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Sunday, August 20, 2017

Reprinted with permission from Media Matters

Government ethics experts say President-elect Donald Trump needs to divest himself completely of his business holdings to avoid any conflict of interest, and that he should give reporters legal documentation of his plan when he unveils it in two weeks.

The president-elect has recently faced heavy criticism over a vast array of potential conflicts of interest between his business empire and his upcoming administration.

On Wednesday, Trump issued a series of tweets announcing a “major news conference” with his children in which he will “discuss the fact that [he] will be leaving” his business “in total.” Trump claimed that while he was not legally “mandated” to make this move, he felt it “is visually important, as President, to in no way have a conflict of interest with my various businesses.”

Many major media outlets responded to Trump’s announcement with headlines parroting Trump’s suggestion that he will be completely cutting ties to focus on the presidency and avoid conflicts.

But legal experts tell Media Matters that Trump’s vague announcement does little to address the potential conflicts, and any plan short of Trump completely selling his interests will leave the window open for an ethical mess. They also point out that Trump simply claiming to be separate from the business but leaving his children in charge is another major ethical red flag.

Geoffrey Hazard, professor of law and a government ethics expert at the University of Pennsylvania Law School and University of California Hastings Law School in San Francisco, said the president-elect should sell all of his business holdings: “Get it as far away from your personal control as you can. Legally, it is not too complicated.”

Hazard said the Trump children should “clearly not” be given control of the organization “because they are still his children. They can communicate with each other by nods and winks and they will.”

“He ought to be able to point to a set of legal documents and say about them, ‘Here’s what we’ve done,’” Hazard added. “He ought to turn over a stack of papers that [journalists] could give to their legal people to look at.”

Stephen Gillers, New York University Law School professor of legal ethics, also said complete divestiture is needed.

“To really cut the concerns he has to sell all of his interests in all of the Trump properties,” Gillers said. “The conflict concern is those might influence his decisions as president. He has to have no financial interest in the profit or loss of any of the Trump enterprises. Give no reason to question whether he made a decision because it’s good for the business.”

Gillers suggested reporters should directly ask Trump on December 15, “Will you divest yourself of any financial interest of any properties of Trump Enterprises? And if you don’t, how will we know that the decisions as president have not been influenced by business considerations?”

“To divest himself will require a lot of lawyering,” Gillers said. “It will not be easy but it can be done and proof of that should be made available to the public.”

(An illustration of one of the many potential conflicts of interest looming for the Trump administration, via The New York Times.)

Kathleen Clark, a government ethics expert at Washington University School of Law in St. Louis, MO, said his tweets do not detail how far he will remove himself from the businesses. She said that needs to be asked by the press.

“That addresses whether he will focus on the presidency, but that does not address in any way the initial conflicts he has through his ownership interests,” she said of his tweets. “He needs to divest from his business interest. It means to sell it — that’s the only way that he can move forward in the government without people reasonably being concerned that his government decisions are motivated by his personal financial interests.”

As for reporters seeking answers, she said they “need to see the documents, we all need to see the documents because Mr. Trump has a habit of saying two things that are mutually exclusive and he does them at the same time. The focus has to be on whether he has actually divested or not.”

Richard Painter, a former ethics attorney for the George W. Bush White House, said via email that any separation from The Trump Organization “is not enough unless he is going to sell the businesses.”

Painter followed that with a long list of potential conflicts that could arise otherwise. Those include:

“Payments from foreign governments that violate the Emoluments Clause (foreign diplomats staying in hotels, parties thrown by foreign governments in hotels, loans from the Bank of China, rent paid by foreign governments and companies controlled by foreign governments in office buildings, etc.); appearances of quid pro quo (bribery, solicitation of a bribe or offering a bribe) every time ANYBODY working for either the government or the Trump business organization talks about both government business and Trump organization business in the same conversations or even with the same people; and litigation risk.”

“Under the Jones v. Clinton case the President can be sued in his personal capacity and presumably also can be required to testify in other lawsuits,” Painter explained. “If Trump owns the businesses it will be a lot easier for plaintiffs lawyers to sue him personally and even if they do not to require his testimony, than it would be if he sell the businesses.”

He said reporters need to ask, “Is he going to divest and if not how is he going to deal with these problems that I mention?”

IMAGE: Donald Trump (R) along with his children Eric (L), Ivanka (2nd L) and Donald Jr. attend a ceremony announcing a new hotel and condominium complex in Vancouver, British Columbia June 19, 2013. REUTERS/Andy Clark 

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