The same pundits who predicted that Donald Trump would never win the election tell us now that he cannot possibly lose the Electoral College. They have almost entirely ignored the unequivocal statements of various legal, political and ethics scholars that the Electoral College should not elect Donald Trump on Monday unless his assets are liquidated and placed in a truly blind trust managed by an independent trustee. Nothing could be further from what Alexander Hamilton and the Founders intended than for the Electoral College to rubber-stamp the results of the Nov. 8 election.
The Founders created the Electoral College to protect the nation — an untested democracy — from itself. In fact, notwithstanding the frustration of a system that could elect a candidate with 2.5 million fewer votes than Hillary Clinton, the Electoral College system may be one of the Constitution's most brilliant concepts. With deliberate measure and compromise, the Founders created a decentralized, layered election process in which the public would vote for its president but each state would be represented in the Electoral College, which would ensure the office would not be held by someone who is unqualified, who is a demagogue, or who is subject to the influence of a foreign power that might use bribes, gifts or other "emoluments" to take advantage of a president. Texas elector Christopher Suprun suggested that Donald Trump ticks all three of these boxes when he announced recently that he would not vote for Mr. Trump and called on other Republican electors to unite behind an alternative candidate.
It is with regard to this last requirement that legal and ethics scholars are sounding an alarm regarding Donald Trump. The Electoral College, as Hamilton put it, should prevent foreign nations from "…raising a creature of their own to the chief magistry" of the United States. Our country has never elected a president with a $300 million debt to the state-owned Bank of China, a $364 million debt to German's Deutsche Bank, and business deals in countries around the world where government help is often required.
The nonpartisan, nonprofit Sunlight Foundation has expressed concern about Donald Trump's conflicts of interest, noting that since Election Day, he has "mixed the business interests of the Trump Organization with those of the American people" and that "the potential for the most corrupt administration in history is clear." In a Nov. 17 letter to Mr. Trump, the Sunlight Foundation and others, including the chief ethics lawyers for Presidents George W. Bush and Barack Obama, urged Mr. Trump to liquidate his assets through a "genuine blind" trust or by placing the proceeds in treasury bills or diversified mutual funds. The letter noted that while severing his relationship with his businesses might cause personal discomfort, "there is no acceptable alternative [and] failure to follow this course of action will create conflicts of interest of unprecedented magnitude."
Ethics and constitutional law scholars have raised concern that as president, Mr. Trump would be in violation of the "emoluments clause" of the Constitution preventing government office holders from receiving any gift, bribe or financial gain from a foreign government. The Founders were so concerned about the influence of "foreign powers," the penalty for any violation of the clause was the most severe punishment possible: impeachment. Today, relevant questions have been raised regarding:
•Mr. Trump's enormous debt to foreign interests including the state-run Bank of China and Germany's Deutsche Bank, which is currently under Justice Department investigation;
•Mr. Trump's call with the president of Taiwan, given confirmation by the mayor of Taoyuan, Taiwan that there have been discussions with the Trump Organization about construction of luxury hotels and resorts in the city;
•Mr. Trump's discussion with the Argentine president, given his partnership with Argentinian investors in a Trump Towers project in Buenos Aires; and
•Ivanka Trump's participation in a meeting with the Japanese prime minister, as her company is in negotiations with the Japanese Sanei company in which the largest shareholder is the government-owned Development Bank of Japan.
These are just a few of the reasons constitutional law scholar Laurence Tribe has described Donald Trump as an "emoluments magnet" and stated that there is "simply no way short of absolutely liquidating all of his assets to prevent him from being a walking talking violation of the Constitution from the moment he takes the oath" of office. Mr. Tribe went on to state that "to vote for Trump in the absence of ... complete divestment … would represent an abdication of the solemn duties of the 538 electors."
Any effort to encourage electors to exercise their legitimate purpose to vet rather than rubber stamp might seem unprecedented, but what has not been unprecedented about this election? We already have Mr. Suprun calling on Republican electors to unite behind someone other than Mr. Trump. Further, this has happened before. In the history of our presidential elections, some electors have refused to vote for the candidates who won in their respective states. These mavericks are called "faithless electors," and there have been 157 of them in our national history. If one-quarter of this number of Republican electors abstains or votes for another candidate on Monday, Dec. 19, Donald Trump will not be elected that day.
The suggestion that the Electoral College not elect Mr. Trump is not a pro-Hillary Clinton plot. This is a Constitutional obligation. In his Time Magazine article, "The Electoral College Was Created to Stop Demagogues Like Trump," University of Virginia professor Michael Signer points out that "…this year's election, in particular, the candidacy of Donald Trump, provides [electors] with every reason to perform their job." For the sake of their country, and perhaps the salvation of their party, Republican electors could abstain or vote for a more qualified candidate without significant foreign debt and businesses.
Without any candidate receiving votes from 270 electors, the election would be thrown to the House of Representatives where Paul Ryan, no fan of Trump, and other nervous Republican representatives might decide to unite behind a more qualified, non-conflicted, less egocentric candidate prepared to obey the Constitutional emoluments clause and reasonable rules of transparency. It should be remembered that the first time the House had to pick a president in 1801, members had the wisdom to pick Thomas Jefferson.
The signers of the Nov. 17 letter to Donald Trump included the following statement:
"Mr. Trump, you were elected to the presidency with a promise to eliminate improper business influence in Washington, to break the stranglehold that commercial interests impose on government. There is no way to square your campaign commitments to the American people — and your even higher, ethical duties as their president — with the rampant, inescapable conflicts that will engulf your presidency if you maintain connections with the Trump Organization, including by maintaining ownership with control transferred to your children."
Even those most opposed to the Electoral College could reach the conclusion this year that the Founding conspirators knew exactly what they were doing. An unprecedented election? Most definitely. Unprecedented conflicts of interest and foreign debts and entanglements? Unquestionably. An unprecedented Electoral College? We'll find out on Monday.
Theodore G. Venetoulis, a businessman and former Baltimore County executive, is author of "The House Shall Choose," a book about the two times Congress has selected the president. His email is firstname.lastname@example.org.