President-elect Trump's nominees are way behind that mark."

The director of the Office of Government Ethics just wrote in a letter that,

“I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process”

And his office clears thousands of appointees, not just cabinet picks. The question remains whether the short delays will mean completed background paperwork for the three with the most complex portfolios: Ms. DeVos, Wilbur Ross (Commerce) and Andrew Puzder (Labor).

Donald Trump's son-in-law Jared Kushner — married to daughter Ivanka — is evidently very capable but he chose the right parents — as with Trump, his family had built a real estate empire — and then he married well. The combination fueled the 36-year-old's meteroric rise to breathtaking power. Trump values his judgment, "describing him as so talented that he could help 'do peace in the Middle East'”, and has even decreed that all foreign policy matters first go through Kushner. We wonder how that will sit with Secretary of State appointee, Rex Tillerson.

To calm criticism about a White House position as his father-in-law's adviser, the Trump camp says Kushner will take no salary, as if money is what defines nepotism. They claim that the nepotism law does not apply to the president. It reads:

"A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.

Certainly, the spirit of the law applies to the president. It was passed in reaction to President Kennedy having chosen brother Robert as Attorney General. Another argument is that the federal budget that funds the White House offices labels it an "agency", the criterion used in the clause. None of these principles have deterred the president-elect.

The transition office says Kushner has resigned as CEO from his real estate company, divested foreign holdings, and will relinquish his stake in the family's flagship 5th Avenue building in Manhattan. But left in place will be his ownership stake in all the other family real estate holdings and other assets.

As with other real estate firms, the Kushner Companies borrow heavily, and much of its borrowings are from foreign entities, making for concerns that circumstances could arise where foreign policy toward a given country might be colored by those debts, such as the "multiple loans from Israel's largest bank".

And now Ivanka has announced that she will resign from her position and board seat at the Trump Organization and move to D.C., not to take a White House job — that would be nepotism — but with a West Wing office to act as adviser to her father, because in the Trump administration's re-definition, only a job can be nepotism.

So for Trump the management of the United States is to be reconfigured as another family business.

The President-elect's press conference was unusual for his lawyer taking the podium for an extended description of the many steps taken to separate Donald Trump from the Trump Organization and turn control of the business to his two sons, Donald Jr. and Eric. They will call a halt to all foreign development projects and work only in the U.S. Dad will have no say over any new U.S. project they choose to undertake. The President "will only know of it if he reads it in a newspaper or sees it on a television", said lawyer Shari Dillon. The president will resign from all corporate positions and the assets of the company will be transferred to a trust.

But the trust is anything but blind. As lawyer Dillon said, "President Trump can't unknow that he owns Trump Tower". Neither can he unknow all his other assets that he continues to own and simply transferred to a trust. Lawrence Tribe of Harvard, often turned to as an acknowledged expert on the Constitution and given to prickly commentary, is outraged by this arrangement. An opinion piece of his in The Guardian is titled, "Donald Trump will violate the US constitution on inauguration day" for running afoul of the so-called Emoluments Clause of the Constitution found in Section 9 of Article I:

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.

The media has made conspicuous example of the newly opened Trump International Hotel in D.C., positing that foreign emissaries calling upon the government will (and already have) curry favor by making it known to the president that they are staying there (at $439 to $900 a night, says TripAdvisor). An example: "In February, the Kuwaiti Embassy plans to hold its National Day celebration for about 600 guests at the hotel", says the Wall Street Journal. So, Ms. Dillon says, to avoid any appearance of emolument, the Trump Organization will forego the profit from from the stays of any such foreign delegations and contribute it to the U.S. Treasury. "This way, it is the American people who will profit." So the ploy has been to convert the hotel from a conflict of interest into a PR gesture. (Will those contributions be made, it is fair to ask? A number of Trump's past pledged donations weren't).

And then there's debt, the several hundred million dollars that Deutsche Bank loaned the Trump Organization backed by the personal guarantee of Donald Trump. The bank has been the target of the Justice Department over "irresponsible" mortgage-backed securities. The years-long case was settled in December for $7.2 billion in fines but is still undergoing a criminal investigation. As the months proceed should we wonder about whether the fines might be reduced or charges lessened while never knowing whether there's been a quid for the quo?

What about the emoluments received from "foreign States" when their dignitaries and office holders join his golf course clubs or stay at other Trump hotels around the world, or, for that matter, seek to flatter Trump by applying to his Mar-a-Lago club with its $100,000 initiation fee?

Tribe told LawNewz.com that “the whole phony setup would make President Trump a living, walking, talking, tweeting violation of the Emoluments Clause each time banks or funds linked to foreign sovereigns are allowed to take steps that Trump will necessarily know are enriching the total value of his family’s mega-business.”