Donald Trump’s plan for mitigating, not eliminating, the potential for conflicts between his business and his presidency has not satisfied the most senior executive branch ethics regulators or a number of the commentators well-versed in ethics standards. He will retain his interest in his businesses known as the Trump Organization, but not management control, which will pass to his sons. His counsel has detailed various steps to accomplish his “complete” severance or isolation from business operations. To the extent that the business surrenders any advantage from the presidency, it is a cost to the foreign operations: no new foreign deals, and all foreign government payments to his hotel will be donated to the Treasury. Mr. Trump maintains that he is not required to go farther and, in the words of his counsel, he “should not be expected to destroy the company be built.”
It is possible that under pressure, the Trump team will reverse course and yield to the demand for divestment and a blind trust, but after all the time the Trump team and counsel have devoted to considering his course of action, this seems unlikely. Then the question would be: if this is the plan, how exactly will it work, and with what degree of transparency allowing for an evaluation of the seriousness and effectiveness of the controls the Trump Organization plans to put in place?
For example, the Organization has not named but will establish the positions of ethics adviser and chief compliance counsel. The adviser will review all domestic deals and issue written approvals of any that “potentially raise ethics or conflict of interest concerns.” The chief compliance counsel will be charged with ensuring that the “Trump businesses… are operating at the highest levels of integrity and not taking any actions that could be perceived as exploiting the office of the presidency.”
The relationship between the two, adviser and counsel, is one question. Will the adviser be required to consult with the chief compliance counsel in the course of reviewing a deal? According to Trump counsel, the adviser is a member of the “management team.” Normally, management would turn to counsel for advice, especially where the issue is one of law as well as applicable ethical standards (the ethics adviser is responsible for ensuring that “the Trump Organization continues to operate in accordance with the highest… legal… standards.”)(emphasis added). Does this plan anticipate that the adviser will issue an approval only with the concurrence of the compliance counsel?
The comments of Trump counsel yesterday also invite a question about the scope of activities that would be presented for review. She spoke of a review of “new deals, actions, and transactions,” and it not clear what each terms covers and who makes that determination.
An additional set of questions concern the authority of both the adviser and the counsel to obtain access within the company to information relevant to the conduct of their duties. How is a deal presented for review, and will the ethics adviser be able to seek without restriction any information, either documents or through interviews, to supplement what is provided in the initial request?
Will the adviser have a call on other resources to assist in deal review? On what terms would the adviser be hired, paid, and subject to dismissal? The adviser is not described as “independent”: in fact, he or she will be a member of the management team. There was some suggestion that the Trump team consider creating a role of “independent monitor”–described by Andrew Ross Sorkin, a proponent of this approach, as “ an independent overseer with unfettered access to [the Trump Organization] who will provide regular reports to the public about any possible instances of conflicts.” This did not come to pass and the adviser position to be established instead remains undefined, except that he or she is part of “ management.”
These are among the questions about this process that would be addressed by the release of the relevant Organization governing documents. Other transparency measures might include a corporate policy that in the event that a question is raised about a Trump Organization business activity, the written approval issued by the ethics adviser will be made publicly available. The Organization could also report annually on these approvals.
Aside from the other concerns that are being raised about the plan–including, most fundamentally, its adequacy–it is difficult to assess the efficacy of what Mr. Trump proposes to do without details, without an appropriate measure of transparency and accountability, of this kind.