Why conflict of interest rules apply differently to the president
WASHINGTON — Rep. David McKinley has sold his West Virginia engineering and architecture firm, but it still bears his name — and that earned the Republican congressman a rebuke from the House Ethics Committee.
President-elect Donald Trump has built an international property management, real estate and branding business around his name. There appears to be no consequence for that.
When it comes to ethics, not all government employees are regulated equally. What’s a serious matter for a second-term congressman with a small business has no equivalent for a president with a multibillion-dollar empire.
The government’s legislative and judicial branches are governed by well-established rules, but there’s far less clarity about what a president can and cannot do. Conflict of interest provisions are generally looser, though Democrat Jimmy Carter, Republican George W. Bush and many other recent presidents took care to separate themselves from their businesses.
Trump tweeted Wednesday that he would announce next week his plans to step back from his company while he is president. He wrote that “legal documents are being crafted which take me completely out of business operations.”
Many serious questions remain: Will he retain an ownership stake? Will, as top aide Kellyanne Conway suggested, his adult children own and operate the business? If they do take over the Trump Organization, will they continue to be involved in Trump’s administration, as they have been?
Spokesmen for Trump’s transition and the Trump Organization have not provided details.
While Trump develops his plan, ethics lawyers and good-government groups are reviewing laws, past cases and best practices — as well as issues of who would even have the standing to call out a president for possible conflict of interest violations.
As Danielle Brian, executive director of the nonprofit Project on Government Oversight, put it, “We’re researching things that hadn’t even been considered before.”
“We have never had a president with these enormous business conflicts domestically and globally,” said Norman Eisen, who served as President Barack Obama’s first White House ethics czar. “What’s more, we’ve never had a president who seems to insist on breaking the precedent set by every previous president for at least four decades of doing a true blind trust or its equivalent.”
Eisen and Richard Painter, who held an equivalent position under Bush, wrote in a joint statement Wednesday that it’s not enough for Trump to simply step away from company operations.
“Without an ethics firewall that is set up at once and continues into the administration, scandal is sure to follow,” they wrote.
Self-policing has been common in recent presidencies, as well as in the legislative and judicial branches.
Congress’ ethics rules — and the bodies that police them — all stem from its ability to regulate itself. That was the case with McKinley, who violated a provision that a fiduciary business such as an architecture firm is barred from using the name of a government employee such as a congressman.
Lawmakers “are attuned to views of the voters and perception of undue conflicts,” said Andrew Herman, a Washington attorney who specializes in congressional ethics. “That’s why they’ve tended to have stringent ethics rules and committees to enforce them.”
Trump has broadly asserted that he is not hemmed in by conflict of interest laws. “The law is totally on my side, meaning the president can’t have a conflict of interest,” Trump told The New York Times last week.
Herman and other attorneys say that while the president and vice president are exempt from the federal conflict of interest statute, the country’s founders drew a bright line at accepting foreign gifts.
That ban is captured in an antique-sounding part of the Constitution called the emoluments clause.
It could pose a problem for Trump because he does business all over the world. Even his domestic operations, such as his new hotel at the Old Post Office building in Washington, could trip him.
Arthur Hellman, an ethicist at the University of Pittsburgh, said he does not believe any U.S. court, much less the Supreme Court, has ever interpreted the emoluments clause. “There is nothing that sheds much light on questions raised by foreign officials giving something or engaging in activities that could be construed as emoluments to Trump or his businesses.”
However, a violation might be difficult to challenge in court, Hellman said. “It’s hard to imagine anyone would have standing,” he said. Other legal experts have said that perhaps a business competitor would have the right to litigate.
At Democrats’ request, the Congressional Research Service recently put out three pages of guidance on what rules “might technically” apply to the president.
Among them is the emoluments clause, a prohibition on employing relatives, and bribery provisions.
Another sticky issue: Trump’s potential conflicts haven’t been fully illuminated.
As a candidate, he filed financial disclosures as required by federal law, including assets of more than $1.4 billion and debt of at least $265 million. He has separately boasted that his net worth is $10 billion
But unlike all recent major party presidential candidates, he did not make public his tax returns, shielding from view the full scope of his business entanglements.
It’s also uncertain whether Trump will file a new disclosure of his wealth within the first year after he takes office in January, as previous presidents have done, or wait until required by law, in is May 2018.
Such quandaries thrust the Republican-led Congress into an important watchdog role.
Few Republicans have raised red flags. Rep. Justin Amash, a Michigan Republican and frequent Trump critic, tweeted last week that “it’s certainly a big deal” if Trump has contracts with foreign governments, but few others have offered that view.
Rep. Jason Chaffetz, chairman of the House Committee on Oversight and Government Reform, said he wants to give Trump a chance to work things out. “He hasn’t even been sworn in yet, Chaffetz said Tuesday on Fox News.