March 16, 2017

Democratic Senators Ask Ethics Watchdog if Trump Trademarks Run Afoul of Constitution and Anti-Bribery Laws

WASHINGTON - After President Trump and the Trump Organization were granted 38 trademarks by the Chinese Government, U.S Senators Tom Udall, Richard Blumenthal (D-CT) and a group of 17 other senators wrote the Office of Government for guidance on whether the award betrays ethics laws, policies, or established norms. The senators also asked whether or not the government ethics watchdog was even consulted before the trademarks were sought or granted.

"We are alarmed that the awarding of valuable trademarks by the Chinese government to President Trump and the Trump Organization in exchange for favorable policy decisions may run afoul of the Emoluments Clause of the Constitution and federal anti-bribery laws," the Senators wrote.

Last month, after news first broke that the Chinese government had awarded the Trump Organization a trademark that may be worth billions of dollars, Blumenthal led a group of thirteen Senators in calling on President Trump to take immediate action to resolve conflicts of interest that are putting him in violation of the U.S. Constitution. The full text of the Senators' letter is available here.

The Trump Organization was awarded a trademark to market the Trump name for profit in China shortly after President Trump spoke with President Xi Jinping and affirmed the continuation of the United States' One-China policy. President Trump had sought this designation for years to no avail, and it was only after winning the presidency that he was able to secure the lucrative trademark.

The U.S. Constitution forbids the President and other office holders from accepting foreign emoluments without authorization by Congress. President Trump's ongoing failure to resolve his conflicts of interest and divest himself from his business entanglements has put him in a position of violating this core principle.

In addition to Blumenthal and Udall, the letter was signed by U.S. Senators Bernie Sanders (I-VT), Jeanne Shaheen (D-NH), Ron Wyden (D-OR), Sherrod Brown (D-OH), Elizabeth Warren (D-MA), Tom Carper (D-DE), Jack Reed (D-RI), Chris Coons (D-DE), Jeff Merkley (D-OR), Edward J. Markey (D-MA), Ben Cardin (D-MD), Maggie Hassan (D-NH), Patty Murray (D-WA), Kirsten Gillibrand (D-NY), Debbie Stabenow (D-MI), and Maria Cantwell (D-WA).

The full text of the letter is copied below.

Dear Director Shaub,

We write to express concern over recent news that the Chinese government has awarded preliminary approval to President Donald J. Trump for 38 trademarks, 35 of which will be awarded to him personally,[1] and to request your interpretation and advice regarding the applicability of federal anti-bribery laws to this award.

As you know, the President is exempt from 18 U.S.C. §§202-209, the federal conflict-of-interest statutes, although your office has previously recommended that the President should act as if bound by this law as a matter of policy.[2] The President is, however, bound by 18 U.S.C. §201, the federal law covering bribery and illegal gratuities to public officials, which reads in relevant part:

"(b) Whoever- ...
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:
(A) being influenced in the performance of any official act;
... shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States. ...

(c) Whoever-
(1) ...
(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;
... shall be fined under this title or imprisoned for not more than two years, or both."

The grant of a trademark is ordinarily a ministerial act, but the expeditious approval of more than three dozen trademarks by China's Trademark Office, after "years"[3] of efforts by Mr. Trump's legal team, appears to be out of the ordinary. Many of us wrote with concern to President Trump last month regarding the grant of an enormously valuable trademark to the Trump Organization, which President Trump owns, on February 14, just days after the President spoke to Chinese President Xi Jinping and affirmed that the United States would continue the One-China policy. As you may know, in China, the ruling Communist Party exerts enormous control over state agencies, including the State Administration for Industry and Commerce, in carrying out official actions such as the grant of trademarks.[4] We are alarmed that the awarding of valuable trademarks by the Chinese government to President Trump and the Trump Organization in exchange for favorable policy decisions may run afoul of the Emoluments Clause of the Constitution and federal anti-bribery laws.

The mission of your Office includes "interpreting and advising on ethics laws [and] policies," and your Office has previously "provided advisory or regulatory guidance concerning the relationship between the bribery law [and] the illegal gratuities statute." As such, we ask for your guidance on the following questions:

Was the Office of Government Ethics consulted regarding the applicability of ethics regulations and laws to the grant of trademarks to the Trump Organization and to President Trump by the Chinese government?
If so, did you advise them that you were comfortable with their course of action in light of ethics laws, policies, and established norms, including 18 U.S.C. §201?

Thank you for your attention to this matter.