Trump’s Conflict-of-Interest Problem
“Are you planning on putting your assets in a blind trust should you become President?” the Fox Business Network anchor Maria Bartiromo asked Donald Trump during a Presidential-primary debate in South Carolina, in January. “How difficult will it be for you to disentangle yourself from your business and your money and prioritize America’s interests first?”
“If I become President, I couldn’t care less about my company,” Trump answered, waving her off. “It’s peanuts.”
“So you’ll put your assets in a blind trust?” Bartiromo asked again.
“I would put it in a blind trust—well, I don’t know if it’s a blind trust if Ivanka, Don, and Eric run it. Is that a blind trust? I don’t know.” He looked around and shrugged. “But I would probably have my children run it with my executives, and I wouldn’t ever be involved.”
The comments were startling at the time he made them, but what is even more remarkable is what has occurred since: Trump was elected President and, so far at least, has shown no sign that he understands or has ever even thought about conflict-of-interest laws, or conflicts of interest. On November 10th, two days after the election, an attorney for the Trump Organization named Michael Cohen told CNN that the President-elect intended simply to turn control of his company over to his three children from his first marriage, who would run it through a “blind trust,” a suggestion that makes little sense on its face, given that a trust is only considered “blind” if the trustees are individuals with no financial relationship with the company’s owner. The former Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush all placed their assets in blind trusts while serving as President. (Obama has all of his money in Treasury bills and index funds, investments that aren’t seen as a conflict.) In any case, the idea of Trump setting up an impossible-sounding blind trust with his children dissolved the following day, when he announced that three of his children would serve on the executive committee of his Presidential transition team, helping him to fill jobs in his government.
Trump and his offspring had already been treating the Presidential campaign like a world-spanning, high-stakes branding opportunity for Trump-related businesses. The Trump campaign directed millions of dollars in campaign expenses to Trump-related ventures: rent was paid to Trump Tower, where the campaign headquarters was located; events were held at Trump golf courses and other properties; Trump’s Mar-a-Lago club was paid for lodging, facilities, and catering, according to Politico. Trump’s daughter Ivanka used campaign appearances as an opportunity to advertise clothing from her own fashion line. The perception of Trump as a talented businessman drove a large part of his appeal to voters who want a piece of his gilded capitalism for themselves. It’s hard to imagine that he’ll be willing to let that all go and dedicate himself to public service. (Trump himself reportedly donated upwards of fifty million dollars to the campaign.)
It turns out that there is no legal requirement that a President divest himself or herself of private business interests or investments while in office. Nor is there a requirement that he place investments or companies he controls in a blind trust, by which an independent third party manages the assets while he serves in government. There are federal ethics rules that prohibit members of Congress and Cabinet members from accepting gifts from anyone who has business before their agency, as well as requiring that they recuse themselves from governmental affairs that affect their financial interests. The roles of President and Vice-President were exempted from those rules because it was believed that the office of the President was so vast in its responsibilities that it would be virtually impossible to police. As Kenneth Gross, a partner at Skadden Arps, and a former associate general counsel of the Federal Election Commission, notes, it was also assumed that no President would attempt to run the government and a business simultaneously.
The authors of the Constitution, however, did have insight into the potential abuse of the office of President, and they inserted something called the Emoluments Clause into Section 9 of Article I. It states, in part, that “no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This clause, Gross said, basically means that anything of significant value from a foreign government or a company controlled by one that accrues to the Trump Organization while Trump owns it could provide the seed of an investigation and impeachment. Trump listed five hundred and sixty-four line items on his financial-disclosure form; appearing under “Filer’s Positions Held Outside United States Government” are the names DT Marks Qatar LLC, DT Marks Dubai LLC, THC Services Shenzhen LLC, and many other opaque, foreign-sounding entities.
“This is not something esoteric. This is an area that the incoming President must address, along with his other conflicts,” Gross, who advised Michael Bloomberg on the management of his assets while he was the Mayor of New York City, said. (I formerly worked at Bloomberg L.P.) “This is a very unique problem for him—we don’t have a very good picture of his financial situation, we really don’t know what he owns, we don’t know all his entanglements.”
Gross noted that, in some sense, it’s impossible to separate Trump from his assets. “One of the problems that Trump has is he already knows what properties he already owns. It does no good in terms of blinding assets he already owns, and it does no good if his children are running it, in resolving the conflict, because his self-interests are co-existent with his children’s interests,” Gross said.
In an interview on Sunday with Jake Tapper, on CNN, Rudy Giuliani argued that taking the family businesses away from Trump’s children and giving them to a third party would “be putting them out of work.” The best conflict-of-interest measure he could envision was a document attesting that President Trump would not be involved in the running of his companies.
If there is a precedent, it might be found in New York State government, where legislators serve part-time and are allowed to maintain outside businesses, which range from coffee shops to their own law firms. Disclosure requirements are intended to reveal potential conflicts, but there are no limitations on the amount of income legislators can bring in from outside work. It didn’t shock anyone when Sheldon Silver, the former speaker of the State Assembly, and Dean Skelos, the former Senate Majority Leader, were convicted, last year, of corruption charges. In Silver’s case, the crime was referring cases from companies with business before the state to law firms that paid him bonuses and referral fees; Skelos was accused of referring business to help his son. (Both cases are on appeal.)
“It’s a tremendous problem when it’s completely obvious how someone seeking governmental action from the United States can provide substantial benefit to its chief executive,” Arlo Devlin-Brown, a partner at Covington and Burling, who oversaw the Silver and Skelos prosecutions as the chief of the public-corruption unit at the Manhattan U.S. Attorney’s Office, said. A foreign or domestic company could choose to license the Trump name for a real-estate development or for marketing a line of Trump edible-fruit arrangements, to take one simple example; the company would know that it was benefitting the President no matter who was managing the Trump Organization, and President Trump would know it, too. “The problem here is the appearance of impropriety—nearly every single company is trying to get something from the executive branch,” Devlin-Brown said.
When I asked Ken Gross, of Skadden, if he knew of any other examples of world leaders attempting to continue earning enormous profits from their private companies while they were in office, he paused.
“There was a look at Silvio Berlusconi when I was representing Mike, but I think he ended up going to jail, if I’m not mistaken,” Gross said (He was nearly right: Berlusconi was convicted of various charges, but did community service.) “I think the private businesses and the government functions in Italy maybe are exactly what we should be worried about. And, obviously, there are non-democracies where the people in charge don’t get the concept of conflict of interest.”