The Wallace Global Fund fired Morgan Lewis for advising Donald Trump on the mechanisms for controlling conflict of interest. It scorned the firm’s legal analysis and its dismissal of counsel was meant to keep the Fund from being “complicit” in the President’s disregard of legal and ethical norms. The Fund has concluded that the president’s actions are, on the ethical merits, clearly indefensible--case closed. So the Fund deems the lawyers culpable for putting their names and reputations behind what it has concluded is beyond the pale.
There is a different way of looking at what may exceptional about the Trump ethics regime, and it does not require agreement on specific violations of ethical obligations, or arguments about the viability of specific legal theories, or the questioning of the professional standards followed by law firms or lawyers. It is more concerned with a change, for the worse, in the institutional safeguards for keeping government service under public ethical controls. The problem could be thought of as a sort of privatization of public ethics.
This privatizing element has been introduced through certain features of the Trump business interests, and even more, the issues presented by the family members that the President would like to have by his side. Some special arrangement is generally thought necessary to allow the president to have the counsel and company of his daughter and son in-law. They will take unpaid positions within the White House, but in form, as recently announced, they will be treated as employees subject to conflict of interest rules that apply to all others.
Both Mr. Kushner and Ms. Trump have complex continuing interests in their businesses, and they argue that there is no fair or practical way to dispose of many of them. They will maintain and retain enough connection to their business to monitor, with the advice of counsel, potential problems that may arise. A similar mechanism was established by the president to administer his “trust,” run by his sons, and advised by a special ethics counsel selected from private practice. His trust also has added a compliance adviser, a long time lawyer and official in the Trump business.
All of this occurs “in the family,” and this is largely how it is reported. But it does not have to end there in future administrations. Another president may feel free to appoint “volunteer” senior White House advisers without family ties but with similarly far-flung and complex business interests. Paid their dollar a year, they would maintain much of their financial interests, perhaps excluding the simplest conflicts presented by easily disposable stock holdings. They would also set up with their lawyers a private arrangement for the management of any conflicts.
President Trump has more detail to provide on what he means by a “major investigation” into voter fraud. Already, however, he has drawn sharp objections to his preoccupation with illegal voting, including from within his own party and the National Association of Secretaries of State, on the basis that there is no evidence to support his claim. His own press secretary seems to have retreated to the position that "he [the president] believes what he believes."
But it cannot be lost in this debate that the President is taking an extraordinary step with the contrivance of some sort of “investigation,” whatever the form takes. He is moving, openly and aggressively and within days of his inauguration, to use his public office to advance his personal political interests as a candidate for office. One such interest, apparently, is to contest the popular vote count of the 2016 general election--his election. The second, it is fair to assume, is to do everything necessary to establish the fraud he is convinced is rampant and push for measures he deems helpful to his next election campaign.
The first of these objectives is quirky. It is not the usual course of events that a candidate challenges the outcome of an election that he won. But it is still his own election and he intends now, as President, to put the 2016 popular vote margin in question for his own political benefit, to satisfy--as he sees it--a political need.
The second of these interests is his own reelection. Until we learn otherwise, Mr. Trump will be a candidate for re-election in 2020. Now, as president, he intends to order up some investigation with implications for this candidacy. Critical commentators have touched on this concern to some degree, warning that this investigation might be intended to feed into the broader GOP initiative on voter ID and other restrictions on the franchise. The investigation would serve to spur proposals for further additional restrictions that, while unwarranted as policy but designed to burden voters, could discourage or impede voting primarily in communities with high Democratic support. This is a possible, perhaps even a likely, outcome, and it both deeply objectionable and sure to spark a new round of voting rights litigation. But the context in which the President has raised the issue is not his party’s programmatic attention to voter fraud, but his election, the 2016 election, and his conviction that it cost him millions of votes.
CREW and its distinguished legal team has produced a sharply turned-out complaint seeking a declaratory judgment and associated injunctive relief to redress their claim that President Trump is violating and will continue to violate the Emoluments Clause. It may face long odds: there is a challenging question of standing, and, spooked by the unprecedented nature of the intervention being requested, courts may be eager to seize on the standing issue as their way out. But if CREW is motivated to keep the pressure on the President, increasing the cost of his adoption of a controversial resolution of this issue, the complaint will have served at least that purpose.
There is some suggestion that CREW’s team may hope (and indeed have reason) to declare victory if awarded enough discovery to pry the President’s tax returns out of his hands. In announcing the suit, CREW’s Chair has stated that “President Trump is the first president in decades not to release his tax returns. Seventy five percent of Americans want to see the President’s tax returns and so do we. We will seek those in discovery in this case in order to establish the details of the emoluments clause violations here.” The open pursuit of that objective would not necessarily move a court in CREW’s direction. A court that is disinclined to jump into this battle may be similarly reluctant to be the chosen vehicle for setting the political conflict over the disclosure of the returns.
Then there is the other branch, Congress, which CREW repeatedly notes must consent under the Clause to the President’s acceptance of any “emolument.” This is an intriguing facet of the legal action. A court could give CREW what it is looking for: agreement that the President’s business interests constitute a channel for acceptance of emoluments, and forcing the Republican Congress to decide whether step in and, by consenting,” save Trump’s current plan for “separating” himself from those interests without surrendering them. Congress would then own that choice, and it would be a choice: sanction the business arrangements and the threat of conflicts, or sting the President by withholding its consent.
The majority in Congress would be unhappy with this possible outcome, but maybe less so with another. If a court dismisses the suit, and the dismissal is upheld on an appeal should one be filed, the Republicans can and surely will claim--as will the White House--that the President’s position has been vindicated. That would not necessarily be true, of course, if the court resolves the case against CREW on standing. Or even if the court, rejecting the CREW standing theory, hints in dicta at sympathy for the substantive constitutional claim. The Republican “message” would, predictably, be that the courts had settled the issue, and that Trump was in the clear. (And that would be still more the case if the court’s dicta express sympathy for defendant Trump’s position.)
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?