Michael Dorf: Can Trump Escape the Whiff of Corruption?

The Trump International Hotel on its opening day in Washington, D.C., on September 12. Michael C. Dorf writes that since Trump’s unexpected victory, foreign diplomats have been busy booking rooms in his new hotel on Pennsylvania Avenue, creating at least the appearance that they are attempting to curry favor with the incoming administration. And that is just the tip of a potentially very large iceberg. Kevin Lamarque/reuters

This article first appeared on the Verdict site.

Donald Trump's extensive and opaque business empire poses an unprecedented risk of corruption.

To give just one example, as The Washington Post recently reported, since Trump's unexpected victory, foreign diplomats have been busy booking rooms in his new hotel on Pennsylvania Avenue, creating at least the appearance that they are attempting to curry favor with the incoming administration.

And that is just the tip of a potentially very large iceberg. Foreign governments seeking good relations with the U.S. will not only send their diplomatic staff to Trump's hotels; they will provide favorable terms for Trump-branded properties in their home countries.

In return, they will expect—and perhaps will receive—favorable treatment from the United States. If you are a murderous potentate, permitting a Trump golf course to open in your capital is a small price to pay for the whitewashing of the State Department's country report on your human rights practices.

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Likewise, if you are the CEO of a large bank that formerly refused to do business with Trump because you reasonably feared that he would not repay you on time and in full, you will now be more than eager to extend credit to Trump's businesses. Even if you never receive a dime in repayment, you can hope to receive lax regulatory oversight in exchange.

Existing Legal Limits

But wait. Wouldn't efforts by foreign governments and corporations to funnel money to Trump's businesses in return for favors be illegal? Sure, but proving it is another matter.

In a ruling earlier this year in a case involving the former governor of Virginia, a unanimous Supreme Court narrowly construed the federal bribery statute to require a more or less explicit quid pro quo in which a thing of value is exchanged for an official act. Gifts in exchange for mere access to government officials do not count, the court said.

Congress could try to tighten the bribery law, but that seems extremely unlikely with Republican control of both the House and the Senate. It will become unlikelier still after January 20, when any bill would need President Trump's signature or enough votes to override a Trump veto. And in any event, with Trump appointing the Justice Department officials who decide whether to bring charges, even existing legal limits might not be enforced with any vigor.

What about the Constitution itself? Law professor Richard Painter, who served as chief ethics counsel to President George W. Bush, has pointed to the Emoluments Clause of Article 1, Section 9, which forbids any "Person holding any Office of Profit or Trust" in the federal government from accepting "without the Consent of the Congress…any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State."

Painter argues persuasively that a sweetheart deal for a Trump property from a foreign government would constitute a forbidden "present" or "Emolument." However, the Emoluments Clause is not self-enforcing. A handful of contested cases involving military personnel and a variety of intra-executive opinions construe the clause, but Trump's failure to abide by these constructions would not by itself lead to litigation.

Congress could hold hearings that might embarrass President Trump, but it could not bring a prosecution. The only remedy for an Emoluments Clause violation would appear to be impeachment, which would likely carry unwanted political consequences for Republicans in the form of primary challenges.

As president, Trump will probably be able to get away with unprecedented levels of corruption or at least the appearance thereof—so long as he remains popular with the Republican Party base. Accordingly, those of us who are not part of that base should remain vigilant regarding the risks of corruption.

The Insidiousness of Corruption

I have already identified the main risk of corruption: that a Trump administration will pursue policies that further Trump's business interests at the expense of the national interest. But there are two other risks as well, one modest, the other large.

The modest risk is unjust enrichment. Trump could use the power and prestige of the White House to enrich himself and his family by billions of dollars.

Although this risk is real, it is modest because, in a country with a gross annual domestic product in excess of $18 trillion, the unjust enrichment of one man or family by even tens of billions of dollars is a relative drop in the bucket.

The United States is not and cannot easily be converted into a kleptocracy in which a small band of rulers divert a large fraction of the country's wealth to their own secret accounts while the mass of the public goes hungry.

Put differently, should Trump use the presidency to enrich himself, that would reflect very badly on his character but would not necessarily do much damage to the rest of the country. The real harm would be the cultural shift that corruption at the top could catalyze.

Corruption is contagious. When greasing the palms of the rulers is the way to get ahead, even people who are inclined to play by the rules will have reason to cheat, if only to avoid being left behind.

The effect then feeds on itself, and in turn undermines the entire economy. It is thus hardly surprising that high national levels of perceived corruption correlate with poor economic performance.

It would be comforting to suppose that it remains to be seen whether the Trump administration will undermine the general perception that the government in the United States is reasonably on the level. However, Trump has shown no interest in allowing outsiders to see into his business empire.

Having rejected the customary approach of putting his assets into a blind trust in favor of handing the day-to-day operations of his businesses to his grown children, Trump has effectively invited foreign governments and powerful private sector actors to curry favor.

Even if Trump's children and their employees make good-faith efforts to avoid trading policy favors for business, the appearance of corruption remains. And unfortunately, the appearance of corruption tends to spread actual corruption.

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University and co-author, most recently, of Beating Hearts: Abortion and Animal Rights. He blogs at DorfOnLaw.org.

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