Tag: ethics

Conflicts of Interest and the Emoluments Clause

Let’s not bury the lede: you’ve probably read about Trump’s conflicts of interest. Maybe you’re wondering what can be done about it. The current answer is: convince Congress to investigate, but that approach has little chance of happening and recourse. So, I’m not sure.

But first a little explanation:

Since Trump announced his candidacy his potential conflicts of interest have been widely reported. The Atlantic‘s “Donald Trump’s Conflicts of Interest: A Crib Sheet” lists specific conflicts in an accessible manner. The Guardian visualized them. And The New York Times’  in-depth “Potential Conflicts Around the Globe for Trump, the Businessman President” explores possible political repercussions. Many of these pieces also point out that Trump would be exempt from conflicts due to a clause in the Constitution, Title 18 Section 208 of the U.S. code. The clause deals with financial interests of executive branch officers and employees, but has historically not applied to the President and Vice President.

Much of the current understanding stems from a recent interpretation. In considering Nelson A. Rockefeller for the Vice Presidency in 1974, Acting Attorney General Laurence H. Silberman wrote opinions for the Office of the President and the Committee on Rules and Administration (which held a hearing on Rockefeller’s nomination) arguing that the “officer or employee of the executive branch” language in Title 18 Section 208 did not encompass office of the Vice President.

In Silberman’s 28 August 1974 memo (“Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution“) to Richard T. Burress, an assistant to President Ford [emphasis added]:

1. Section 208 does not expressly apply to either the President or the Vice President. The legislative history shows no such intention, and contains some indication to the contrary. The text of subsection (b) of section 208, by referring to “the Government official responsible for appointment to his position” tends to indicate that the section applies only to appointed officials–which category, at the time section 208 was enacted, could not include the Vice President. Some doubt exists as to the constitutionality of applying section 208 to the President; and such doubt is avoided with respect, to the Vice President only because his single constitutionally enumerated function (presiding over the Senate) is not an, “Executive Branch” function–which fact removes it from the reach of section 208, but also arguably removes the Vice President from coverage. For these reasons, it seems likely that section 208 should not be interpreted to apply to the President or Vice President.

Silberman leans on history to demonstrate the intent of the statue was not to include the President and Vice President: “Moreover, the legislative history of sections 202-209 (the conflict of interest provisions), as evidenced by committee reports and debates in the Senate and the House of Representatives, fails to demonstrate that section 208 was intended to apply to the Chief Executive and his immediate successor.”

The heart of Silberman’s argument is in his explanation of the unique position of the President and Vice President in the Executive Branch:

The role of the Presidency is a vital aspect of the administration of conflict of interest restrictions in the executive branch, and the proper function of the Chief Executive in this field is a major center of consideration in this study. But the conflict of interest problems of the President and the Vice President as individual persons must inevitably be created separately from the rest of the executive branch. For example, as Chief of State, the President is the inevitable target of a running stream of symbolic gifts pouring in from all over the world, for reasons ranging from the best to the worst. The uniqueness of the President’s situation is also illustrated by the fact that disqualification of the President from policy decisions because of personal conflicting interests is inconceivable. Personal conflict of interest problems of the Presidency and the Vice Presidency are unique and are therefore not within the scope of this book.

His 20 September 1974 memo to the Committee on Rules and Administration, “More on Conflict of Interest Law and the Nomination of Nelson A. Rockefeller to be Vice President,” elaborates on these arguments. He repeats many of his interpretations of Title 18 Section 208, adding (on p. 4) that, “The effect of applying section 208 to the President is certainly either to disable him from performing some of the functions prescribed by the Constitution or to establish a qualification for his serving as President (to wit, elimination of financial conflicts) beyond those contained in the Constitution.”

He also cites Title 18 Section 431 because of a question raised regarding the permissibility of Rockefeller having financial connections to government contractors while holding office. The statute deals with members of congress holding contracts, and much of the letter grapples with the question of whether the VP is truly a “Member of Congress.” (Silberman argues no).

Subsequently the “Emoluments Clause” has been invoked as a possible method of restraint. The relevant part of the Constitution is Article I, Section 9:

No title of nobility shall be granted by the United States: and 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.

Writing for the Washington Post Jonathan Adler lays out the legal ambiguities and difficulties of citing this clause.

Which leaves us with Congress. Rep. Elijah Cummings requested that Rep. Jason Chaffetz, Chairman of the Committee on Oversight and Government Reform, begin a review of Trump’s financial arrangements. After receiving no response, Cummings sent a follow-up (co-signed by all 17 Democratic members of the Committee) on 28 November. To date, Chaffetz has not responded.

On 30 November Trump posted on Twitter that he would be taken “completely out of business operations.” The U.S. Office of Government Ethics replied (possibly as a joke) that the Office “applauds the ‘total’ divestiture decision.” Evidently even the OGE recognizes that humor is one of the few responses remaining.