Ethics expert Richard Painter, who was White House ethics counsel from 2005 to 2007, has authored a thorough, convincing and I’m quite certain accurate brief about all the problems arising from soon-to-be President Donald Trump’s vast business connections, and the conflicts of interest they can and will involve. It’s an automatic ethics train wreck. Here’s Painter:
Even absent a quid pro quo, the Emoluments Clause bans payments to an American public official from foreign governments. Yet they will arise whenever foreign diplomats stay in Trump hotels at their governments’ expense; whenever parties are organized by foreign governments in Trump hotels (Bahrain just announced such a party in a Trump hotel this week); whenever loans are made to the company by the Bank of China or any other foreign-government-owned bank; whenever rent is paid by companies controlled by foreign governments with offices in Trump buildings; and whenever there is any other arrangement whereby foreign government money goes into the president’s businesses….How can we expect a Trump administration to rein in loose lending practices, particularly in the real estate sector, when the president himself owes hundreds of millions of dollars to banks? What will he do when a foreign dictator acts up in a country where there is a Trump hotel?
Yikes. Yikes and true. Also Yikes, true, and why are you bringing this up now when there is absolutely nothing that can be done about it?
Painter’s easy-peezy solution: “For the good of the country, he should divest from his business empire as soon as possible, put the cash proceeds into United States treasury securities, broadly diversified mutual funds or a blind trust managed by an independent trustee, and then focus on being a good president.”
Sure ! That’s the answer! Also in the mix: removing his business and their planned occupations and livelihood from one or more of his children. Earth to Prof. Painter: It’s not going to happen. As Trump quite correctly pointed out, no law compels a President to do this. It’s up to him. By this time, anyone who doesn’t know that Donald Trump is not exactly a legal scholar, keen on ethics, or prone to do what everyone says he has to do is hopeless, and will probably be in a padded room somewhere before March.
I have been getting some media interviews lately about the issue, and my comments to reporters, which flow from my previous post on the matter, can be summarized this way:
You, I and everyone else who should have flagged this issue about a year ago and hammered it into the public consciousness failed our duty to the public, and this is thoroughly spilled milk. The crying over it is silly. The question should have been raised repeatedly, and hard, with commentary and unimpeachable expert analysis, making the case that Trump had two choices: divest himself sufficiently that these conflicts would pose no threat to his Presidency, or don’t run. It wasn’t, and it is too late now.
As much, as long and as loudly as ethicists, lawyers, pundits and critics insist that Trump should be conflict free, it just isn’t going to happen. That’s a fact. Even though the mysterious Emoluments Clause poses a real threat that Trump will be routinely threatened by impeachment by Democratic legislators who see it as an opportunity to undermine his Presidency, that won’t be enough to force Trump to do what he doesn’t want to do. So, as a good friend likes to say, when you have no options, you have no problem.
We have to trust President Trump. All Presidents have conflicts of interest; the extent of their power and influence ensures it. That’s why there have never been conflicts rules for Presidents. This President just has about a gazillion more conflicts than all the previous Presidents combined….WHICH WE KNEW ABOUT LONG, LONG AGO!
I have this question for Richard Painter, who, I think it’s fair to say, really doesn’t like Trump and who finds the prospect of him in the White House vomit inducing. Why, Prof. Painter, did you squander your moment in the limelight during the campaign to make specious and legally dubious accusations against FBAI Director James Comey for, you said, violating the Hatch Act ( and helping Trump) by keeping a promise to Congress, when you could have and should have been pointing at Trump and screaming, like the Auschwitz survivor in the “Marathon Man” clip above, who recognizes a Nazi exterminator on the streets of New York, “CONFLICTS!!! CONFLICTS!!!” Why weren’t you metaphorically screaming this months ago?
Of course, we all know the reason. It’s the same reason why just a few news stories were written about the issue. It’s the same reason I didn’t cover it, and why the Clinton campaign ignored it. We all thought everything else about Trump as a candidate and human being was so obviously disqualifying, and were unable to conceive of him winning, that we never got to conflicts that would only kick in once he was elected. We let this issue go unaddressed until it was too late to address it. All of us are at fault. Now, the rising throng of anti-Trump voices complaining about it is in the same category as attacks on the Electoral College. Pointless.
At the end of four years, we’ll be able to see how much conflicts of interest played a part in determining the direction of the Trump administration, and if Trump runs for re-election, and if there haven’t already been so many other dire reasons to get him out of the White House that the Emoluments Clause is still high on the list, then Prof. Painter and the rest of us who can explain why conflicts are intolerable will have a second chance.
But we missed this train, Richard. Standing on the platform, jumping up and down, yelling and throwing stuff is just annoying, and unproductive.
Wait for the next train.
21 thoughts on “Note To Prof. Painter On His Teeth Gnashing Over Trump’s Conflicts: “If You Have No Option, You Have No Problem,” or “NOW You Tell Us?””
I’m not entirely convinced that paying the usual rate to stay at a hotel which happens to be owned by him constitutes an emolument. They aren’t paying him, they are paying the hotel. Which may in turn pay him for being the owner, but since he’s stepping down as chairman and president, it seems to me it may be indirect enough to technically avoid the constitutional restriction on them.
The conflicts of interest exist regardless, just as they did for Clinton as secretary of state.
Except we didn’t know about the extent of Clinton’s conflicts.
As for the Emoluments Clause, there is very little case law on it. I suspect that will change.
How is this different from 1A? we can’t change it now
Ethics operates within the agreed boundaries of the Law. You cannot retroactively change the law for a result you do not like and be ethical.
Great question. 1Ais a rationalization when it isn’t true. When you really can’t change something, it’s stupid to keep protesting for change. Ethics unmoored from reality is unethical.
Thinking maybe a little bit along the lines of valkygrrl: is there any ETHICAL rationalization for “simply moving on [come what may, while coping],” when one is in a “damned if you do, damned if you don’t” position?
It just seems like even the most unethical person deserves some kind of grace in some measure, when the person is at a point where “when you have no options, you have no problem.”
How about this (just brainstorming): Trump installs a “decider” on the White House staff who, while expected to be independent, also is required by his job to communicate to the WH Chief of Staff, and coordinate with WH counsel (including ethics counsel), but also, to communicate with congressional ethics committees with the utmost transparency, on any and all matters of actual or potential conflict between the President’s private business interests and his official presidential duties?
Clearly, we don’t want a king – and, for anyone whom we elect whom we also recognize as bringing “kingly” circumstances to the office of POTUS, we expect him to be most fastidiously accountable – even if that means we expect him to prove himself over and over to be un-bound from every one of the very same personal interests that bound him prior to taking office.
(I almost caught myself thinking Trump’s impeachment can be prevented.)
How would impeaching Trump accomplish what the Dems want anyway? If Trump goes, all of the players in succession are Republicans. Hillary’s not even in the line.
But, you see, Clinton was impeached. It is their turn!
They don’t care. Getting Trump impeached and convicted would be anough to save face and allow them a permanent out to avoid facing the reality of *why they lost*…
It’s psychological at this point.
Given the pure, academic ethics situation is a mess, let’s look at the examples cited.
A foreign government puts up people at a “Trump” hotel or holds a banquet in a “Trump” hotel or leases space in a “Trump” property. What is Trump’s ownership and profits interest in the hotel or office building? He may simply have licensed the name to the owner/operator for a fixed fee years ago when the project was built. He may have zero interest in ongoing profits. Even if he wholly owns any of these properties and he really is a billionaire, anyone seriously thinks a foreign government will be able to curry his favor by using one of his properties rather than a competitors? “Ooooh! I see Kazahstan is having a banquet at the D.C. hotel. Let’s give them nuclear weapons like they want.”
Unlike HRC, the guy purports to be a billionaire already. He’s never said he was “dead broke,” even though he may have been a few times. Maybe it will be beneficial having a businessman running the country. Maybe that old saw, “The business of America is business” will start appearing on bumpers rather than “Co-Exist” or “Visualize World Peace [or Whirled Peas — take your pick].”
And again, if the Presidency is now constitutionally limited to career politicians and Hollywood actors and business people are prohibited, let’s get that into the Constitution in writing.
My wife made the same point: isn’t this a way of simply blocking successful entrepreneurs and business owners from running for President? Does it make sense to do that?
Nobody raised these conflict issues when Ross Perot ran, either.
“My wife made the same point: isn’t this a way of simply blocking successful entrepreneurs and business owners from running for President?”
Looks like it to me. And besides, as I’ve commented before, all these media people and academics are salaried employees. They hate business people. They’re the idiots in college who took economics and finance and statistics while all the liberal arts majors were studying really important things.
“Does it make sense to do that?”
I don’t think so.
Blind trusts have been used before by “successful entrepreneurs and business owners”. Arrange them, or don’t run.
“Arrange them, or don’t run.”
In other words, if you’re involved in a lot of businesses where you are the product that’s being sold, you can’t be a politician. That’s silly and juvenile. In other words, “only if you’re poor and lacking in any power can you run the politburo.” That’s Russia, where the powerful get rich. In the U.S. the rich get powerful. Trump’s businesses are a polyglot of companies and relationships. How can he just throw a switch and “liquidate” them or turn them over to some trustee? He can’t. He’s said he’ll step away and focus on being president of a bigger operation. If he tries anything dumb like opening a hotel in Kazakstan or Nigeria, you think no one will notice? Publicity is his companies’ life blood. The meek only inherit the Earth in the bible.
And I doubt you’re a big fan of the bible.
All it means is on the continuum of “potential conflicts of interest”, somewhere between Melvin Shlubknuckles who only owned one comic book store before becoming President and Donald Trump is a line that says “on this side is too much conflict of interest, but on this side is a level of conflict of interest that can be mitigated”
A real evaluation would be to rate every president since Washington on that scale…
It’s even led people to ponder a permanent “civil service class” for our Republic. (You can imagine my response to that).
EEK! Civil Service reform – I don’t want to get started on that. Neither, as we shall see, does the Apprentice. Just too fundamentally transformational.
“Even if he wholly owns any of these properties and he really is a billionaire, anyone seriously thinks a foreign government will be able to curry his favor by using one of his properties rather than a competitors? “Ooooh! I see Kazahstan is having a banquet at the D.C. hotel. Let’s give them nuclear weapons like they want.”
You underestimate how easy it is to curry Trump’s favor. He is notoriously susceptible to flattery, and his entire judgment of any person’s character seems to be based on “Do they like me?” I can absolutely see Trump making decisions on this basis.
Yes, I don’t feel really confident that someone as impulsive as Trump can avoid being swayed by stuff like this, and again, it’s the appearance that matters, not the reality.