What do you get when you combine the right idea with the wrong process, the wrong strategy, and moral preening that ignores the application that the right idea would have had for the other side of an election? This stupid and futile gesture from the progressive wing of the Senate Democratic caucus. It ostensibly seeks to force Donald Trump into divesting himself of his businesses and putting his assets in a blind trust. It operates more as a sour-grapes shot that might actually weaken the argument for its core idea:
A group of Senate Democrats will introduce legislation requiring President Elect Donald Trump to divest any financial assets that pose a conflict of interest and place the money into a blind trust.
The bill would also consider any violation by Trump of conflict of interest or ethics laws a “high crime or misdemeanor under the impeachment clause of the U.S. constitution,” according to a fact sheet on the forthcoming bill from Sen. Elizabeth Warren’s office.
“The American people deserve to know that the President of the United States is working to do what’s best for the country – not using his office to do what’s best for himself and his businesses,” the Massachusetts Democrat said.
Democrat Sens. Ben Cardin (Md.), Chris Coons (Del.), Dick Durbin (Ill.) and Jeff Merkley (Ore.) also back the legislation. They’ll formally introduce the bill next month when lawmakers return to Washington.
First off, the core principle here is the correct path to take. Any incoming president should follow tradition to eliminate potential conflicts of interest, because voters should know that their interests come first. I wrote about this earlier in the week, explaining that it eventually redounds to the president’s benefit too:
In order to succeed politically — i.e., get an agenda passed in Congress — a president has to acquire and guard his or her political capital carefully. If an executive is seen as using the office for his personal enrichment, that political capital will dissipate quickly. Just ask Jesse Ventura what happened when he decided to moonlight as an XFL television commentator during his tenure as Minnesota governor. …
Like it or not, running for president means becoming a public servant and prioritizing the public trust over private fortunes. The best way to avoid those political landmines is to divest his interests in the business as soon as possible and hand the reins off to his sons. Trump’s been running for this office for almost two years now, and he should already have a succession plan in place for this eventuality. It’s time to put it into action.
However, the introduction of this bill is nonsensical, and Senate Democrats should know it. Congress can set conflict-of-interest statutes that apply to people who work in federal agencies because those operate under shared authority with the president. Congress cannot pass laws pertaining to the president (and much of his or her direct staff) because of the separation of powers in the Constitution. Presidents get voted into office by the states through popular votes within them, which makes them accountable separately from Congress. This is why divestiture and blind trusts for presidents have been tradition rather than a legal requirement. Congress cannot set conditions or qualifications for the office of the presidency without amending the Constitution to do so, and a bill requiring divestiture would in essence do exactly that.
Next question: Who enforces such a statute, and what would it entail? Congress can’t conduct law enforcement actions; they can only recommend enforcement by the executive branch. The Constitution explicitly prohibits Congress from a law-enforcement and judicial role with the ban on “bills of attainder.” We saw how that works with the contempt charges against Eric Holder a few years ago. Presidents who break laws can be prosecuted, as Bill Clinton discovered, but those prosecutions don’t remove a president from office. Only Congress can do that, and it has to be through impeachment — which is a political process, not law enforcement.
That’s why citing the threat of impeachment as a consequence of this statute is redundant and silly. The Constitution already grants Congress the authority to impeach without passing statutes defining which actions are and are not “high crimes and misdemeanors.” The House gets to define those for themselves when the issue arises. The Senate defines them if and only when the House approves articles of impeachment and sends them to the upper chamber for a vote on conviction and removal. (The Emoluments Clause offers a wide opening for the House on this score without Warren’s bill.) In both of the only two impeachments in American history, the House thought presidential behavior qualified for it, and the Senate disagreed. The latter case involved convictions for perjury and obstruction of justice — and Dick Durbin, one of these signatories, didn’t find perjury and obstruction of justice to be “high crimes and misdemeanors” at the time. It’s unclear why theoretical conflicts of interest would rise above Bill Clinton’s false testimony in court, to which he had admitted and for which he got disbarred, but YMMV.
Furthermore, we didn’t hear Warren et al warning Hillary Clinton of impeachment over the Clinton Foundation when everyone assumed she would win. The plan for the foundation if Hillary won, as it eventually emerged, was almost identical to Trump’s ambiguous plans — to turn over operations to offspring, in this case Chelsea Clinton. Had Republicans tried to offer a bill threatening “impeachment,” we would have heard screeches of “extremists,” “haters,” and who knows what else from the media, even though the Clinton Foundation has been part of serious questions about conflicts of interest ever since Hillary became Secretary of State and the FBI is still probing those arrangements.
Warren and her colleagues could have made their point by proposing a “sense of the Senate” bill, which would have made the point without tipping over into self-parody. Now, though, Trump and his supporters will dig in their heels and triple-dog-dare Democrats to follow through on this empty threat. That would be a mistake for them, compound the mistake that Democrats are making now, and create years of headache for Americans who want their president focused entirely on the toughest executive job in the country, if not the world. Let’s hope that Trump grasps this and finds a way to transfer the businesses to his family while putting his own assets into a blind trust.
In the future, Democrats might want to avoid taking advice from Eric “Otter” Stratton, even if they’re just the ones to do it.
Addendum: Amending the Constitution to require divestiture and blind trusts might be worth doing, but it wouldn’t apply to Trump in the immediate future, and might take a while to ratify at all. That at least makes a lot more sense than proposing a statute to do what Congress can already do on its own.