RACHEL MARTIN, HOST:
Ethics lawyers have been decrying Donald Trump's potential conflicts of interest for months, saying as soon as he's in office he'll be in violation of the law. Now that Donald Trump is president, some of those lawyers have filed a lawsuit alleging just that.
STEVE INSKEEP, HOST:
They're arguing that payments made by foreign governments to Trump-owned businesses around the world violate the Constitution. The president's son, Eric, who is executive vice president of the Trump Organization, told The New York Times this suit is, in his opinion, purely harassment for political gain.
MARTIN: Among those filing suit are Norman Eisen and Richard Painter. You've heard them frequently on this program in recent weeks. They were top ethics lawyers in the Obama and George W. Bush White Houses, respectively. They join us now. Gentlemen, welcome back.
NORMAN EISEN: Good morning.
MARTIN: We should say up front the center of your suit is the Emoluments Clause of the Constitution, which some of our listeners may have gotten themselves familiar with reluctantly. It says, essentially, members of the U.S. government can't receive gifts from foreign states. How is Donald Trump violating that?
EISEN: Rachel, the founders of our country were so worried about the prevalent practice in the days when the United States was established of foreign government sovereigns giving cash and other benefits to leaders - in this case, the worry was that foreigners would give it to the president of the United States and distort his judgment - that they put that limitation in our Constitution. It's the original conflict law of the United States. Donald Trump is violating it because he has an enormous global empire of businesses that is reliant on emoluments, on foreign government cash and benefits. And it poses such a profound threat - the rents he receives, the apartments and condos he sells, the loans, enormous loans that he has.
MARTIN: But he has said that he is putting all his businesses in the trust - in the hands of his sons.
EISEN: He said he's putting operations in the hands of his sons. He's hanging on to the ownership of these businesses. So it's as if he's handing his wallet to his sons to hold. It's still his wallet. And that makes him in violation of the Constitution. And we thought it was important to act.
MARTIN: So, Richard Painter, what's the solution? What would satisfy you?
RICHARD PAINTER: Well, there are a number of things that he can do to resolve this problem. One is that the Constitution provides that he could get consent from Congress to receive some of these payments. He would only have to go to a Republican-controlled Congress and get consent. And he could do that. But he knows that they're going to ask him for information. They're going to ask perhaps to see the tax returns. They're going to ask whether there's Russian money in his business enterprise.
MARTIN: But are they? I mean, if they just gave permission, would that satisfy you, just the act of asking Congress for an OK?
PAINTER: Well, that would satisfy the Constitution. But they aren't going to do that. The Republicans in Congress are only going to do so much for him. And that is what is so tragic here, that he doesn't even trust the Republicans in Congress to sit down and say, OK, let's figure out which of these emoluments I can keep and which ones I can't. I will disclose to you what I have and what I don't. And he won't even do that because...
INSKEEP: Gentlemen, you've said if - I just want to pick up something here. You've said in the past on the program that you wish that the president would put everything in a blind trust, give it to an independent trustee to manage and he could get the money back later. But I want to ask a couple of things about the argument that you're making. First, you're saying that these business transactions amount to a bribe. That's what emoluments basically are. But the president's lawyers have said this isn't a bribe. This is an ordinary business transaction. It's a hotel bill somewhere. It's a loan. Why is an ordinary business transaction a bribe?
PAINTER: This is a means of preventing a bribe. I mean, that's the problem. The founders knew that foreign governments were trying to influence our office holders. And they said there are going to be no payments allowed, no benefits from foreign governments allowed whether or not someone can prove there's a bribe. It is unconstitutional unless there's permission from Congress to receive it and Congress has enacted a foreign gift statute that says people can receive gifts from foreign governments up to a certain amount. If Trump wants more, if the president wants more, he could go and ask or, better yet, sell the businesses, turn it over to a blind trustee so we can eliminate this and the other conflicts of interest...
INSKEEP: Norm Eisen, very briefly.
PAINTER: ...And be an effective president.
EISEN: Well, the whole point of the Emoluments Clause is it covers all revenues, all payments. You don't have to show a bribe because of the presumptive bias that these sums create.
INSKEEP: The other question here is isn't this a matter to be addressed by Congress either by voting, as you've said, or voting to impeach the president if he doesn't do anything? Instead, you guys have filed a lawsuit. We should remind people that you have to have standing to file a lawsuit. You have to be able to show that you're suffering some harm. Do your - does your organization have standing to sue the president?
EISEN: The organization does have standing. There's a long line of cases stemming from a Supreme Court decision of - Havens Realty is the name of that case. And in that case you had an organization that had a community mission to help folks in the community. There was some unconstitutional conduct, and the organization had to divert its resources to protect the Constitution. That, of course, is exactly what the organization - nonpartisan - that Richard and I chair, CREW, has had to do here to deal with Mr. Trump's unconstitutional conduct. We hope that Congress will authorize each and every one of these transactions. But there's been no sign of it. There's been no request for it. And we can't just fall into a parallel reality where a president of the United States violates the Constitution day one, hour one, minute one and nobody does anything.
MARTIN: I have two quick questions. How much of this is about creating a mechanism whereby Donald Trump would be forced to release his tax returns?
PAINTER: The - well, that is one of the ways in which the judge could find out what's going on with respect to the emoluments. The focus here, though, is the unconstitutional emoluments that he is receiving without consent of Congress. And I'd much rather have a judge make those decisions now than two years from now or whenever have Congress try to impeach the president.
MARTIN: Real quick, Norm Eisen. Is this a political hit job, as Trump's camp alleges?
EISEN: It's a nonpartisan action. Richard and I have defended some of Trump's nominees on ethics and other grounds - Mr. Tillerson, Mr. Kushner. It is not political.
MARTIN: Former White House ethics lawyers Norman Eisen and Richard Painter. Mr. Eisen served under President Obama, Mr. Painter under George W. Bush.
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