Donald Trump’s Conflicts Of Interest Are A Matter Of Ethics And Good Governance, Not Just Law
How Trump plans to drain the swamp: he won’t
During the 2016 presidential campaign, Donald Trump promised to “drain the swamp” to eliminate the corruption in Washington, and he proposed a package of ethics reforms “to make our government honest once again.” Unfortunately, Mr. Trump’s definition of “swamp” is quite narrow. His proposed reforms deal only with the revolving door through which government officials become lobbyists and lobbyists become government officials. The global business ventures of the head of the United States government were conveniently carved out.
A month after the presidential election, the American people have a president whose massive business empire, which includes commercial interests spanning the globe, creates an unprecedented potential for a worldwide swamp. Mr. Trump, of course, doesn’t see it that way.
In an interview with the New York Times, he noted that the law is on his side and that “the president can’t have a conflict of interest.” He’s mostly right about the law being on his side. The conflict of interest rules that govern the financial situations of executive branch officials exempt the president, and there is nothing in the law requiring the president to take any measures to mitigate conflicts of interest. Some commentators, however, have pointed out that regardless of the presidential exemption, the president-elect’s involvement with foreign state-controlled companies could cause him to violate the emoluments clause of the US Constitution, which prohibits public servants from receiving anything of value from foreign governments without approval from Congress.
What is troubling about Mr. Trump’s claim that the president cannot have a conflict of interest is not so much that it is correct because he is exempt from conflict of interest rules or that it is incorrect because the emoluments clause poises him to violate the constitution; it is that it obfuscates the tension between his situation and the promise he made to the American people to rid the government of corruption. Whereas the legitimacy of his claim to be conflict-free rests solely on his interpretation of the existing legal structure governing presidential activities, his “drain the swamp” mantra and ethics reform proposals target activities that are perfectly legal but are nonetheless perceived by him — and a lot of the American public — as morally suspect. In other words, he is combating a specific facet of perceived corruption that is legal by proposing to change the law, but he is using the law to argue that he cannot be corrupted by his own morally dubious situation.
Given Mr. Trump’s campaign posture as an outsider looking to instill honesty in our government by changing bad rules and practices, it is only fair to look at his conflicting roles as president-elect and international mogul not just from a legal perspective but from one of ethics and good governance. As president of the United States, his primary duties are — or at least should be — those attached to the presidency, including commanding the military, directing foreign policy and safeguarding national security, and executing the nation’s laws in a manner that advances the public interest. Mr. Trump’s subordinate interests — those intertwined with his business operations, including his own personal financial gain and that of his family — compete with his ability to fulfill his presidential duties impartially. Because of this competition, which puts the public interest at risk, a conflict of interest exists. And the conflict exists regardless of what the law says.
Mr. Trump understands this, and so have previous presidents. Past presidents of wealth have, despite their exemption from conflict of interest laws, placed their assets in a blind trust. Under such an arrangement, the president’s investments are placed under professional management, where there is a fiduciary responsibility to manage them in the president’s best interests, but the president is “blind” to how they are managed. Of course, Trump’s situation is different from those of other presidents in that to establish a blind trust, he would need to sell off the businesses holdings that he built himself and that bear his name.
Admittedly, this course of action may not be ideal for Mr. Trump, but it is better for the country and the people, whose own interests are threatened by the only mitigation proposal he has so far made — to place the Trump Organization under his children’s control. This arrangement (erroneously referred to as a blind trust by Mr. Trump) does nothing to protect the nation’s interest against the encroachment of a billion-dollar, family-run enterprise’s appetite for profit and expansion. Mr. Trump will not only be aware of where his buildings are located and who his business partners are, but he will also have a close familial connection to those charged with managing the organization in which he has a financial stake. And the scheme is hardly even a nod to virtuous governance — one would assume his kids would have to run the company anyway, simply because Mr. Trump, being president, wouldn’t have the time.
If Mr. Trump is unwilling to sell off his assets, he needs to do more than simply bequeath his company to his heirs. He plans to hold a press conference in January to discuss his departure from the Trump Organization, but there has been no indication his overall plan has changed. The press conference was initially announced in series of tweets, and was slated for December 15. Mr. Trump tweeted that although he is not legally required to leave his company, he feels “it is visually important, as president, to in no way have a conflict of interest” with his business enterprises. He will, therefore, take the visually important step of removing himself completely, because, he says, “The Presidency is a far more important task!”
Who knows what kind of arrangement he’ll announce, but if he feels the presidency is that much more important than his business, Mr. Trump will remove his kids from his company, too. If he doesn’t build a wall between his presidential dealings and his business dealings that is tall enough and thick enough to assure the American public that they won’t intermingle, then we’ll all know for sure why he promised to “drain the swamp” — to make room for himself.