President Trump has claimed that conflict of interest laws do not apply to him, and many of his followers have repeated that claim. I got so tired of hearing that he is exempted from conflict of interest laws simply because he is President that I did some research and wrote this blog. I am not an attorney, but I know how to investigate what attorneys have written and courts have ruled. Although the rules are not the same as those that pertain to other government employees, the president does have to obey conflict of interest laws.
President Trump, as every US President does, swore the public Oath of Office to “faithfully execute the Office of President of the United States, and … to … preserve, protect and defend the Constitution of the United States.” The US Constitution lists the powers and responsibilities of the president. Under Article 2, Section 3, one of those responsibilities is to make sure that the laws are faithfully executed. In other words, the president must follow the laws. Regardless of his personal opinions, he swore an oath to do that. It doesn’t matter if he agrees with the law or not. If the president does not faithfully execute the laws, he can be removed from office. That would be impeachment under “High crimes and Misdemeanors.”
Of course, the rules applying to a president are a complicated mess of laws. Lawyers and politicians have argued the ethics that apply to the president. The Office of Government Ethics, as specified under 5 CFR 2635.702, states that “an employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.” That seems straightforward — and it should be.
However, sadly, various government employees are exempted from that rule. Under 18 USC 202, Congress wrote: “except as otherwise provided in such sections, the terms “officer” and “employee” in sections 203, 205, 207 through 209, and 218 of this title shall not include the President, the Vice President, a Member of Congress, or a Federal judge.” There it is: that’s what Trump meant when he claimed he did not have to worry about conflicts of interest. Isn’t he lucky that Congress exempted itself, and the President, from such a worrisome law?
Once again, it is not that simple. In 1983, the Office of Government Ethics wrote with the support of the Department of Justice that the president should follow the conflict of interest law. Specifically, although the president and vice president were exempt from the conflict of interest law due to 18 USC 202, both of them should “conduct themselves as if they were so bound.” That legal opinion specifically referred to Ronald Reagan, but it continues as government policy and thus, government law.
All contemporary US Presidents prior to Donald Trump removed themselves from direct control of or indirect interest in their businesses so that they would not be tainted by ethical problems. After all, the president is supposed to uphold the constitution. That’s his job. A President who is concerned about his/her personal finances and one who worries about his/her personal businesses could be seen as not doing that job. At the least it could be considered a distraction from that job; at the worst, it could be viewed as a crime. A crime might lead to impeachment. Most Presidents didn’t want to take the chance.
To further complicate the law, US Constitution Article I, Section 9, Clause 8 states that a person holding any position cannot accept any kind of present, emolument, office, or title from any foreign state. This is called the “Emoluments Clause.” Emolument means any profit or fees received due to holding an office. In a recent interview, “George Washington law professor Steven Schooner said that Trump could have an ‘impeachment issue because you have foreign states basically paying money to the Trump Organization by using their hotels.’”
Let’s consider that statement. One of Donald Trump’s businesses is the Mar-a-Lago Club in Florida. The president turned over the company, Trump Organization, to his two sons and said he has put his assets into some kind of trust — we don’t know the type of trust because it has not been made public. But the president travels there regularly and calls it the Winter Whitehouse. Inside the resort, the presidential links continue with his photograph on the walls, the family crest, and the name branded on everything. When Trump took office, the fees to join Mar-a-Lago increased to $200,000 plus a yearly membership fee of $14,000. That seems like an obvious profiting from his presidency. In addition, there is the elephant in the living room question. If his children prosper from Mar-a-Lago, does their father also make money from those visits?
In the first month that President Trump was in office, he spent three weekends at Mar-a-Lago. In fact, he entertained Japanese Prime Minister Abe there. Although a press release said that Abe’s stay was a personal gift from Trump, Mar-a-Lago certainly got a lot of publicity from the stay and more news coverage from their public dinner (with its huge potential for breach of security). Publicity is considered a form of remuneration. Ignoring the potential security issue, that publicity highlights an ethics problem.
What if a foreign official stays at one of Trump’s US hotels? What if a foreign government leases a floor at one? Does that influence Trump’s policies? It would be difficult to think it would not. Especially at Mar-a-Lago, with the $214,000 fee just to have the privilege of reserving a night’s stay (or ordering dinner); it seems unlikely that money would not become a consideration. And that fee might offer a chance to talk to the president, his wife, or his cabinet members.
Things get even more confusing when we consider that Trump continues to maintain hotel assets in other countries. In addition, his US hotels involve foreign investors and have active agreements with foreign governments. As Norman Eisen, the man President Obama consulted about ethics, said “we’ve never had a president who seems to insist on breaking the precedent set by every previous president for at least four decades of doing a true blind trust or its equivalent.”
Let’s consider another law, USC 502 the Ethics Reform Act of 1989. USC 502 states that an officer or employee cannot “receive compensation for affiliating with or being employed by a firm, partnership, association, corporation” nor “serve for compensation as an officer or member of the board of any association, corporation, or other entity.” It prohibits the use of an official’s name on any organization. The US Office of Government Ethics ruling forbids the use of the official’s name in law firms, real estate agencies, and consulting. That seems straight-forward: the name “Trump” could no longer be licensed to a corporation, and if it were to continue as the brand, the president would not be allowed to receive compensation for the branding. This ruling was tested when another famous wealthy Republican, Nelson Rockefeller (think of Rockefeller Center in New York City), took over the office of Vice President. At that time, both the Justice Department and Congress upheld that the ruling covered the offices of vice president and president.
Trump said it would be too complicated to set up blind trusts during his presidency. It is likely to be more than complicated if he continues as the head of corporations that are affected by his job as US President. Nelson Rockefeller managed to put his vast assets into blind trusts, and he managed to release his financial documents too. Perhaps Donald Trump could too. Then we would know that he truly wants to uphold the laws as he swore to do.
As previously mentioned, regardless of the loophole arranged by Congress, the Office of Government Ethics expects a president to follow the standards of the conflict of interest laws. That expectation applies to his family too. Since the Emoluments Clause rejects payments, maintaining an interest in hotels brings the appearance of Trump receiving payments for services; depending on the type of trust (and ignoring the potential problems based on the fact that his sons are running the businesses), those potential payments might be actual ones. In addition, USC 502 forbids the use of a president’s name to obtain money. Sure, Congress could repeal the name ban, but the Emoluments Clause in the US Constitution would still stand.
The law seems clear, and Trump seems to be violating it. He should follow the precedent of previous presidents and divest from his businesses. If he does not, Congress could impeach him. Yes, I wrote “could” because they don’t have to. Since Republicans control both Senate and House, whether they will is another question.
— Footnotes —
 The transcript of the official letter can be read here: https://www.oge.gov/Web/OGE.nsf/All%20Advisories%20by%20Year/01F8E09232041FD185257E96005FBBE8/%24FILE/64ed9ad9bd294b45a88ac8729a97968a3.pdf (2/14/2017).
 The Emolument Clause is separate from the laws regarding bribery although they certainly overlap. Simple put, anything considered a bribe can be reason for impeachment.
 Rachel Stockman “Trump is Right, Conflict-of-Interest Rules Don’t Apply to Him” Law Newz: Opinion online at http://lawnewz.com/high-profile/trump-is-right-conflict-of-interest-rules-dont-apply-to-him/ (2/14/2017).
 “The Ethics Of Trump Hosting Japan’s Shinzo Abe At Mar-A-Lago” NPR Morning Edition online at http://www.npr.org/2017/02/10/514458649/the-ethics-of-trump-hosting-japans-shinzo-abe-at-mar-a-lago (2/14/2017).
 Julie Bykowicz and Mark Sherman, “Why conflict of interest rules apply differently to the president” PBS Newshour: The Rundown (2016) online at http://www.pbs.org/newshour/rundown/conflict-interest-rules-apply-differently-president/ (2/14/2017).
 “USC 503 Limitations on outside employment Cornell University Law School Legal Information Institute online at https://www.law.cornell.edu/uscode/html/uscode05a/usc_sec_05a_00000502—-000-.html (2/14/20107).
 Andrew Stark “Can a President Trump Keep His Business Intact?” The Atlantic (2016) online at https://www.theatlantic.com/politics/archive/2016/10/trump-holdings-conflict-of-interest/503333/ (2/14/2017).
 Lily Rothman “Actually, Nelson Rockefeller’s Fortune Was Scrutinized Too” Time (2017) online at http://time.com/4631550/donald-trump-nelson-rockefeller-history-conflicts-interest/(2/22/2017).