Attacking President-elect Trump on the basis of his expected violations of the conflict of interest laws provides the anti-Trump crowd a convenient outlet to vent their anger and frustration over his election. But as the attacks continue to pop up in op-eds and on cable and be smuggled into straight news reporting, those launching them might bear two things in mind: the attacks will surely further divide the nation and, even worse for the anti-Trumpers, make it more likely Trump will pursue the policies he espouses that they so adamantly reject.
As explained here last week, the conflict of interest laws do not apply to presidents; suggestions that Trump should follow them even though he is exempt make no sense.
Take the “solution” of a blind trust being peddled by so many critics. Were Trump to establish one in accordance with Office of Government Ethics rules, he would still have to recuse himself from any decision affecting the offending assets in the trust until the trustee certified they had been sold off. What if the trustee hadn’t sold off his substantial portfolio by Inauguration Day? Would that mean he would have to recuse himself from decisions affecting it until the assets were? Who should serve as acting president until they are sold? Which section of the Constitution authorizes a president to delegate his powers under these circumstances?
The conflict of interest laws were passed because experience showed that lower level government employees sometimes did not have the strength of character to resist the temptation to award contracts to friends and relatives or to otherwise put the national interest above their personal financial interests. But no contracting officer is ever put to the ultimate character test: asking the electorate to trust him or her to make decisions affecting its economic well-being and security.
Donald Trump was and passed, even if only barely. The conflict of interest attacks are thus entirely misplaced: the voters have put their trust in him for the next four years. Those who already say he can’t be trusted, before any evidence in support of the claim is in, are simply contesting the passing grade he eked out November 8. The argument is that if he doesn’t establish a blind trust, sell off his assets, keep his children or businesses at arm’s length, or whatever else critics have believe is necessary for him avoid conflicts of interest, he can’t be trusted to impartially decide matters of state. Any pledge or promise Trump makes to ignore personal financial considerations when making them is in their view disingenuous if not a down-right lie.
Attacking Trump on conflict of interest grounds surely makes the anti-Trump crew feel good (see Rachel Maddow’s November 16 broadcast for a fine example). But arguments, often put in the most vitriolic of terms, that Trump didn’t merit a passing grade on the November 8 character test are likely to further anger those who thought otherwise. Nor does it seem that implying again and again that Trump’s character is so weak that greed will make him incapable of separating his financial interests from the national interest will push him to reconsider deporting illegal immigrants, cozying up to Putin, or pursuing any of the other policies the conflict of interest attackers find so objectionable. Indeed, repeatedly suggesting he is a lying, greedy SOB would seem likely to drive him into the arms of those rooting for implementation of all the terribles promised during the campaign.
Isn’t bringing citizens together and dissuading Trump from implementing his most questionable policies more important than launching “feel good” ad hominem attacks on him? The answer would seem so obvious as to not bear stating. But in the superheated anti-Trump world (comparable to that of the alt-right’s?), the question itself will likely never even be raised.
We had a similar issue when president Peña of Mexico was accused of having a conflict of interest after his wife bought a mansion from a contractor his administrations as governor and then president had favored. There was an investigation, which concluded that there were no conflicts of interest because those laws do not apply to the president (for similar reasons to what you outline, since Mexico copied those laws from the US), and everyone was outraged. Honestly, I don’t see it as counterproductive, because it seemed to raise the bar for what presidents are allowed to do and what they’re not, even if specific laws don’t say so. The real problem is identifying why conflicts of interest make the electorate so uncomfortable, and whether if the president cares. In our case, the president did not seem to care, but ended up apologizing anyway.
Great comment. Thanks. What I think is important is not that there might be a conflict of interest between the President-elect’s personal financial interests and the national interest but what he does when confronted with one. Will he put the national interest first? The U.S. commentators (with the exception of the authors of an op-ed in today’s Washington Post — https://www.washingtonpost.com/opinions/its-unrealistic-and-unfair-to-make-trump-use-a-blind-trust/2016/11/22/a71aa1d4-b0c0-11e6-8616-52b15787add0_story.html?utm_term=.7919f1cbadb4 –) are focused on measures he should take to avoid any possible confrontation. But the confrontation avoidance rules are not applicable to him (or members of the U.S. House or Senate). There are several reasons. One is because a president’s responsibilities are so broad that avoiding a confrontation is difficult if not impossible as a practical matter. So the U.S. system relies on the disclosure instead. Voters can see what the president owns and determine whether his decisions advance his interests or the nation’s. If they conclude the decisions are advancing the former, they can deny him a second term or demand legislators impeach and then remove him from office.
Applying this reasoning to the Peña case, the investigators should have asked if he ever favored the contractor’s interest over the national interest. If he did, that would seem to me to be evidence of a quid pro quo, bribery by another name. Even if the Peña case was not resolved properly, I bet his successors are far more sensitive to such matters.
“Conflict of interest” — surprisingly Richard’s article did not delve into the emoluments clause in the Constitution. Should President Trump have direct or indirect business relations with foreign entities that provide him with income, or financial obligations, then he could be in violation of this clause in the Constitution, providing opponents with substantial grounds for serious confrontation that ultimately the Supreme Court would probably have to resolve. At a minimum, the issue would force Trump at some point to provide full details on his business interests, which he has so far refused to do.
Thanks for the comment and the chance to discuss the emoluments clause issue.
I did not cover it in my posts about conflict of interest because the clause does address conflict of interest – or at least not “conflict of interest” as the term is generally understood in U.S. discourse. In a fine essay on the clause on the Heritage Foundation’s Web site [http://www.heritage.org/constitution/#!/articles/1/essays/68/emoluments-clause ] St. Thomas Law School Professor Robert J. Delahunty explains that the clause was meant to prevent American diplomats from accepting gratuities or taking bribes from foreign governments.
Although “conflict of interest” has no precise legal definition (one reason the recent commentary on Trump’s potential conflicts is so confused), a committee of the New York City Bar that conducted the first major study of conflict of interest identified seven statutes that at the time (1960) were generally regarded as conflict of interest laws. Together they barred government employees from i) assisting others in prosecuting claims against the U.S., ii) acting for the government in transactions with a business entity in which he or she had an economic interest, iii) receiving compensation for performing official duties, and iv) advising others on how to obtain a government contract. (The Association of the Bar of the City of New York, Special Committee on the Federal Conflict of Interest Laws, Conflict of Interest & Federal Service, 1960, pp. 27 -28.). To these I think most lawyers who practice ethics law today would add post-employment, “cooling off” provisions, the rules governing employees’ negotiations for a job outside government, and most important of all the financial disclosure requirements.
This is not to say I don’t think emolument clause issue is unimportant or should be overlooked in the discussion about the President-elect and ethics. In fact, while in my view the issue should be kept separate when discussing (arguing about) Trump and conflict of interest, the best way to address it is through the financial disclosure requirements that are a part of the conflict of interest rules. If President-elect Trump were to disclose the sources of all his income, the public could then decide for itself whether he was violating the emolument clause. Of course, as some commentators have noted, under current disclosure rules there are ways he could be receiving payments from foreign sovereigns that would not require disclosure. This is where I think the President-elect could do himself a favor – by going a step beyond what the current disclosure rules require.
To me the solution to Trump ethics brouhaha is not blindness, through a trust or otherwise, but more openness. Not only would more disclosure allow the American people to know whether the President-elect is on the payroll of a foreign government, going forward it would also allow them to judge whether in making policy he puts his financial interests above the national interest.
Emily Bazelon of Yale Law, speaking on Slate’s Political Gabfest this week pointed out that it is unclear how an emoluments clause approach to the problem would work. If Trump benefits from doing business with a state-owned enterprise, as is likely happening currently (although who could possibly know, since we have no clear picture of his business interests), then that behavior would seem to fall under the emoluments clause. But there is so little case law that it would be difficult to figure out simple questions such as who has standing to sue.
Trump has already clearly signaled the intention to intertwine his business interests and policy decisions. He ‘talks business’ on political calls, encourages foreign leaders to stay in his hotels, and puts pressure on the UK to shut down wind farms for the benefit of his Scottish golf course. In my opinion, this turns our federal government into a kleptocratic dystopia, and is potentially devastating to the global project of building anticorruption norms. Unfortunately, though, the emoluments clause might not be a useful tool to combat this issue.
Rick: I appreciate your analysis. I don’t think I fully agree with you, for reasons I haven’t worked out sufficiently to get into here; I may try to respond at greater length in a future post. I did want to hit back on one seemingly minor thing: near the end of your post, you suggest that the “superheated anti-Trump world” is perhaps “comparable to the alt-right.” If by the comparison you mean to suggest merely that both camps may get caught up in the heat of political passion and their own rhetoric, I guess I see your point. But I still find the comparison inapt and insensitive: The so-called “alt-right” is mainly a re-branding of some of the ugliest strains in American politics and society, including overt racism, misogyny, and xenophobia; it is a movement that includes, and is embraced by, self-described neo-Nazis. The strident attacks on Trump’s character and ethics may or may not be wise as a matter of political tactics (the point on which you and I might respectfully disagree), but to suggest that those making those attacks are the moral equivalent of white supremacists and unapologetic misogynists is insulting and unfair.
Speaking of “unfair,” I also think you’re wide of the mark in suggesting that among those who think Trump’s election is a national disgrace and the man is supremely unqualified, it’s just not true that the engage/collaborate-vs-attack/delegitimatize question will “never be raised.” It has already been raised, repeatedly, by many people. Unless you’re defining your denominator tautologically as “those who have decided that attacking is better than engaging,” I’m not sure where you’re getting this idea.