Debonaire attitude may Swamp Trump Himself
By Denys Picard
From Swamp land to quicksands.
Most articles I have read in the past week on the subject of Ethics and the future Trump administration, cite expert ethics lawyers or attorneys from both side of the political aisle, and all agree, that concerning this situation, we have just opened a Pandora’s Box. I was under the impression that all of this had already been taken care of, prepared to go into action as soon as Trump team had a Victory. But instead, it appears Trump has no intention of doing anything. As a Trump voter, I feel somewhat betrayed, but I believe I am not alone, since Eliza Newlin Carney explains :“Donald Trump vowed to “send the special interests packing,” but his lobbyist-stacked transition and business conflicts of interest may rile the very voters who elected him. ” (http://prospect.org/article/will-trump%E2%80%99s-administration-be-ethics-free-zone). And mmany Ethics lawyers cited from all avenues of the press, from liberal to conservative, from Republican to Democrat all appear to agree that something has to be done: Robert Kelner, a Washington ethics lawyer; Richard Painter, George W. Bush Chief Ethics Lawyer; Matthew T. Sanderson, a Washington lawyer and Republican; Kenneth A. Gross, a political ethics and compliance lawyer in Washington; were but a few cited by major newpapers.
They are two big concerns here, on my part, the capacity of the President to enrich himself from his Powers as President (which is not restricted by law or regulation, but against good management principal) and the capacity to enrich his close family. The President is given large authority and if he would be limited by any decision which could affect his wealth in anyway, he could not take any action. Yet, it is clear that the President cannot use his Office specifically or preferentially to enrich himself. And this is now mixed with tentative appointments, nepotistic in nature, which would give rise to further appearance and potential conflicts of interests, appointing his Son-In-Law, Jared Kushner. This is interesting because some law experts insist that the anti-nepotism rules don’t prevent the President to nominate someone from his family as defined by the clause in question, which are 1st and 2nd degree relatives.
On the other hand, H.M.Volokh explains, in discussing the power to appoint vested in the President, in THE TWO APPOINTMENTS CLAUSES: STATUTORY QUALIFICATIONS FOR FEDERAL OFFICERS the following: “Probably the most important concern was that appointments not be used to aggrandize the individual doing the appointing: The appointer should not grant offices to increase his own power, reward his supporters, or give favors to his friends or relatives.” And… “…Efficiency: The task of appointing officers should not cause the government to grind to a halt…”.
Even an unfamiliar person with the finer science of the law, such as myself, immediately pinpoints that insisting to appoint his Son-in-Law as Council, Mr Trump is in a manner seeking self-aggrandizement from access to a network that was not elected, and by re-introducing tribal structures in a setting where they should be absent. And the multitude of potential conflicts of interests that have not been addressed but for which solutions have not even been imagined, could create, eventually, a complete halt of government.
The capacity for Congress to limit the choice of the President in appointees is protected by Constitution enumerated powers which were clarified, consolidated but also nuanced by a Supreme Court edict, as cited in 1838 by Federal Attorney General Benjamin F. Butler in the brief concerning President Andrew Jackson to appoint or dismiss Higher and Lower officers of the executive Branch. Through the Principal of Canonical Law that affirms the President must be given the capacity to chose with Scope and Judgment the best person to fill an appointment. Therefore, according to some counsel opinions, the only restriction becomes the conflict of interest posed by the appointee from the family getting a salary delivered by the signature of the Secretary of the Treasury. In the early conception of anti-nepotism law, the main considerations was the State delivering salaries to the extended family and the incompetence of the appointed family member. If the appointee refuses a salary, then it appears, he can be appointed if he meets the competence test. Yet, this is not Supreme Court opinion, simply some counsel’s opinion.
A parentheses, here, concerning the concept of Canonical in the context of Law of the Land. It is a qualitative or descriptive rarely used in common language discussion concerning the Constitutional powers of the different branches. Gerard Magliocca at concurrentopinions.com gives a concise description of Canonical Statutes of US Law and extra-canonical text. A statute is canonical when it is so entrenched and fundamental to the Constitution that it is considered indissociable of it, and therefore not subject to repeal. For example: The social security act of 1935, the civil rights act of 1964, the Voting rights act of 1965. Extra-canonical text is explained as important references without the weight of the statutes but compose a body of text that completes the spirit of our laws and values as to inform the Supreme Justices in their consideration. Outside of this, and not covered by Gerard Magliocca, are Canon edicts, that are a mosaic of text that precede the Creation of the Country but were the base of evolution of all the Philosophy of Western Law. Some of these documents were more often cited in the Supreme Court earlier in creating a base of references, in their precedence, as to anchor the concept as expressed in the Constitution. For example, think of the Magna Carta, it is cited, or some parts of it, which assist in determining the meaning of the text of the Constitution, as Canon.
For example: “It is a canon of interpretation that real effect should be given to all the words of the Constitution. P. 272 U. S. 151.”
This is important, as the powers and limitations to Appoint by the President in the enumeration of his Constitutional powers has been characterized to some extent by Supreme Court Canon. In this specific context, it was because of the Overlap with the Enumerated powers of Congress to Affirm or Reject the Appointment. This shared the duties to appoint for the Executive in the President’s person, as to assume responsibility, and for Congress, in security.
Volokh herself quotes the ample use of the Canonic origin of the Laws decided upon for the Constitution during the Constitutional Convention when she explains (from reference 89: “…See Theodore Y. Blumoff, Separation of Powers and the Origins of the Appointment Clause, 37 SYRACUSE L. REV. 1037, 1061 (1987) (“When one examines the history of the Appointments Clause, . . . one finds no evidence of shared convictions or purposes.”); id. at 1062 (“[R]epresentatives in the Convention had almost as many ideas about the rightful locus of the appointing prerogative as there were representatives.”). As Blumoff is quoted: “The Representatives at the Convention had almost as many ideas…”….much of these ideas were from the tradition of western law at that time and if they made their way in a majority opinion of the Supreme Court later, and cited as a precedent down the road, they became part of the canonical curriculum.
The problem is that the President is, as an employee, under the obligation of other ethical dispositions where he cannot enrich, through his position, members of his family, as defined by the same criteria as above mentioned, and members of his family cannot enrich themselves on the basis that their relative is the President. And this is where most ethic experts appear to have missed part of this complex puzzle. Congress will not look at any ethical disposition individually, but as an interrelated interdependent structure or web, and if all clauses concerning this situation are considered simultaneously, the President cannot appoint a member of his close family.
Secondly, there is a way to create a blind trust that has also not been considered by the expert. Not selling the assets, and creating a parallel structure through leveraging. Neutralizing the profits from Trump inc with financial instruments, and producing revenue streams from the independent leveraged structure that will be independent of the nature of the assets held in Trump Inc. Naturally, after the end of Trump’s mandate, if any major laws have changed the appreciation of the value of the residing assets of Trumps Inc, then obviously this profit will emerge spontaneously at the dissolution of the parallel structure.
To the misery of Trump, I must admit that Sharia Finance, considered the most ethical form of Finance when practiced according to the rules, is recognized, even by Western World financial institutions as having the greatest degree of ethics.
Sharia finance structured products or inspired products are increasingly offered in North America and Europe, to serve the Muslim community, but also to help address Ethical concerns among Corporations and Institutions faced with important and difficult Conflict of Interest problems.
Now, using the word Sharia may not be very popular in the current context, and this is why I will expand on this. Sharia Finance, while originally emerged from some part of Sharia law, should be considered like Finance Engineering. Sharia Finance was born from the practice of the Zakât (the muslim imposed alms or charity). The sophistication of its structure was based on the fact that when giving, you should not know where the money went, because you were giving to God. This perpetrated modesty and prevented that the Zakät would be used to reimburse debdt, or put onself in value to the eyes of others, etc…As for those receiving, so that they could only understand the money coming from Allah, no one else. It therefore prevented the perception of inferiority or submission towards those that gave. Around this, a mechanism was developed of discretion and of different accounts so the origin of the money could not be traced to the Giver.
Using these structures now should note be viewed as borrowing religious structures, but simply using Financial Engineering to solve an Ethical problem. As the word algorithm, the mathematical tool of iteration, finds its origin in the mind of a Muslim mathematician by the name of Al-Khawarizmi, we should not prevent ourselves of using algorithms, without which software technology is rendered impossible. Now, the reason the Zakât structure has evolved to create other financial solutions, is because usury is not allowed in Muslim culture. This was addressed simply, earlier on, when Muslim Civilization was closed on itself. But as the Muslim world met the Western world, where interests are a central component of the economies, Islam culture had to create increasingly sophisticated solutions to address and allow access to many forms of transactions and investments where interests had a role.
Here is where knowledge that could recreate such a structure exist, because Islam does not allow usury, therefore any interest revenue must be translated into a different form of revenue. For example, in Islam, traditional mortgages do not exist, because Muslims cannot receive or pay interest. So they created sophisticated structures where a product mimics and serves the same function as a mortgage, but no interest transaction are involved, the cash streams are interpreted as other forms of streams than interest to the eyes of Sharia Law and Western Finance and Fiscal authorities.
I am not suggesting that such structures for Trump would need to eliminate interests, but the nature of the structures are a clue to what can be created to neutralize, at least for the duration of the mandate, the short term gains born from conflicts of interests or apparent conflicts of interests with members of his family, and allow to minimize the conflicts of interests, related to the decisions of the President, their father. Naturally, this structure, together with Trump Inc would both need to be in a Blind Trust.