What must Trump do to resolve conflicts of interest?
7:20 PM, Jan 10, 2017
7:06 AM, Jan 11, 2017
President-elect Donald Trump is expected to hold a long-awaited news conference late Wednesday morning — the first since July 27, 2016. There are a lot questions that are certain to come up about how Trump will handle potential conflicts of interest with his businesses, his family and his Cabinet nominees.
To sort out the ethical issues facing the Trump White House, DecodeDC sat down with Richard Painter for this week's podcast. Painter teaches law at the University of Minnesota and worked in the White House as President George W. Bush’s chief ethics lawyer from 2005-2007. Listen to the podcast, plus there are highlights from the interview below.
DecodeDC: The public knew they were electing a businessman who had dealings around the world, so why is there so much concern about conflicts of interest?
Painter: We care about the ethics of everyone in public service, including the president of the United States. The people elected Donald Trump knowing he was a businessman, but they didn’t elect him to be a businessman. They elected him to become president of the United States. He was elected to serve the people not his own selfish interests. That requires him to sell or dispose of businesses in order to be conflict free.
DecodeDC: Is there anything in the constitution that requires a president to be conflict free?
Painter: With respect to foreign governments, yes. The Founders were very worried about foreign governments trying to influence United States government officials through payoffs and so they specifically stated in what is called the emoluments clause of the constitution that nobody holding a position of trust with the U.S. government could accept a gift or sale or stipend or emoluments, profits, from foreign governments. So they are going to have to clean that foreign government money out of the Trump business organization by January 20th or he’s going to be in violation of the US constitution.
DecodeDC: Is there anything in the constitution that says the Cabinet members have to dispose of assets or is that just voluntary?
Painter: There is a criminal conflict of interest statute that applies to everyone in the executive branch. Except, it does not technically apply to the president and the vice president although every other president and vice president has complied with it. The statute says that it is a crime to participate in any government matter that has a direct and predictable effect on your financial holdings. What that means as a practical matter is disposing of the financial holdings that create conflicts of interest. That’s why you see Rex Tillerson getting rid of all of his Exxon mobile stock before he becomes secretary of state. All of these billionaires and millionaires coming into the administration are going to have to get rid of a lot of stock and I think the president should do the same.
DecodeDC: So why doesn’t the conflict of interest law apply to the president and vice president?
Painter: Well, it doesn’t apply to members of congress either. There are some constitutional problems limiting elected officials from participating in certain government matters. So what we have relied on all these years is the president and vice president voluntarily avoiding any and all conflicts. And we expect members of congress to avoid those conflicts as well. But this is based on a political enforcement mechanism where the public will be disgusted and vote them out of office if they see these elected officials taking advantage of the conflict of interest statute they are exempt from.
DecodeDC: Why shouldn’t Donald Trump be able to have his kids around him to give him advice? What’s wrong with that?
Painter: Congress decided to pass an anti-nepotism statute in the late 1960s, although there’s some ambiguity about whether that applies to the White House. The worst case scenario would be for Mr. Trump to have family members acting as de facto government employees by giving him lots of advice, getting involved with operations in the West Wing, getting a lot of confidential information, but not being government employees so that they are not subject to the conflict of interest statutes or the financial disclosure requirements and might even be able to engage in insider trading. So either they should be government employees and try to comply with the anti-nepotism statute or they should stay out.
DecodeDC: There are some things Donald Trump has done to address concerns about conflicts of interest. He’s settled a complaint with the National Labor Relations Board over unionizing two hotels. He settled a suit over Trump University, and he says he wants to shutter his foundation. Does this assuage your concerns?
Painter: I am glad to see him get out of the foundation world. But he needs to do more. The for-profit businesses, which is where the money really is in the Trump organization, is where he needs to address those conflicts of interest. And so far, we have not heard of a satisfactory resolution.