A “constitutional cloud” hangs over President Donald Trump’s lease to operate a hotel out of the government-owned Old Post Office Building in Washington, D.C., according to a new government report.
The General Services Administration’s inspector general found Wednesday that the agency ignored the Constitution’s emoluments clauses when it reviewed the 2014 deal in light of Trump’s 2016 election win. The GSA had concluded in March 2017 that the hotel was not in violation of its lease, which forbids any benefits going to elected officials.
But according to the new watchdog report, lawyers at the agency did not investigate whether the Constitution’s domestic or foreign emoluments clauses posed a problem for a hotel owned by the president of the United States. The emoluments clauses prohibit federal officials from receiving any financial or material benefit from a foreign government, a U.S. state government or any part of the federal government. The report also found that there was no undue influence involved in the approval of the lease.
“We found that GSA recognized that the President’s business interest in the [Old Post Office] lease raised issues under the Constitution’s Emoluments Clauses that might cause a breach of the lease; however, GSA decided not to address those issues in connection with the management of the lease,” the inspector general report says. That decision, it continued, “leaves a constitutional cloud over the lease.”
Since Trump came into office, his Trump International Hotel in D.C. has been a source of controversy, as lobbyists, foreign governments and corporate executives have patronized the establishment in a bid to curry favor with the White House.
The report was the result of multiple requests to the inspector general’s office from members of Congress and good-government groups to investigate the management of the president’s lease. These requests largely came from congressional Democrats who were then in the minority in Congress. These members now control the oversight committees in the House of Representatives.
“This devastating new report from the Inspector General is proof that President Trump should have divested his business interests rather than ignoring the advice of ethics experts,” Rep. Elijah Cummings (D-Md.), the chairman of the House Oversight and Reform Committee, said in a statement.
Cummings added that the GSA has refused to provide documents he has requested on this issue for the past two years.
“President Trump stood in violation of the Constitution the moment he took office, and compounded the problem by improperly holding the lease on a government building,” Noah Bookbinder, executive director of Citizens for Responsibility and Ethics in Washington, a liberal watchdog group that filed complaints with the GSA over Trump’s hotel, said in a statement. “The corruption of the presidency has never been clearer.”
The GSA, which manages much of the government’s property, awarded the Trump Organization with a lease to run a luxury hotel out of the Old Post Office building in 2014 after a competitive bidding process. The president’s company opened the hotel in October 2016 in the final weeks of the presidential campaign. While the agency had months to look into potential issues with a president holding a government lease, they did not look into the Constitution’s emoluments clauses until after Trump won the election, according to the report.
In December 2016, GSA lawyers decided that they would ignore concerns about the emoluments clause, the report found. They claimed that their agency did not have the purview to examine constitutional issues.
But the inspector general report shows otherwise: Not only had the GSA previously investigated emoluments clause concerns in nonbinding decisions, but the lawyers ignored their own past work. Nor did the lawyers consult past opinions by the Justice Department’s Office of Legal Counsel, which had determined that the emoluments clauses apply to the president and that past presidents had gone to great lengths to avoid even the appearance of a violation. Beyond ignoring these past OLC findings, the GSA’s lawyers did not even reach out to the OLC to ask for guidance.
The GSA’s failure to investigate these constitutional concerns led it to a problematic decision to affirm that the government could continue to lease the Old Post Office Building to the president’s company, the inspector general concluded. This question came up because the lease agreement included a provision that specifically forbade any “elected official of the Government of the United States” to “be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.”
The GSA decided that the president was not in violation of this lease agreement, even though the agency never fully investigated the legal and constitutional questions at hand, according to the report.
“As a result, GSA foreclosed an early resolution of these issues, including a possible solution satisfactory to all parties; and the uncertainty over the lease remains unresolved,” the report says.
That uncertainty may ultimately be solved by the courts. Federal judges have allowed two separate cases to go forward challenging whether the president is in violation of the emoluments clauses. In both cases, the judges ruled that the clauses apply to the president and his hotel profits.