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Analysis

How Foreign Influence Can Corrupt a President. Legally.

Close this loophole.
(Illustration: Renzo Velez / POGO)

When Donald Trump made Saudi Arabia his first foreign destination as president and received a royal welcome, do you think it might have crossed his mind that his ultrarich hosts were people with whom he could do business—not only during but after his presidency?

When he stood beside Russian President Vladimir Putin in Helsinki and seemed to take Putin’s word over that of U.S. intelligence agencies, do you think that, at least in the back of his mind, he might have seen Putin as someone with the power to reward him in the future?

When he caved to Turkey’s autocratic leader and exposed American allies to a Turkish military onslaught by withdrawing U.S. forces from part of Syria, do you suppose he was thinking at all of his business relationship with Turkey, already home to Trump Towers Istanbul?

Trump famously showed how a sitting U.S. president could use public office to promote his own company. For example, in the runup to his inauguration, he raised the membership fees at his Mar-a-Lago club in Palm Beach, Florida, from $100,000 to $200,000. Political supporters and favor-seekers patronized the place. Trump visited his own resorts, which charged the Secret Service for rooms used to protect him. He held onto an array of business interests, including a Washington hotel leased from the federal government. Foreign governments booked events at the hotel.

Far from being unthinkable, the fear that a president would sell out the country is older than the republic.

But one of the gravest conflicts of interest has received relatively little attention: the possibility that a president’s foreign policy could be influenced by thoughts of post-presidential enrichment.

It’s troubling enough that, when members of Congress look across the table at corporate lobbyists, they may see people they hope to work for down the road. People with the ability to one day pay and repay them.

It’s a much bigger problem if, consciously or otherwise, presidents regard foreign powers the same way.

Post-Presidential Emoluments

Trump’s presidency spotlights a loophole in the Constitution, a threat to national security, and a gap in ethics reforms under consideration in Congress.

The people of the United States shouldn’t have to worry that their president’s approach to foreign powers could be influenced by the possibility of profiting from those powers after leaving the White House.

Simply put, it should be illegal for former presidents, not just sitting presidents, to receive any substantial benefits from foreign governments.

The framers of the Constitution set out to prevent foreign powers from coopting U.S. officials. The Constitution’s foreign emoluments clause says no person holding “any Office of Profit or Trust” under the United States “shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Trump’s presidency spotlights a loophole in the Constitution, a threat to national security, and a gap in ethics reforms under consideration in Congress.

The precise meaning of the word “emolument” is a matter of legal debate, but it is reasonably understood to include profit, gain, or advantage.

The foreign emoluments clause applies to officeholders while they are in office. Frustrated in their efforts to apply it to Trump, congressional Democrats drafted bills to tighten the prohibition and make it easier to enforce.

However, those measures would do nothing about the potentially corrupting prospect of post-presidential foreign emoluments.

Under current law, before accepting direct or indirect compensation from a foreign government, retired U.S. military officers must get permission. They need approval from their branch of the armed services and from the State Department. That subjects their activity to at least a modicum of scrutiny.

Should we ask anything less of the commander in chief?

Or of other high-level government officials?

Drawing Lines

When it comes to eliminating the potential for divided or subverted loyalties, drawing the lines may be a challenge.

It’s straightforward enough to say former presidents shouldn’t do business with, for instance, the government of Russia or its leader. But how about Russian oligarchs who might be proxies for Putin, or Chinese companies that might be acting as extensions of the Chinese state?

What about private ventures, such as construction projects, that need approval from foreign governments?

What about transactions involving corporate shells, or benefits showered on the spouses or children of former presidents?

Congress should take care that any reforms it enacts are not easily circumvented. It should also take care not to overreach. It should be able to draft at least some sensible distinctions.

We should have no illusion that only international conflicts of interest matter. Presidents can alter the fortunes of every domestic interest and industry—from farms to factories and cyberspace, from finance to pharmaceuticals, from oil fields to renewable energy—and each of those, in turn, has myriad ways to coopt presidents.

But one set of problems shouldn’t distract from another, and foreign emoluments pose special dangers.

A ban on post-presidential foreign emoluments would need clear and workable means of enforcement, including the ability of the Justice Department to pursue profound penalties.

Beyond whatever good works they subsidize, each show of foreign largesse could send a message to future presidents: If you play your cards right, you, too, could reap the benefits.

“Emoluments” should be defined—or redefined—broadly, to encompass direct and indirect benefits.

There’s no reason to prohibit highly diluted foreign interests, such as investments in diversified mutual funds with stakes in companies that do business with foreign governments, or purely rote grants by foreign governments, such as visas for travel or copyrights for books.

But a ban would prove all too porous if, for example, it allowed gifts to former presidents’ personal enterprises, such as presidential libraries and foundations.

Beyond whatever good works they subsidize, each show of foreign largesse to a library or foundation could send a message to future presidents: If you play your cards right, you, too, could reap the benefits.

Exempting President Joe Biden and former presidents from new restrictions would be a matter of fairness: They didn’t sign up for the presidency under such constraints. At minimum, former presidents would be beyond prosecution for post-presidential emoluments already received.

But neither Trump nor Biden should get a pass if after the restrictions were enacted they ran for and won another term.

Unless and until Congress imposes a ban, candidates for the nation's highest office should impose one on themselves. The public should call on candidates to make such a pledge, and the press should ask whether they will.

Permanently forgoing foreign emoluments does not seem too much to ask of anyone who asks to be entrusted with the presidency.

Premonitions

Trump the international businessman might have brought some of these issues into sharper focus—after all, he secretly pursued dreams of a Trump Tower in Moscow while running for president—but they have a long history.

Far from being unthinkable, the fear that a president would sell out the country is older than the republic.

At the Constitutional Convention, delegates were concerned that presidents could be “seduced by promises of future opulence by foreign powers, and give over their country for their own advantage,” Zephyr Teachout, a legal scholar who has run for public office, wrote in the Cornell Law Review.

Learning from History

Jimmy Carter

No one would accuse Jimmy Carter of having been seduced by promises of opulence.

He lives in Plains, Georgia, and, long after leaving the White House, was awarded the Nobel Peace Prize for, among other things, advancing democracy and human rights.

Permanently forgoing foreign emoluments does not seem too much to ask of anyone who asks to be entrusted with the presidency.

But Carter has raised money in a way that has served as a model for later presidents.

His Carter Center has received funding from many foreign governments.

Early in the center’s history, one showed up as giving $500,000 or more: Saudi Arabia.

That’s according to a disclosure covering the years 1982 to 1988.

Countries that have given $1 million or more since the center was established include Belgium, Canada, Denmark, Germany, Ireland, Japan, the Netherlands, Nigeria, Norway, Oman, Qatar, Sudan, Sweden, Switzerland, the United Arab Emirates, and the United Kingdom, according to a 2019 disclosure.

“We welcome and have accepted donations from foreign governments interested in improving the welfare of the world’s poorest people,” Phil Wise, a vice president of the Carter Center, told the Project On Government Oversight (POGO).

When Carter lost his bid for reelection in 1980 and left office sooner than expected, no thought had been given to fundraising for his library and museum, Wise said.

Ronald Reagan

Ronald Reagan opened eyes to post-presidential possibilities in 1989 when, after leaving office, he traveled to Japan. A Japanese media company reportedly paid him $2 million for a series of public appearances.

That was corporate money, not government money, and closing the emoluments loophole wouldn’t ban it. But the visit showcased and rewarded Reagan’s support for causes important to Japan—his defense of free trade in an era when many Americans were worried about a flood of Japanese imports and a wave of U.S. asset sales to Japanese investors.

While in Japan, Reagan defended Sony’s controversial purchase of Columbia Pictures, an iconic Hollywood studio.

George H.W. Bush

Reagan’s vice president and successor George H.W. Bush presided over the Gulf War, which was waged to reverse Iraq’s invasion of oil-rich Kuwait and prevent Iraq from seizing Saudi oil fields. (The oil fields were and remain important to the United States.)

Kuwait later gave at least $1 million to Bush’s presidential library, the Washington Post has reported.

After leaving office, Bush joined the Carlyle Group, a Washington-based investment firm. On behalf of Carlyle, he traveled to Saudi Arabia and met with members of the royal family, Craig Unger wrote in his book, House of Bush, House of Saud.

Others at Carlyle followed up by successfully soliciting Saudi investments, Unger wrote.

“According to a source close to the Saudi government, the royal family viewed investing in the Carlyle Group as a way to show their deep gratitude to President Bush for defending the Saudis in the Gulf War,” Unger wrote.

That wasn’t all.

According to the Washington Post, the Saudi royal family gave about $10 million toward Bush’s presidential library.

Bill Clinton

Bill Clinton’s post-presidency has revolved largely around his foundation, which supports his library in Arkansas, performs charitable works, has provided paychecks for Clinton associates, and has given Clinton an ongoing global platform.

The Clinton Foundation lists the Kingdom of Saudi Arabia among its supporters—with a donation in the range of $10 million to $25 million.

Other Clinton Foundation donors in the same bracket include Australia and Norway. One step down, in the range of $5 million to $10 million, donors include Kuwait, the Netherlands, and Irish Aid, part of the government of Ireland. In the range of $1 million to $5 million, donors include Qatar, Brunei, Oman, the United Arab Emirates, and units of the German government.

The Clinton Foundation disclosed information on donors in 2008, when Hillary Clinton was facing Senate confirmation to become secretary of state. If not for the former first lady’s own career, much of the funding might have remained opaque.

Contributions to the Clinton Foundation have declined sharply since Hillary Clinton lost the 2016 presidential election.

The most recent annual total shown on the foundation website, $18.9 million in 2019, was down 91.3 percent from $217.8 million in 2014, before the scrutiny of the 2016 presidential race.

The decline raises the question: Were donors more interested in sponsoring the work of a former a president—or currying favor with a future one?

George W. Bush 

Clinton’s successor, George W. Bush, also established a foundation, and it has tapped some of the same foreign funding sources.

The George W. Bush Center’s website includes a database of donors called the “Freedom Registry” that is searchable by name. Search results include the Royal Family of Saudi Arabia, the United Arab Emirates, the Australian Embassy, the Embassy of the State of Kuwait, and His Excellency Sheikh Salem Abdullah Al-Jaber Al-Sabah—presumably Kuwait’s ambassador to the United States.

Also, “Consulate General of Russia.”

Both the George W. Bush Center and the Clinton Foundation list CEFC China Energy Company (assuming that’s what Bush’s registry means by “China CEFC Energy Company”).

At its height, CEFC China Energy “aligned itself so closely with the Chinese government that it was often hard to distinguish between the two,” CNN reported.

The Biden Family

CEFC China Energy figured prominently in news reports published during and since the last presidential campaign about Hunter Biden’s pursuit of international business deals.

After Joe Biden had left the vice presidency, his son Hunter and brother James tried to forge a joint venture with the Chinese firm, according to news reports.

The head of the firm gave Hunter Biden a 2.8-carat diamond, the New Yorker reported.

In 2017, a subsidiary of the Chinese firm sent Hunter Biden’s law firm $100,000, according to a report by Senate Republicans. Days later, the same CEFC subsidiary wired $5 million to an entity of which Hunter Biden’s law firm had at one time been half-owner, the Senate report said. Subsequently, that entity sent payments to Hunter Biden’s law firm totaling about $4.8 million, the Senate report said.

Joe Biden’s campaign denied he was involved.

“Joe Biden has never even considered being involved in business with his family, nor in any overseas business whatsoever,” Biden campaign spokesman Andrew Bates said in an October 2020 statement quoted in news stories.

Efforts to reach Hunter and James Biden for this article through the White House press office and a lawyer who reportedly represents Hunter Biden, among other means, were unsuccessful.

Barack Obama

Barack Obama’s foundation lists thousands of contributions but none from foreign governments. That shows a former president can do without them, and it suggests Obama has some concern about them.

Even so, the Obama Foundation seems to be keeping its options open.

“It is not the current policy of The Obama Foundation to accept donations from foreign governments,” a spokesperson for the foundation told POGO in May.

The spokesperson declined to explain why.

Transparency

The foundations of Reagan, George H.W. Bush, Clinton, and George W. Bush did not respond to inquiries for this article or provided no substantive information on donors in response to inquiries. In addition, the offices of Clinton, George W. Bush, and Trump did not respond to inquiries.

While the Carter, Clinton, George W. Bush, and Obama foundations disclose lists of donors on their websites, we found no similar disclosures for the Reagan and George H.W. Bush foundations.

The dangers of any conflicts of interest are compounded when the conflicts go undisclosed.

The Trump Way

Trump’s company has said that, while he was president, it donated to the U.S. Treasury profits it made from foreign governments.

But if there was any doubt about Trump’s interest in commercially exploiting the presidency, he couldn’t have dispelled it more clearly than in 2019, when he chose one of his own golf resorts over other options as the site for an international summit.

The plan would have given the financially struggling Trump National Doral Miami free publicity on a global scale and an infusion of revenue.

It was a blatant example of self-dealing, and, confronted with criticism, Trump backed down.

It was also part of a broader picture.

You could have the best hotels in the world, Trump told Kim.

As president, Trump embraced even the least embraceable foreign leaders, such as North Korean dictator Kim Jong Un.

In a charm offensive heavy on flattery, Trump professed “love” for Kim and urged Kim to trade his nuclear-armed military buildup for beachfront real estate development.

“You could have the best hotels in the world,” Trump told Kim.

Internet wags joked about a Trump Hotel Pyongyang.

Before Trump entered the White House, he had a high regard for Saudi spending power.

“I love the Saudis,” Trump said in 2015 when he kicked off his campaign at Trump Tower in New York, as CNBC has noted. “I make a lot of money from them,” he said at a campaign rally.

President Donald Trump receives the Order of Abdulaziz al-Saud medal from Saudi Arabia's King Salman bin Abdulaziz al-Saud at the Saudi Royal Court in Riyadh on May 20, 2017.
(Photo by Mandel Ngan/AFP via Getty Images)

In 2018, when the CIA reportedly concluded that Saudi Crown Prince Mohammed bin Salman approved the killing of Washington Post columnist Jamal Khashoggi, Trump resisted holding the crown prince accountable. He also vetoed Congress’s effort to block U.S. arms sales to Saudi Arabia.

(The Biden administration later released an intelligence report that described the crown prince’s role differently. The report concluded that the crown prince approved an operation to “capture or kill” Khashoggi.)

Trump might have decided that it was in the U.S. national interest to look the other way. He cited the importance of Saudi oil and the value of Saudi military purchases.

Trump denied having any financial interests in Saudi Arabia, but that didn’t tell the whole story.

While running for president, Trump registered several companies whose names suggested he was laying the groundwork for business ventures in Saudi Arabia, the Washington Post has reported.

Is it too cynical to imagine that a U.S. president could ever put self before country?

Trump’s former lawyer and fixer turned bitter foe and admitted felon Michael Cohen doesn’t think so.

Trump saw what Russian wealth could do for him, Cohen recounted.

For example, in 2008, a Russian billionaire bought a Palm Beach property from Trump for $95 million—more than double the amount Trump had paid for it four years earlier. Trump viewed the Russian buyer and other Russian oligarchs as fronts for Putin, Cohen wrote in his book, Disloyal: A Memoir.

Cohen worked on plans for a Trump Tower in Moscow and said in his book that the Moscow project would have required Putin’s blessing.

“I knew that was partly why Trump was praising the Russian president to the heavens” during the 2016 campaign, Cohen wrote.

“The reality was that Trump saw politics as an opportunity to make money, and he had no hesitation in bending American foreign policy to his personal financial benefit.”