Rule of Law

OP-ED: Even Core Responsibilities of the Presidency Create Conflicts for Trump

The Senate is conducting a confirmation hearing blitz this week and next for 10 of President-elect Donald Trump’s announced Cabinet-level choices. The dizzying speed and compressed time in which these hearings are being held is troubling enough to those who prefer more thoughtful deliberation of anyone who, if confirmed, would wield great power. Worse – because we do not know the extent of the president-elect’s holdings and he has refused to sell his business and put the assets in a blind trust – his nominees could place their boss’s private business interests ahead of their duty to protect the national interest.

As he appoints agency heads throughout the federal government, Trump is or will be choosing people to lead agencies that not only are investigating or could investigate his businesses, but also that could enrich them. That is why the Senate’s constitutional duty of “advice and consent” is so important: it is supposed to help ensure that nominees can be trusted to work in the interest of the public, not in the interest of the man advancing their careers.

Of course, the Senate cannot provide informed “advice and consent” without a full picture of the potential conflicts. And it cannot know that full picture unless Trump fully discloses his debts and assets. As if Trump’s imminent collision with the Constitution’s Emoluments Clauses were not enough, this additional possibility of conflict is a significant reason why Trump should release his tax returns, sell his businesses and place an independent trustee in charge of a blind trust.

The U.S. Constitution provides that the president, and the president alone, nominates the heads of federal agencies and other top federal officers. Each executive branch officer will swear an oath to “support and defend the Constitution.” Unless Trump sells his businesses, he will test the strength and independence of each appointee to avoid decisions designed to serve the president’s private interests.

Consider some of the possible conflicts that could arise: Trump’s chosen attorney general, who will oversee the Office of Legal Counsel within the Justice Department, could bless Trump’s violations of the Emoluments Clauses. His secretary of state could weigh policy decisions based on how they will affect Trump’s overseas properties. His transportation secretary could make infrastructure choices that benefit his domestic properties.

A number of serious conflicts are already looming.

Trump claimed during the presidential campaign that he is regularly audited by the IRS. “Every year they audit me, audit me, audit me,” he said. The current IRS Commissioner’s term will expire in late 2017 and Trump will name his successor—the person who will lead the agency that, according to Trump, has been auditing him for more than a decade. In appointing the next IRS Commissioner, will Trump be motivated, at least in part, by which candidate he thinks would look most favorably on whatever has drawn the attention of the auditors? And will Trump’s choice for the post feel a sense of debt to the man who elevated him or her to high office?

Or consider the many Trump hotels subject to labor laws enforced by the National Labor Relations Board (NLRB). One need not imagine labor conflicts arising between Trump hotel employees and management; they have already occurred. Until a month ago, a Trump hotel in Las Vegas refused to negotiate with the union representing the hotel’s employees. The NLRB heard the case, and although the parties settled, one complaint is still pending. Trump will soon have the opportunity to appoint two of the NLRB’s five members and he will be able to appoint a third at the end of this year. It is no stretch to think he might favor candidates who most often side with management in disputes or that his nominees will feel indebted to the man who appointed them.

Last month The New York Times reported that South Carolina regulators are deciding if a failed business venture owned by an affiliate of the Trump Organization qualifies for a program that permits voluntary environmental cleanup and protects against liability. Although this case involves a state program, it is not beyond reason that other Trump ventures could draw the notice of federal environmental regulators. Trump, in fact, has already named his Environmental Protection Agency administrator – Oklahoma Attorney General Scott Pruitt, a climate change denier, who has long battled against “unnecessary EPA regulations.”

Since Trump refuses to sell his vast business holdings, these types of conflicts and the possibility of widespread corruption will hound him throughout his presidency. To preserve the integrity of the office of the president, Trump should reconsider and take the steps necessary to ensure that he – and the people who work in his Administration – are truly working for the people’s interest and not the president’s.