For Trump, Even Carrying Out Core Responsibilities of the Presidency Creates Conflicts

With Donald Trump’s inauguration less than a month away, there’s been a lot of talk in Washington about two topics: first, the unprecedented conflicts of interest posed by the Trump presidency and, second, the individuals Trump is nominating to fill important government positions. But one thing there hasn’t been sufficient conversation about is the intersection of those two topics — the conflicts of interest posed by Trump naming the heads of agencies that are, or may be, investigating him and his businesses. It’s yet another reason — as if the Constitution’s Emoluments Clauses weren’t enough — why Trump should be divesting and putting all of his assets in a blind trust.

The U.S. Constitution provides that the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.” In other words, the President (and the President alone) has the power to nominate the heads of federal agencies and other top federal officers. When the President makes those nominations, he should be thinking about who can best lead the federal government and serve the national interest. But when President Trump makes those nominations, the people he selects will have the power to affect not only the national interest, but also his own personal interests.

Consider some of the possible conflicts of interest. Trump repeatedly claimed during the presidential campaign (although he did not offer proof) that he is being audited by the IRS. Indeed, according to Trump, he is regularly audited: “Every year they audit me, audit me, audit me,” he said last February. In late 2017, the current IRS Commissioner’s term will expire, and Trump will have the responsibility for naming his successor — the person who will lead the agency that has, according to Trump, been auditing him for nearly a decade. It’s difficult not to worry about the possibility that in deciding whom to pick Trump will be motivated, at least in part, by his views about which candidate might look most favorably on whatever tax moves have put his tax returns under investigation for so long. It’s also impossible not to worry that whomever Trump picks will feel some debt to the man who put him into office.

Or consider the many Trump hotels that are subject to the labor laws enforced by the National Labor Relations Board. It’s not difficult to imagine conflicts arising between employees at Trump hotels and the hotel management. Indeed, one doesn’t have to just imagine it — until very recently, Trump’s Las Vegas hotel was refusing to negotiate with the union that a majority of its employees chose to represent them. That dispute was before the National Labor Relations Board — a board that will soon have three of its five members appointed by Trump. Although the Las Vegas hotel dispute recently settled, there’s one complaint still pending before the Board, and it’s not hard to imagine that similar disputes will arise in the near future, given the number of Trump hotels around the country. And again it’s difficult not to worry about the possibility that in deciding whom to appoint to the NLRB, Trump will be motivated, at least in part, by his views about which candidate might be most inclined to side with Trump hotel management. Likewise, it’s impossible not to worry that Trump’s picks will feel some debt to the man who put them in office.

Or to take another example, one can imagine developments of the Trump organization running afoul of environmental regulations. This recent New York Times story explained how the site of a failed business venture by Donald Trump Jr. is now in need of environmental cleanup, and South Carolina regulators are deciding whether the current owner, a Trump Organization affiliate, qualifies for a state program that allows voluntary cleanup while providing protection against liability. While that story involves a state program, it doesn’t require a great deal of creativity to imagine that other similar ventures might be the subject of regulatory enforcement by federal environmental regulators. And who appoints the head of the federal environmental regulator, the Environmental Protection Agency? The President, of course. In this case, the President has already named his choice: Oklahoma Attorney General Scott Pruitt, who is not only a climate change denier, but who also has complained about “unnecessary EPA regulations.”

Or consider one final example, particularly relevant given all of these (and other) potential conflicts in the news. The Office of Government Ethics is the independent federal agency which is responsible for overseeing ethics in the executive branch. As its mission statement declares, “[w]hen government decisions are made free from conflicts of interest, the public can have greater confidence in the integrity of executive branch programs and operations.” OGE recently made news when its Twitter account praised the President-elect for commitments to divest his business holdings that (unfortunately) he had not actually made. As an agency spokesman subsequently explained, the agency believes “[d]ivestiture resolves conflicts of interest in a way that transferring control does not,” and it was “willing and eager” to help the incoming President resolve all conflicts issues. The current Director’s term expires in early 2018. It’s not difficult to worry about what ethical issues may be on Trump’s mind as he looks for someone to replace him.

So long as Trump refuses to sell his vast business holdings (and that appears to be his plan, notwithstanding the constitutional violations that would create), these conflicts will be insoluble. The President cannot delegate his nomination authority to another official.

That does make the Senate’s constitutional role of providing “advice and consent” particularly important. The Senate needs to be able to assess whether the individuals Trump is naming can be trusted to work in the interest of the public, not the man who is appointing them to high office. Of course, the Senate can’t provide informed “advice and consent” until it knows the full extent of the conflicts — and it can’t know that until Trump provides full financial disclosure of all of his holdings.

There’s less than a month left until Trump’s inauguration. It’s time that he provides some transparency — and it’s time that he takes the steps necessary to ensure that he’s working in the people’s interest, not his own.