-- In a meeting with The New York Times on Tuesday, Donald Trump said “the law is totally on my side” on whether he will keep his official and personal business separate as commander in chief.
“The president can’t have a conflict of interest,” he said.
While Trump, as president, may be exempt from the main conflict-of-interest statute for federal officials, continuing to mix his family’s work with official and political business invites an unprecedented potential for conflicts of interest and leaves him open to violating federal bribery law and an untested clause in the Constitution.
While he said he “would like to try and formalize something” to distance his business dealings and government responsibilities, if he decides not to liquidate his assets and put his money in a blind trust, Trump will be breaking with four decades of political norms set by his predecessors.
Conflict-of-Interest Law Doesn’t Apply to President, but Ethics Experts Still Urge Compliance
The president and vice president are exempt from a conflict-of-interest law that prohibits other federal officials from participating in government matters in which they or their family members have a financial interest.
“You don’t want the president, if facing an international crisis, to say, ‘Sorry, I have a conflict of interest,’” Norman Eisen, formerly President Barack Obama’s White House counsel and ethics czar, told ABC News.
Trump told The Times he could continue signing checks at his company “in theory” but he is "phasing that out now” and giving responsibilities to his children.
Nevertheless, every commander in chief over the last 38 years has voluntarily liquidated his assets or put together blind trusts to prevent even the appearance of impropriety.
“It’s the right thing for him to do for his own reasons, as well as the country’s reasons,” said Richard Painter, a University of Minnesota law professor and chief White House ethics lawyer during George W. Bush’s administration.
“He could legally manage his business while in the White House. I don’t think he can do that politically, but he can do that legally,” said Trevor Potter, an attorney and a former Republican Federal Election Commission chairman.
“The threshold decision for Mr. Trump is whether he wants to treat the presidency as a full-time job,” said Matthew Sanderson, a Republican lawyer with Caplin & Drydale, who suggested that Trump sell some assets to third parties, sell the remaining core business to his children and place all proceeds in a trust.
In a Nov. 17 letter to the president-elect, 19 ethics lawyers and watchdog groups called on him to place his business assets and investments into a blind trust or equivalent.
“This means that control of these assets would be transferred to an independent trustee who would sell the assets and place the proceeds in investments which do not create conflicts of interest and which are not disclosed to you,” the letter reads.
A quicker but less ideal solution ethically would be for Trump to put his assets in a blind trust run by a person he does not have a relationship with, instead of his children.
In theory, Trump could bring someone into Trump Tower and sign over his assets, Painter said.
But Trump would still invite scrutiny at the Oval Office because he would still have a sense of his portfolio and the assets, even if he is not directly supervising or managing them.
“You can almost see a daily, certainly a weekly question whether some action he has taken … was designed to benefit himself or his family,” Painter said.
Ethics experts said Trump’s proposed transfer of his businesses to his children would not prevent conflicts of interest.
“The proposal he has made ... is an alternative that no ethics lawyer would suggest,” Potter said. “It’s a recipe for disaster for him and for his administration.”
What Ethics Laws Could Trump Violate?
Under the emoluments clause of the Constitution, “no person holding any office of profit or trust” should accept any “emolument, office or title, of any kind whatever, from any king, prince or foreign state” without congressional approval. Legal scholars interpret this to prohibit the president from accepting gifts or favors from foreign governments or foreign state-owned companies, banks and sovereign wealth funds without a waiver from Congress.
What might this look like? Perhaps a foreign government agrees to build an access road to an overseas Trump Hotel as a special favor. Or Trump’s companies receive a favorable loan from the Bank of China, which is a tenant of Trump Tower in New York City. Or foreign diplomats and members of royal families might pay a premium for space in a Trump property. These might violate the law if Trump got a sweetheart business deal.
But legal experts dispute how and if violations of the emoluments clause could be enforced.
Painter says Congress could initiate impeachment proceedings, shining a spotlight on the House Judiciary Committee, which kicks off the process. Lawmakers could amend the Foreign Gifts Act to send a pre-emptive message to Trump — which the leaders of the House and Senate majorities would be responsible for shepherding through the Capitol.
While the White House counsel and the Justice Department (which could appoint an independent counsel) might help guide Trump on ethics matters, “ultimately the only real check would be the U.S. Congress,” said Paul Rothstein of the Georgetown University Law Center. Congress has the power to investigate, impeach or re-enact an independent counsel statute, as it did during Watergate, Iran-Contra and the Bill Clinton investigation, Rothstein added.
But if Trump’s children run the businesses without a blind trust, ethical violations “would be exceedingly difficult to police,” according to Rothstein.
Eisen said it’s not clear if anyone would have standing in court to challenge Trump, although a business competitor — another developer or hotel, for example — could have standing. (Other ethics experts and lawyers disagree.)
As president, Trump will be required to file annual financial disclosures — the same forms he filed as a candidate — under the 1978 Ethics in Government Act and could be sanctioned for any false statements. The filings are reviewed by officials at the Office of Government Ethics.
Bribery Laws Could Apply
Trump must abide by anti-bribery laws prohibiting him from taking anything for an official act.
In the two weeks since he won the presidential election, Trump has repeatedly appeared to mix his personal and official business – from meetings with overseas business partners eager to congratulate the new president-elect to conversations with world leaders with his family members sitting in.
On Tuesday, Trump appeared to suggest he could continue to meet with business partners and his children when he becomes president.
“I mean, what am I going to say? I’m not going to talk to you? I’m not going to take pictures?” he told the Times.
“In theory, I could run my business perfectly and then run the country perfectly,” Trump said.
While Painter says those exchanges, as reported, don’t appear to legally implicate Trump in any way, he believes they tread “dangerously close” to appearing to establish a quid pro quo.
“I think it’s a risk whether you’re president or you’re about to become president,” Painter said. “As he moves into office, he has to be more careful.”
Trump could get in legal hot water if any member of the Trump Organization mixes company business with government business or even tries to leverage Trump’s new status.
“That’s going to be a trigger to investigate whether somebody is committing a bribe,” said Painter.
The task of investigating any wrongdoing would fall to the Department of Justice. Trump said he will nominate Sen. Jeff Sessions, R-Ala., a former U.S. attorney and the first senator to back his presidential bid, for attorney general.
“We have never, ever in U.S. history had a president with either the size or the complexity or the international aspect of the holding of the president-elect,” Potter said.