In this time of fake news, Trump tweets and Russian hackers, in the midst of a presidential transition that looks like casting for a disaster movie — in short, a storm of baffling and disturbing events — Elijah Cummings has a big job on his hands: explaining to American citizens why the Republican businessman they elected as president should give up his businesses.
The Baltimore congressman, the ranking Democrat on the House Oversight and Government Reform Committee, hopes to conduct a forum on the matter this week, a kind of teach-in on the emoluments clause of the U.S. Constitution, which bars any official from accepting salary, gift or profit from a foreign power.
"We have to guard the democracy," Cummings says. "If we had a Democrat as president, who owned 111 companies in 18 countries, I'd go to that president and say, 'Look, you gotta deal with this.'"
And by "dealing with this," Cummings means letting go, divesting and turning all assets into a blind trust to avoid conflicts of interest and accusations of corruption.
Donald Trump, the billionaire tycoon and president-elect, promises a news conference on Thursday to announce that he "will be leaving my great business in total to focus on running the country." In a series of tweets, he said his children would attend the event, leading to speculation that he intends to have his family take charge of his companies — indeed, 111 in 18 countries and territories, according to The Washington Post — while he presides over the nation.
That might sound acceptable, but it stops far short of the financial propriety of previous presidents and, according to some constitutional scholars, would leave Trump in violation of the emoluments clause.
In an essay for The Atlantic, legal and governance experts describe the clause as "the original financial conflict of interest law of the United States, and the only one embodied in the Constitution."
The authors are Norman Eisen, former ethics counsel to President Barack Obama, and Richard Painter, who served as White House ethics counsel during the George W. Bush administration. Eisen and Painter argue that, short of divesting of his companies and placing all assets in a blind trust, with no involvement by his adult children, Trump will be in violation of the Constitution "the moment he takes office — and the plan for his business that he hinted at on Twitter does not solve the problem."
Painter is among witnesses that Cummings hopes to call to his forum ahead of Trump's news conference. The congressman wants to gather testimony from leading constitutional scholars — Harvard's Laurence Tribe, among others — in support of these foundational principles: The president cannot serve himself while serving the nation, and the president is not above the law.
"The only way he can properly do this," Cummings says of Trump, "is to fully divest, to avoid even the appearance of a conflict of interest." The problems of turning his business operations over to his children are inherent, Cummings says, and profits from business deals, some of which involve foreign governments, will continue to flow back to Trump. The solution, he says, is divestiture and a blind trust, managed by a neutral party.
Cummings' forum could be critical to getting Americans — Republicans, Democrats, Trump lovers, Trump haters — to understand what's going on here.
The argument Painter, Eisner and others make might be legally impeccable, but it apparently sounds extreme to many.
Consider a recent Bloomberg News poll that asked the following question: "Donald Trump said he plans to take himself completely out of business operations as part of becoming president. His adult children may be involved both in running the business and in serving as advisers to him as president. Do you think Donald Trump should sell all his businesses so that neither he nor his family could potentially profit from actions he takes as president, or does that go too far?"
Sixty-nine percent of respondents said that action would "go too far." Just 26 percent thought he should sell his businesses.
But, at the same time, 67 percent said Trump must choose between being president and being a businessman.
Getting that level of public sentiment in sync with an understanding of the emoluments clause — basically, a civics lesson that an overwhelming majority of Americans never had until Trump came along — is the task before Cummings and those on the side of the Constitution. And this at a time when so many people apparently accept fake news and reject facts as partisan opinion.
"I want to be very careful about this and approach it in a bipartisan way," says Cummings. "I want to include Republicans and Democrats."
But so far, congressional Republicans, including the once-critical, now-acquiescent House Speaker Paul Ryan, have shown little interest in challenging Trump. "This is not what I'm concerned about in Congress," Ryan said the other day.
That kind of talk, says Cummings, normalizes the unacceptable. And there's been too much of that already.