JURIST Guest Columnist Heidi Li Feldman, a Professor at Georgetown University Law Center, talks about Donald Trump's charity foundation and the recent court case...
For those inclined to question whether Donald Trump would actually be so brazen as to straight up take over the apparatus of U.S. foreign policy purely to boost his own reelection prospects, bear this in mind. We already know that Donald Trump is willing to hijack an entity organized to serve the public interest and use it to gain election to the Presidency of the United States of America. This is what he did with the Donald J. Trump Foundation in 2016. Trump’s wrongdoing related to this charitable foundation models the wrongdoing evidenced by much of the testimony in the House impeachment inquiry. In fact, the two have an eerie similarity.
In 1988, Donald Trump organized the Donald J. Trump Foundation under New York state law as a not-for-profit private foundation. From 1988 through 2017, Trump served as a director of the foundation. As a not-for-profit under New York state law, a charity may not engage in activity for the personal benefit of a particular individual. More especially, the corporation’s assets, income or profit may not be distributed to or otherwise used to benefit the corporation’s members, directors or officers. These restrictions reflect a basic tenet of corporate charities: in exchange for the freedom to solicit donations and distribute funds, the corporate entity must not profit specific private individuals, especially those charged with making sure the charity carries out its public-regarding mission. Charities are for the public good.
In a stipulated settlement with the New York State Attorney General, Donald Trump agreed that he repeatedly used the foundation to make payments to serve his private purposes. One instance stands out because it demonstrates Trump’s willingness to misuse an entity organized exclusively for public service to gain his private ambition of election to the U.S. presidency.
In January of 2016, Donald Trump announced he would not participate in a televised debate with other candidates seeking the Republican nomination for president. The debate was the last such event before the Iowa caucuses. Trump withdrew in part because of his hostility toward moderator Megyn Kelly. Instead, he decided to hold his own event, a fundraiser in Iowa, billed as the “Donald J. Trump Special Event for Veterans.” Trump’s presidential campaign developed a website for the event which featured the name of the foundation and informed visitors that the foundation is a 501(c)(3) nonprofit organization. The campaign planned, organized, and paid for the fundraiser, and the campaign directed the timing, sums, and recipients of the foundation’s eventual grants made from donations received via the fundraiser. In January and February, Trump held campaign events where he displayed copies of checks from the foundation payable to veterans’ groups in Iowa. In May, during a campaign press conference, Trump announced grants the foundation made to veterans’ groups from the proceeds of the January fundraiser. At the same time, the campaign posted these grant recipients on its website.
This series of events demonstrates how Trump co-opted an entity legally required to serve the public good to advance his personal presidential election campaign. New York state judge Saliann Scarpula singled out this misconduct when, on November 7, 2019, she ordered Trump personally to pay $2 million in restitution for abusing his position as a director of the Donald J. Trump Foundation.
Note the parallels to Trump’s conduct under investigation by the U.S. House of Representatives Permanent Select Committee on Intelligence.
The U.S. government has well established political and legal channels for conducting foreign policy and allocating aid to foreign countries; such aid is delivered for the sake of public objectives, such as advancing U.S. interests in world politics or for humanitarian reasons. In the case of Ukraine, U.S. aid supports a country whose developing democracy is menaced by Russia, a country hostile to the U.S. and its allies. Rather than allowing U.S. aid to flow to Ukraine within usual channels, Trump apparently directed U.S. Ambassador to the European Union Gordon Sondland, then Special Envoy to Ukraine Kurt Volker, and U.S. Energy Secretary Rick Perry to take over. Their mission was to get Ukraine to announce an investigation into former Vice-President Joe Biden, a strong contender for the Democratic nomination for President in the 2020 elections. Such an announcement was a precondition for the newly elected Ukrainian president Volodymyr Zelensky to have a White House meeting with Trump and for Trump to greenlight the transfer of Congressionally appropriated funds to Ukraine.
By creating a back-channel to orchestrate whether Ukraine received already Congressionally appropriated funds and conditioning receipt of those funds on Ukraine’s announcing a prosecutorial investigation into Joe Biden, Trump co-opted a process dedicated to public objectives to serve his personal interests in getting reelected. The back-channel is to U.S. foreign policy what the 2016 Trump campaign was to the Donald J. Trump Foundation: an apparatus for taking over an officially public-serving enterprise and convert it to serve the personal ambitions of Donald Trump. Sondland, Volker, and Perry are to career diplomats what Corey Lewandowski, the 2016 Trump Campaign manager selected by Roger Stone, was to anybody with professional charitable organization experience at the Trump Foundation. In both situations, the personnel running the show were totally inappropriate for the job, not only because their loyalties were to Trump’s personal interests rather than any public-serving mission. In both settings, the people Trump assigned to do the work lack even the veneer of expertise necessary to do the official job – responsible U.S.-Ukrainian relations for Sondland and Perry and charitable fundraising and grant-making for Lewandowski.
Moreover, just as the Ukrainian government was apparently pressured to serve Trump’s interests, so too were third parties touched by the Trump campaign fundraiser. At least one grantee was given the impression that the grant was conditioned on appearing at Trump campaign political event. While that grantee accepted the money and refused the appearance, other veterans’ organizations were loath to get caught up in Trump’s political efforts at all and refused money from the Iowa fundraiser altogether.
The pivotal difference between Trump’s misuse of his position as director of the Donald J. Trump Foundation and his misuse of the office of the Presidency lies in whether and how he will be held accountable for the latter. Prompted by tenacious and creative reporting, especially by the Washington Post’s David A. Fahrenthold, the New York State Attorney General was able to make such a strong case under New York state laws pertaining to not-for-profits and charities that Trump settled rather than fight. The settlement required the dissolution of the Trump Foundation, an agreement from Trump to submit to close supervision by the State Attorney General should he ever form another not-for-profit in New York, and the $2 million restitution payment. The misconduct to which Trump stipulated may eventually give rise to federal tax penalties and even an Internal Revenue Service audit.
When it comes to Trump’s efforts to commandeer U.S. foreign policy to serve his personal interests, the mechanisms of accountability are not as clear cut and the potential consequences of conceding the facts are greater. Despite the information provided by witness testimony to the House Select Committee, Trump is unlikely to do the equivalent of settling the current dispute, which would be to resign the office of the Presidency in light of strong evidence that he sought to convert American foreign policy into a tool for his reelection. As of this writing, the Republican-dominated Senate continues to seem unlikely to play the role of the New York Attorney General and the New York court, which would be to convict Trump of treason, bribery, high crimes and misdemeanors or some combination of these.
What remains to be seen is whether Trump makes it to the 2020 Presidential Election ballot and if the electorate denies him a second term. Of course, that mechanism of accountability is precisely the one Trump is now allegedly attempting to wrongfully influence, this time by usurping U.S. foreign policy and foreign aid in the service of his own ambitions to remain in office.
Heidi Li Feldman is Professor of Law at Georgetown University Law Center, with a courtesy appointment in the Philosophy Department at Georgetown University. Her scholarly expertise includes torts, constitutional torts, products liability, legal theory, political philosophy, ethics, and epistemology.
Suggested citation: Heidi Li Feldman, Donald Trump Couldn’t Be Trusted to Direct a Charity; Why Does Anybody Trust Him to Preside Over a Country?, JURIST – Academic Commentary, Dec. 1, 2019, https://www.jurist.org/commentary/2019/12/heidi-feldman-trump-charity
This article was prepared for publication by Brianna Brown, Associate Editor for JURIST Commentary. Please direct any questions or comments to her at firstname.lastname@example.org
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