2017年1月14日 星期六

特朗普如何處理利益輸送?




在特朗普當選後的111日的首個記者招待會上,將其名下的數百個經濟實體轉為一信託基金,交給其兩個兒子和其首席執行官管理,並有可能在落任後對其兒子說: You’re fired.”
他委托了Morgan, Lewis & Bockius 律師行的 Sheri Dillon (1)女士草擬細則,並讓她在1小時的記者會上花15分鐘解釋這一信託協議(2)

防止利益輸送

1.          終止正在商談中的30多筆交易,令其損失數百萬美元;
2.          在任期間不進行任何新的外國交易;
3.          設立道德顧問(ethics adviser),監察任何潛在的倫理道德衝突;
4.          任何新國內交易交易必須得到道德顧問的書面批准;
5.          總統除了透過大眾媒介得知外,只能知道其整體損益,不能獲知個別業務細節;
6.          設立首席合規顧問(chief compliance counsel),以確保其企業不利用其總統職位輸送利益。
7.          基金的任何通信,包括社交媒體帳戶,都不能與總統或總統辦公室有裙帶關係。

其他方案的可能性

1.          變賣所有資產
它會加劇利益衝突,因為特朗普品牌是特朗普資產的關鍵。如果他出售其品牌,他將有權收取版稅。很難保證他不利用總統職位提升其品牌地位。此外,無論售價多少都將受到質疑。

2.          將其業務賣給他的成年子女
這需要大量的第三方債務,貸款人的動機將受到質疑。如果總統自己資助出售,他又保留了財務利益。

3.          上市公司
這個過程非常復雜。特朗普王國不合適上市。

4.          保密信託
無法對其營業務有完全保密信託。特朗普不能不知道他擁有特朗普塔。此外,也找到一個有合適的機構受託人。

超出憲法要求

當特朗普當選後,有些人想將他的酒店房租收入也定義為“收入來源”,但法律從未如此解釋。特朗普超出憲法對他的要求,將未來外國政府支付給他的酒店收入的所有利潤捐贈給美國財政部。
這當中所指的是“收入來源”(Emoluments) 美國“憲法”規定,“官員不得接受禮品,貴族頭銜或外國政府給他的任何好處。”但應不包括公平價格交易(fair value exchanges)的酒店房間收入。

回看香港

立法會於上周辯論“對下任行政長官的期望”。它是由建制派議員提出的,但沒有政府官員出席。
我們看到曾蔭權被控“公職人員行為不當”,再加控一項收受利益罪。“公職人員行為不當”是一條古老的法律,源於英國13世紀。它至少可追溯至1704年。由於年代久遠,其立法原意和發展已湮滅。其針對的是在重要官職或有權勢的人的自律,因為沒有任何成文法可以處理類似問題,它在普通法的地位更形重要。
There was a need, if one believed in the rule of law, to create an offence to hold those in positions of power and/or carrying out important public duties to account for serious wrongdoing and/or misuse of their positions. (3)
曾蔭權的下任梁振英也被指責利用海外公司隱瞞責任,不當地收用UGL 酬金。
我們看到,位高權重的不單止要守法,還要自律,因為他們知道得太多,太多方法、方便,法律未必永遠有效。

下屆特首人選

我們剛看到林鄭月娥表示有意參選,就用她作一例子對應特朗普吧。(雖然有網友表示:“Imagine everyday when you turn on the tv and u will only see trump trump and 林鄭..Nightmare before Christmas ..”和“ 瘋癲程度直逼Donald Trump )
普通法區對公職人員要求“盡忠職守”(Due diligence  -- the level of care/attention that one would reasonably be expected to take in this situation),即要求公職人員在討論中的情況下,合理地和合乎期望地採取的必要行動和關注。
林鄭月娥偷步參選,可能在法律上告不到她,但這是良好的典範嗎?她處理西九故宮的做法得到社會認同嗎?
雷鼎鳴的“勿凡事扯上程序公義”冇法解釋程序公義作為一原則的重要性,及為何在這特殊情況需要放棄這原則。其唯一的理由是擔心被國內其他城市捷足先登,這說法受得住論證嗎?
筆者無意表示林鄭比其他有意參選者更差,因為筆者並未,也沒有足夠資料在這方面(超出法律要求)比較他們。
筆者也不是特朗普支持者,給他道德光環。這裡討論的是一個為政者應有之道。明顯地,美國的比香港的高出許多。

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附錄

注一

Sheri Dillon

Sheri Dillon is a partner at the global law firm Morgan, Lewis & Bockius, which has its headquarters in Philadelphia, Pennsylvania. Dillon, however, works in Washington, D.C.
In May 2016, this law firm was named Russia Law Firm of the Year by Chambers & Partners. Morgan Lewis has an office in Moscow.
Hillary Clinton also made use of Morgan Lewis during her presidential campaign; James Hamilton, a partner at Morgan Lewis, helped Clinton vet her possible running mates, according to The New York Times.
Morgan, Lewis & Bockius happens to be the law firm where Texas Senator Ted Cruz previously worked. Cruz was a partner at the firm from 2008 to 2013, and he represented a variety of corporate clients.
Dillon was previously a partner for Vinson & Elkins, Bingham McCutchen and McKee Nelson LLP.
In addition, Sheri Dillon serves as the director and president of the Washington D.C. Center for Public Interest Tax Law. This is a non-profit organization that provides pro bono representation to low-income individuals with cases in the U.S. Tax Court. Dillon has served in this position since January 2016. She also helped launch the University of the District of Columbia’s Low-Income Taxpayer Clinic, where students represent low-income clients on tax issues.

注二


TRUMP: I think you care — I think you care. First of all, you learn very little to a tax return. What you should go down to federal elections and take a look at the numbers. And actually, people have learned a lot about my company and now they realize, my company is much bigger, much more powerful than they ever thought. We’re in many, many countries, and I’m very proud of it.

And what I’m going to be doing is my two sons, who are right here, Don and Eric, are going to be running the company. They are going to be running it in a very professional manner. They’re not going to discuss it with me. Again, I don’t have to do this. They’re not going to discuss it with me. And with that, I’m going to bring up Sheri Dillon, and she’s going to go — these papers are just some of the many documents that I’ve signed turning over complete and total control to my sons.

(CROSSTALK)

DILLON: Good morning. It’s my honor and privilege to be here today at President-elect Trump’s request.

He’s asked me, as you just heard, to speak about the conflicts of interest and the steps he’s taking. As you know, the business empire built by President-elect Trump over the years is massive, not dissimilar to the fortunes of Nelson Rockefeller when he became vice president. But at that time, no one was so concerned.

President-elect Trump wants the American public to rest assured that all of his efforts are directed to pursuing the people’s business and not his own. To that end, as he explained a few moments ago, he directed me and my colleagues at the law firm Morgan Lewis and Bockius to design a structure for his business empire that will completely isolate him from the management of the company.

He further instructed that we build in protections that will assure the American people the decisions he makes and the actions that he takes as president are for their benefit and not to support his financial interests.

DILLON: As he said, he’s voluntarily taking this on. The conflicts of interest laws simply do not apply to the president or the vice president and they are not required to separate themselves from their financial assets. The primary conflicts of interest statutes and some have questioned it, is Section 18 USC 208 and it’s simply inapplicable by its terms. And this is not just our interpretation. It’s Congress itself who have made this clear in 1989 when it amended Section 18 USC 202 to state that, except as otherwise provided, the terms office and employee in section 208 shall not include the president.

Even so, President-elect Trump wants there to be no doubt in the minds of the American public that he is completely isolating himself from his business interests. He instructed us to take all steps realistically possible to make it clear that he is not exploiting the office of the presidency for his personal benefit. He also sought the guidance of individuals who are familiar with and have worked extensively in the fields of government ethics and constitutional law.

Critical to the Morgan Lewis team is Fred Fielding, standing here to our side and with us today and many of you have known him. He has served several presidents over the years including serving as counsel to Presidents Ronald Reagan and George W. Bush as well as serving on President George H.W. Bush’s Commission on Federal Ethics Law Reform and he also held the position of vice chair of the Ethics Resource Center.

Mr. Fielding has been extensively involved with and approved this plan. He’s here today to support the plan and he will continue to provide guidance as the plan is implemented and as Eric, Don, along with others, take over management of the Trump organization.

I’m gonna detail some of the extraordinary steps now that the president-elect is taking. First, President-elect Trump’s investments and business assets commonly known as the — as the Trump Organization, comprising hundreds of entities which, again, if you all go and take a look at his financial disclosure statement, the pages and pages and pages of entities have all been or will be conveyed to a trust prior to January 20th. Here is just some of the paperwork that’s taking care of those actions.

Second, through the trust agreement, he has relinquished leadership and management of the Trump Organization to his sons Don and Eric and a longtime Trump executive, Allen Weisselberg. Together, Don, Eric and Allen will have the authority to manage the Trump Organization and will make decisions for the duration of the presidency without any involvement whatsoever by President-elect Trump.

Further, at the president-elect’s direction, the trust agreement provides — that to ensure the Trump Organization continues to operate in accordance with the highest and legal ethics standards, an ethics adviser will be appointed to the management team. The written approval of the ethics adviser will be required for new deals, actions, and transactions that could potentially raise ethics or conflicts of interest concerns.

President-elect Trump as well as Don, Eric and Allen are committed to ensuring that the activities of the Trump organization are beyond reproach and cannot be perceived to be exploitive of the office of the presidency. President-elect Trump will resign from all officer and other positions he holds with the Trump Organization entities.

Further, in addition, his daughter Ivanka will have no further involvement with or management authority whatsoever with the Trump Organization. As she and Jared move their family to D.C., Ivanka will focused on settling her children into their new homes and their new schools.

The president-elect has also already disposed of all of his investments in publicly traded or easily liquidated investments. As a result, the trust will have two types of assets; first, it will hold liquid assets. Cash, cash equivalents and treasuries and perhaps some positions in a government approved diversified portfolio, one that is consistent with the regulations from the Office of Government Ethics.

Second, the trust is going to hold his preexisting illiquid, but very valuable business assets, the ones that everyone here is familiar with. Trump owned, operated and branded golf clubs, commercial rental property, resorts, hotels, rights to royalties from preexisting licenses of Trump-Marks Productions and Goods. Things like Trump Tower, Mar-a-Lago, all of his other business assets, 40 Wall Street will all be in the trust.

Through instructions in the trust agreement, President-elect trust — President-elect Trump first ordered that all pending deals be terminated. This impacted more than 30 deals, many of which were set to close by the end of 2016. As you can well imagine, that caused an immediate financial loss of millions of dollars, not just for President-elect Trump, but also for Don, Ivanka and Eric.

DILLON: The trust agreement as directed by President Trump imposes severe restrictions on new deals. No new foreign deals will be made whatsoever during the duration of President Trump’s presidency. New domestic deals will be allowed, but they will go through a vigorous vetting process.

The president-elect will have no role in deciding whether the Trump Organization engages in any new deal and he will only know of a deal if he reads it in the paper or sees it on TV. Because any new deal could — and I emphasize could — be perceived as causing a conflict or as exploiting the office of the presidency, new deals must be vetted with the ethics adviser, whose role will be to analyze any potential transactions for conflicts and ethics issues.

The ethics adviser will be a recognized expert in the field of government experts. Again, his role will be to scrutinize the new deals and the actions, and any new deal must receive written approval.

To further reinforce the wall that we are building between President-elect Trump and the Trump Organization, President-elect Trump has ordered, through his trust agreement, to sharply limit his information rights. Reports will only be available and reflect profit and loss on the company as a whole. There will be no separate business by business accounting.



Another step that President-elect Trump has taken is he created a new position at the Trump Organization; the position of chief compliance counsel, whose responsibility will be to ensure that the Trump businesses, again, are operating at the highest levels of integrity and not taking any actions that could be perceived as exploiting the office of the presidency.

He has also directed that no communications of the Trump Organization, including social media accounts, will reference or be tied to President-elect Trump’s role as president of the United States or the office of the presidency.

In sum, all of these actions — complete relinquishment of management, no foreign deals, ethics adviser approval of deals, sharply limited information rights — will sever President-elect Trump’s presidency from the Trump Organization.

Some have asked questions. Why not divest? Why not just sell everything? Form of blind trust. And I’d like to turn to addressing some of those questions now.

Selling, first and foremost, would not eliminate possibilities of conflicts of interest. In fact, it would exacerbate them. The Trump brand is key to the value of the Trump Organization’s assets. If President-elect Trump sold his brand, he would be entitled to royalties for the use of it, and this would result in the trust retaining an interest in the brand without the ability to assure that it does not exploit the office of the presidency.

Further, whatever price was paid would be subject to criticism and scrutiny. Was it too high, is there pay for play, was it too much pay to curry favor with the president-elect. And selling his assets without the rights to the brand would greatly diminish the value of the assets and create a fire sale.

President-elect Trump should not be expected to destroy the company he built. This plan offers a suitable alternative to address the concerns of the American people, and selling the entire Trump Organization isn’t even feasible.

Some people have suggested that the president-elect sell the business to his adult children. This would require massive third-party debt sourced with multiple lenders, whose motives and willingness to participate would be questioned and undoubtedly investigated. And if the president-elect were to finance the sale himself, he would retain the financial interests in the assets that he owns now.

Some people have suggested that the Trump — that President-elect Trump could bundle the assets and turn the Trump Organization into a public company. Anyone who has ever gone through this extraordinarily cumbersome and complicated process knows that it is a non-starter. It is not realistic and it would be inappropriate for the Trump Organization.

Some people have suggested a blind trust, but you cannot have a totally blind trust with operating businesses. President Trump can’t unknow he owns Trump Tower and the press will make sure that any new developments at the Trump Organization are well publicized.

DILLON: Further, it would be impossible to find an institutional trustee that would be competent to run the Trump Organization. The approach that he is taking allows Don and Eric to preserve this great company and its iconic assets. And this approach is best from a conflicts and ethics perspective. It creates a complete separation from President-elect Trump — it separates him and prevents him from participating in the business and poses strict limits on what the trustees can do and requires the assent of any ethics adviser to a new deal.

I’m going to turn to one last topic today that has been of interest lately called emoluments. That’s a word I think we’ve all become familiar with and perhaps had not heard before.

And we’re gonna describe some other actions that President-elect Trump is taking to avoid even the appearance of a conflict.

Emoluments comes from the Constitution. The Constitution says “officials may not accept gifts, titles of nobility, or emoluments from foreign governments with respect to their office, and that no benefit should be derived by holding in office.”

The so-called Emoluments Clause has never been interpreted, however, to apply to fair value exchanges that have absolutely nothing to do with an office holder.

No one would have thought when the Constitution was written that paying your hotel bill was an emolument. Instead, it would have been thought of as a value-for-value exchange; not a gift, not a title, and not an emolument.

But since President-elect Trump has been elected, some people want to define emoluments to cover routine business transactions like paying for hotel rooms. They suggest that the Constitution prohibits the businesses from even arm’s-length transactions that the president-elect has absolutely nothing to do with and isn’t even aware of.

These people are wrong. This is not what the Constitution says. Paying for a hotel room is not a gift or a present and it has nothing to do with an office. It’s not an emolument.

The Constitution does not require President-elect Trump to do anything here. But, just like with conflicts of interests, he wants to do more than what the Constitution requires.

So, President-elect Trump has decided, and we are announcing today, that he is going to voluntarily donate all profits from foreign government payments made to his hotel to the United States Treasury. This way, it is the American people who will profit.

In sum, I and president-elect’s (sic) other advisers at Morgan Lewis have determined the approach we’ve outlined today will avoid potential conflicts of interests or concerns regarding exploitation of the office of the presidency without imposing unnecessary and unreasonable loses on the president-elect and his family.

We believe this structure and these steps will serve to accomplish the president-elect’s desire to be isolated from his business interests and give the American people confidence that his sole business and interest is in making America great again, bringing back jobs to this country, securing our borders and rebuilding our infrastructure.

The American people were well — well aware of President-elect Trump’s business empire and financial interests when they voted. Many people voted for him precisely because of his business success.

President-elect Trump wants to bring this success to all Americans. Thank you.

3


Superficially, misconduct in public office is a strange offence. It was created by the higher judges in England, apparently in the 13th century. The full reasons for its creation and development are lost in the mists of time. But one issue stands out clearly. There was a need, if one believed in the rule of law, to create an offence to hold those in positions of power and/or carrying out important public duties to account for serious wrongdoing and/or misuse of their positions. There was no statutory offence which would cover such situations. In Hong Kong it seems this remains the case.