A Constitutional Amendment to Force Presidents to Divest?

The election of Donald Trump as President of the United States has created unprecedented dilemmas and broken a number of norms that put the country into uncharted territory.

Not least among these is Trump’s sprawling international businesses that create massive conflicts of interest in almost everything he does. Trump has never been above making a deal in his own financial interest, and he has the opportunity to use the instruments of foreign policy to smooth the way for his properties, lenders and business partners all around the world. Moreover, officials from other countries have already begun staying at Trump hotels in order curry favor with in the incoming president. The traditional way for a president to overcome this problem is to place all his holdings in a blind trust–but even if Trump were to do a blind trust properly, the majority of his wealth isn’t in liquid assets but in real estate. He would still know, by and large, where and how he stood to benefit. But, of course, Donald Trump has chosen not to even have the fig leaf of a blind trust, instead handing his businesses over to his children–who are also on his transition team and present at meetings with foreign leaders. The potential for overt corruption on a par with developing world kleptocracies is enormous.

But the case of Trump is merely the apex of a growing problem. There was concern in 2012 over similar issues with Mitt Romney given his diversified wealth of investments and relationships with global finance.  Hillary Clinton’s involvement with the global Clinton Foundation raised questions about the potential for favorable access in exchange for donations to the foundation. Neither Clinton’s nor Romney’s case even begins to approach the crisis for clean governance that Trump does, but the issue of global presidential connections is going to become more prominent as the world shrinks and candidates grow wealthier.

Astonishing as it may seem, none of this is actually illegal because the president himself is not bound by the conflict-of-interest laws that apply to every other member of the Executive Branch. That’s understandable because the President can’t simply recuse himself from dealing with any countries from which he might stand to benefit somehow personally.

But the President is barred from taking “emoluments” or gifts, unless explicitly authorized to do so by Congress. And therein lies the challenge. The Republican Congress is unlikely to hold Trump accountable even if the corruption is overt and explicit. Moreover, Trump’s vast holdings combined with his refusal to release his tax returns mean that it would be difficult if not impossible to determine whether foreign officials had given him gifts, or what might even constitute a gift. Every time a foreign official stays in a Trump hotel it could be considered an emolument in exchange for access, which would be blatantly illegal but also practically unenforceable.

This is a problem that not even a blind trust can solve. Creating blanket conflict-of-interest laws would hamstring the presidency, but the current laws about emoluments are clearly inadequate.

This situation may call for a Constitutional amendment requiring presidents to liquidate any assets over a certain dollar amount for the duration of their term in office. That might seem like an impossible task right now, but if Trump engages in overt corruption that destroys his presidency, Republicans and Democrats alike might see it as in their interest to fix the problem while dissuading any future Trump-like figures from seeking office for the purpose of self-enrichment.

It’s a long shot, but the problem isn’t just about Trump. It’s structural, and it needs a structural fix.

David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.