Presidents and Conflicts of Interest

November 28, 2016
posted by Bob Bauer

The questions about the President-Elect’s business interests have so far revolved around those benefits he might enjoy from foreign holdings and transactions, and still more specifically those provided in part by foreign governments. It is argued that a constitutional issue arises under the Emoluments Clause barring any “person holding any office of profit or trust”, without the consent of the Congress, from accepting any gift from a foreign government. Some scholars contend that the Clause likely applies to presidents; others disagree.

But the attention paid to foreign source business income has left mostly to one side the larger question of the leeway presidents have to operate outside the conflict of interest rules all senior executive branch officials (other than the Vice President) have to follow. For example, presidents and vice presidents are not subject to gift restrictions. 5 C.F.R. §2635.204(j). They may accept any and all gifts from any and all sources (except, on the Emoluments theory, from foreign governments). The exception rests on the belief that considerations of etiquette and protocol require allowing a president to accept personal gifts.

Most presidents, most of the time, accept such gifts but only in trust for the United States. But the rule gives them the choice. And that choice in turn is governed by little other than a concern for appearances or, if the gift is proffered by a favor-seeker, by the wish to avoid liability for bribery. The only requirement is public disclosure: presidents must report once a year the gifts they are free to receive.

In other words, this is a rule buttressed by a norm: the rule allows for the acceptance of the gift, but the norm operates to limit the circumstances in which the president would normally accept a gift for himself.   The norm does all the work. Another example of a norm addressed to conflicts of interest, but in this instance operating through transparency, is the traditional release of tax returns. Mr. Trump declined to release them during the campaign, or any time prior to the conclusion of the audit now in progress. There is no rule; the choice is his.

So while the President-Elect overstates his view that Presidents are free of all conflict of interest rules–a president can be prosecuted, not just impeached, for bribery–he is not wrong that the rules don’t apply to the Chief Executive as they do to all other senior government employees.

David Rivkin and Lee Casey offer up a range of justifications for this presidential freedom from more extensive conflict of interest rules. They say that to attempt to regulate these conflicts will discourage wealthy people from running for office; they don’t seem to accept the proposition that someone seeking extraordinary political power might give something up for it and, if unwilling to do so, might be revealing something troubling about motivation or suitability. Or as Peggy Noon put the point in the Wall Street Journal: his job now is different and “it requires sacrifice.”

But Rivkin and Casey maintain that that Mr. Trump’s is a special case: his business is personal to him, one that he has branded and managed all his life; and so apparently there is some basic unfairness in asking him to bear this loss. They then suggest–but it seems questionable that they truly believe–that Congress is blocked by separation-of-powers principles from subjecting the president to more extensive conflict of interest regulation, including restrictions on gifts. In the middle of this, Rivkin and Casey get to the heart of the matter by advising their readers that Trump would never agree anyway to a blind trust–so why bother to argue about it?

Yet, not too many years ago, Republicans in Congress, in their complaints about President Bill Clinton’s Administration, raised concerns about presidential gift acceptance practices. Democrats responded with the suggestion that perhaps there should be rules. In minority views, senior House Democrats wrote that while “the vast majority of those giving gifts to the President are well-meaning, honest people…some who give gifts want to gain influence and access to policymakers,” and they noted possible measures, such as placing limits on the amounts and timing of gifts, and more public disclosure. These proposals did not go anywhere.

Rivkin and Casey argue that a President-Elect or any president can manage the conflicts more informally, at his or her discretion. Mr. Trump can, for example, wall himself off from communications with those managing his business interests, including his children, and the Trump family members could consult on a case-by-case basis with the White House Counsel on any apparent conflicts between those interests and Mr. Trump’s official duties. This does not seem to be a practical procedure. The President-Elect’s business interests are apparently complex and global, and lawyers would have to have timely notice of the issues, including appearance issues, raised by a host of transactions occurring regularly, if not continuously, all around the world.

The question here, as in the matter of the tax returns, is whether these concerns should left to norms–to presidential practice and discretion–and when the choice should be taken away and supplanted by a legal requirement. Giving a president discretion in managing conflicts of interest must reflect a view that it is in the public interest to have him retain this flexibility. Perhaps the thought is that the electorate has passed on these issues–that it has “vetted’ him–and that all that matters is his accountability to the voters.

This reasoning is not especially powerful. The “vetting” imperative yields from time to time, perhaps always, to the voters’ other concerns.  That does not mean, of course, that voters are indifferent to presidential conflicts of interest. Moreover, in the case of gifts, a president’s freedom to accept personal gifts cannot have much to do with a need to attend to “etiquette” and avoid unnecessary offense to gift givers. After all, presidents can and do accept these gifts–in the trust for the United States. No offense need be given.

Right now we have rules that prohibit outright trades of policy for personal gain, whereas the norms are meant to address the need to guard against a more generalized, but still insidious, sense of obligation that an officeholder may feel toward those who have provided them a financial benefit even if they are not asked for something specific in return. There is evidence that the norms may be fading and that, in the matters of gifts and the release of tax information, reliance on presidential discretion is not enough. So the time appears to have arrived to give thoroughgoing consideration to replacing the norms with reasonably drawn rules.

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