Donald Trump Is Kind Of Right About This Thing The President Can't Do
In a departure (at least briefly) from his hostile relationship with the press, on Tuesday afternoon Donald Trump met with the New York Times editorial board in the most comprehensive interview by the press that the president-elect has had since winning the election two weeks ago. Unlike most recent president-elects, Trump has not held a formal press conference since winning, meaning that this is the best view we have into the incoming president's thinking on his transition and administration, along with the 60 Minutes interview shortly after the election.
In the interview, New York Times reporters asked Trump about one of the biggest questions that has arisen during the transition — how Trump will deal with potential conflicts of interest from his foreign businesses, and allegations that he has used his calls with foreign leaders to advocate for those businesses. But despite the alleged conflicts of interest that Hillary Clinton could have brought to the presidency having been a major point of contention in his campaign message, Trump wrote off concerns that foreign interests could use his businesses as a means of gaining access to the president and pushing policy as no big deal. As Maggie Haberman tweeted, Trump said, "In theory I could run my business perfectly and then run the country perfectly. There's never been a case like this."
Trump claims that the law doesn't actually stop him from operating his businesses however he pleases while serving the duties of the presidency. “The law’s totally on my side," he told the New York Times. "The president can’t have a conflict of interest.” Incredibly — and worryingly — Trump may be right.
Although there are numerous conflict of interest laws that affect government employees in both the constitution and federal codes, almost none of them apply to the president or vice-president. Just like the expectation that Trump would disclose his personal finances by releasing his tax returns during the presidential campaign was based on merely public pressure and not any established law, so is the precedent that presidents sell off their assets and put their money in a blind trust in order to free themselves from potential conflicts of interest.
The one part of the law that might hamper Trump is the "emoluments clause" in the Constitution, Article I, Section 9: "No Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State." This would seem to put Trump in legal jeopardy if, while he was serving as president, foreign diplomats spent money at Trump hotels. The Washington Post reported that this is already happening.
The emoluments clause remains a tricky legal recourse due to a lack of precedent. In a New York Times roundup of legal scholarship about emoluments, Seth Tillman of Maynooth University Department of Law argues it doesn't extend all the way to the top, comparing how the clause is written with other parts of the constitution that explicitly mention the president. "The different language in the Emoluments Clause, along with historical evidence, he said, indicates that it does not apply to the president," is how the New York Times' Adam Liptak described Tillman's assessment.
And Richard Painter, a former ethics lawyer for George W. Bush, points to difficulty finding a plaintiff who can legally sue under the clause. Liptak wrote of Painter's opinion: "the way to address violations of the clause, Mr. Painter said, is not a lawsuit but impeachment."
Considering which party will be ruling Washington D.C., it seems questionable that Congress will do so.