The Only Remedy for Trump’s Conflicts of Interest is Vigilance

[This post was a Cape Cod Times op-ed column but includes historical material cut from the column for reasons of space.]

Even President-Elect Donald Trump’s staunchest supporters express concern about actual and potential conflicts of interest between his Presidential powers and his far-flung business activities. Trump may also try to work around the anti-nepotism statute to have his daughter or son-in-law help him in the government.

A conflict of interest exists whenever there is a conflict between the private interests and official responsibilities of a person in a position of public trust. There are many kinds of “private interests” that may create an actual conflict with one’s official duties but Federal laws regulating conflicts of interest are limiting to dealing with “private financial interests.” Generally Federal officials may not act – are disqualified or must recuse themselves from acting – on matters in which they have a personal financial interest. Presidents are exempt from these laws as the matters on which a President may act are governed by the Constitution and may not be limited by a mere statute.

In the last 170 years or so Presidents have generally been prosperous and frequently wealthy but nearly all were lawyers or career politicians and most were both. They typically did not have active or ongoing businesses. Hillary Clinton would have fit neatly into that pattern. That was not always so, however. Four of the first five and eight of the first 11 Presidents were plantation owners and slaveholders.

Although the federal government in those early days was not as involved in the daily lives of citizens and businessmen, two major areas of national policy directly affected the personal financial interests of slave-owning plantation owners. First, of course, was slavery itself and the extent to which it was permitted to extend into new territories and states. Second was the Tariff question.

From the beginning of the Republic until the arrival of the income tax in1914, the primary source of revenue for the national government was the tariff, duties charged on foreign imports. The tariffs were also used to protect developing domestic manufacturing, largely in the Northeast, from cheaper foreign imports, largely from Britain. The South and West of the country – including those Presidential plantation owners – desired access to cheaper foreign goods.

In more recent times though, Presidential wealth has typically been of the passive investment variety. Exceptions have been Warren Harding who owned a newspaper, Jimmy Carter’s peanut farm and, most notably, Lyndon Johnson whose wealth, accumulated during his time in Congress but kept in the name of his wife, was in television and radio stations, a federally regulated industry. His 1964 opponent and an enthusiastic pilot, Senator Barry Goldwater, was fond of pointing out that Austin Texas was the easiest large city to spot from the air because it was the only one with only one television station antenna.

Family members are another issue. There is no history of a President taking an action detrimental to the nation to benefit a family member but relatives have not always been shy about profiting from the perceived influence arising from the relationship. Certainly the relationships are occasionally tangled.

Woodrow Wilson’s Secretary of the Treasury, William Gibbs McAdoo was also his son-in-law, although the appointment occurred before the wedding.

FDR’s son, James Roosevelt, travelled to Britain with Joseph P. Kennedy in 1933 at the onset of both the New Deal and the repeal of prohibition Kennedy secured valuable distributorships to import Dewar’s and Haig & Haig Scotch Whiskey and Gordon’s gin as well as some lesser brands. For his trouble Jimmy Roosevelt got very expensive insurance on the flammable cargo placed through his newly established insurance agency.

An unfortunate Washington Post music critic who panned Presidential daughter Margaret Truman’s singing performance got a written Presidential response  that was, well, Trump-like.

Major John Eisenhower served under his father, the Commander-in-Chief. Billy Carter famously became a paid representative of the Libyan government.

President Kennedy appointed his inexperienced young brother Robert to be Attorney General, joking “I see no harm in giving my brother a little legal experience before he goes out to practice law.” This appointment was the impetus behind the Federal anti-nepotism law that confronts Trump now. JFK’s popularity in his home state also helped get his even less experienced youngest brother elected to the U.S. Senate.

The distinction between conflicts of interest and conflicts with “personal financial interests” can get fuzzy. The interactions among Hillary Clinton’s State Department, the Clinton Foundation, Bill Clinton’s speaking engagements and the Clintons’ personal wealth were apparently not regarded, officially at least, as a conflict between official duties and “personal financial interests.”

The career politicians who have been nearly all our Presidents for the last century have been able largely to avoid conflicts of their official duties and their “personal financial interests.” To the extent that their personal interests include retaining political office or popularity, however, they all inescapably act on matters in which they had a conflict of interest. Few campaign donations are made without an expectation of favorable action that might not occur on the merits alone. Every time a politician has to choose between something that is best for the country and something that is politically popular, he faces a conflict between his official responsibilities and his personal interest.

The pull of a strong friendship or family ties too can be as strong as a political or financial interest. Contrary to the modern conceit, conflicts of interest cannot be eliminated by statutes or regulations.

Donald Trump’s fortune is not liquid and he cannot reasonably be expected to divest himself of it. It might be smart to sell it all to his children on credit, taking back a security interest analogous to a mortgage. That would not eliminate conflicts of interest, however, but merely obscure them.

The only remedy is disclosure or, that lately hackneyed word, transparency. The President, along with other high federal officers, is required to file periodic financial statements. Given President-Elect Trump’s recent history on the subject, it might be well to require the IRS to post online all filings by a President – especially including any returns under audit.

It will be for the press, the Congress and the public to watch closely Presidential actions on matters in which he or a family member has a personal interest. A conflict of interest is a bad thing only when the President acts in his personal interest to the detriment of the public interest. President Trump’s actions in cases in which he has a conflict of interest of any kind must be known so they can be debated and, if necessary, acted upon by the public and Congress.

4 Comments Add yours

  1. dave flagg says:

    10-whore!! I’ll second that and I’ll raise you to get rid of all of them and start over. John Adams and company were not career politicians so why should they be now. Pat Leahy has been in there for forty years! REALLY no new ideas there for sure.

    $,02 worth

    df

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  2. scoutsdad says:

    Good afternoon Brian. I do so enjoy your posts/commentaries and look forward to your take on “what’s happening now”.  I’m not sure I am what one might call a staunch supporter at this point but I can be called one who staunchly supports the changes he proposes, thus far all of them! That being said I want to add just what my observation of this supposed, or potential, conflict of interest might be. Fir st of all I think it mostly to be a straw man, something to get the screech level to the point of placard  waving.  I do believe that transparency to a large extent is necessary and yet I have no faith, none, zip, nada, in the press or the IRS given what we have all witnessed over the last very few years. To me they have been compromised beyond the point of being believed without muc h deeper study or discovery. Even many in Congress, and I can name names (such as Harry Reid stating in the senate chambers that  Romney didn’t pay his taxes and as late as yesterday admitting it was a lie)  does not give me much confidence in their “opinions” or judge me nt calls about another political adversary.  As I watch the cabinet unfold with Mr. Trump I would much rather trust those I see surrounding him as being of good character, honest, incapable of being “bought”. M any took a solemn oath of honesty, much like we at Norwich did,  whether for their university or service, and most have been so very public for a large part of their successful lives so they are “transparent” to start with. I cannot imagine for any reason, any at all, that General Mattis, Ms. DeVos, Senator Sessions, Dr. Carson, General Kelly, to name some would EVER put up with any chicanery, ill egalities, conflicts of interest of any kind, and would be quick to call him out and resign. That is where my faith lies….NOT with the press, NOT with the congress, and NOT with the IRS. I believe in those who have bee n  wildly successful in there lives’ work and not political hacks. I believe in those who have faced the enemy and in General Kelly’s case felt the sacrifice of loss to combat. No…. don’t give me Dan Rather ( a phony Marine by the way) , Brian Williams, or Lois Lerner or Kiskanen, Harry Reid or Hank Johnson (no  Guam won’t tip over congressman). I’ll take those he has chosen to help drain that damned swamp to assure us all of no conflicts….you can bet on their vigilance.

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    1. I agree with every word.

      Like

  3. Watching Rex Tillerson and Jeff Sessions at their hearing I am confirmed in my agreement to your point that, in addition to the checks and balances, media and bureaucracy, these guys would raise hell at any chicanery.

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