The Governmental Stake in Private Wealth Transfer

By Weisbord, Reid Kress | Boston University Law Review, October 2018 | Go to article overview

The Governmental Stake in Private Wealth Transfer


Weisbord, Reid Kress, Boston University Law Review


INTRODUCTION

The central policy of wealth transfer law is one of abiding deference to private ordering and donative choice.1 With sparingly few exceptions, wealth transfer law governs by default rules and the freedom of disposition grants donors sweeping autonomy to dictate the terms of a gift.2 Mandatory restrictions on dispositional freedom are minimal and mostly confined to transfers that generate contexts where regulation is necessary to minimize spillover costs or harm to private, non-consenting third parties.3 However, in a fundamental and unexplored tension between private and governmental interests, the law has reserved for the government a notably muted role in regulating private wealth transmission.4 This Article argues that wealth transfer law reforms lack a unifying principle to protect important governmental interests in (1) the enforcement of criminal and civil laws; (2) the allocation and conservation of public financial resources; and (3) efficiency in the administration of justice, among a host of other potentially sovereign interests.

To orient our thinking about the governmental stake in private wealth transfer, let us begin with a concrete, timely, and superlative illustration: President Donald J. Trump has been assailed by ethics watchdogs since the start of his presidential campaign for failing to address the innumerable conflicts of interest between his decision-making authority as head of state and his continued control of a sprawling but opaque family business.5 Among the many potential conflicts are President Trump's business dealings with the U.S. government and foreign sovereigns in his personal capacity-transactions in which he may be tempted to favor his own private interests when making official decisions on the government's behalf.6

One widely reported conflict involves President Trump's stake in the Trump International Hotel in Washington, D.C., located in a historic decommissioned post office owned by the federal government.7 Several interrelated Trump entities, including multiple revocable trusts established for the benefit of President Trump and his adult children,8 lease the hotel premises from the U.S. government under the supervision of the federal General Services Administration ("GSA").9 The GSA lease expressly prohibits any elected official from being "admitted" to share in the lease or receive any benefit therefrom.10 Presumably, this requirement would disqualify President Trump's own continued participation in the lease because he is now an elected official. Additionally, because the hotel does business with foreign governments,11 President Trump's involvement may also violate the anti-corruption mandate of the Emoluments Clause of the Constitution.12

In June 2017, two hundred members of the United States Congress filed a civil action against President Trump to enforce the Emoluments Clause and enjoin his acceptance of benefits from foreign states without prior Congressional consent.13 Significantly, the complaint singles out President Trump's refusal to disclose information about his businesses as a particular impediment to Congress' ability to detect potential violations of federal law and the Constitution.14

President Trump contends that laws prohibiting conflicts of interest do not apply to him,15 but that he nevertheless has resolved all possible conflicts voluntarily by transferring ownership of his business interests to the "Donald J. Trump Revocable Trust."16 President Trump is a current trust beneficiary and retains the power to unilaterally revoke the trust.17 President Trump's selection of closely related trustees-his two adult sons and his longtime chief financial officer18-implies further control over the trust's administration.

President Trump's attorneys maintain that his revocable trust sanitizes all improper business conflicts-specifically, they claim that the Trump International Hotel lessors comply with the GSA lease because Trump's indirect ownership in the trust means that he is not "admitted" (quoting the GSA agreement) to share in the lease. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

The Governmental Stake in Private Wealth Transfer
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.