A year into his administration, it’s become clear that President Donald Trump won’t voluntarily address the conflicts between his private business dealings and his role as commander in chief. His refusal to follow norms set by his predecessors and divest from his real estate empire, opting to maintain ownership of his businesses but hand operational control over to his sons, continues to raise questions about how his official actions impact his and his family’s bottom line.
Though many find this alarming, they tend to assume that there’s not much we can do about it. While some in Washington have posed reforms that touch on the president’s conflicts, many of the proposals tinker around the edges without addressing the heart of the problem. This has to do, in part, with the powerful and unique role the presidency plays: There’s a fear that any serious intervention from Congress would trample all over the separation of powers.
Before he took office, President TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE justified his refusal to divest from his businesses by noting that the commanders in chief “can’t have” conflicts of interest — which is true in a legal sense, since the president (along with the vice president and certain other officials) is exempt from federal conflict interest rules.
The thinking behind the exemption traces back to a 1974 Justice Department letter arguing any law limiting personal conflicts of interest for a president would be constitutionally suspect. Acting Attorney General Laurence Silberman wrote that such laws would “disable (the president) from performing some of the functions prescribed by the Constitution,” and would impose additional qualifications on presidential candidates beyond those specified in the text of the Constitution. Silberman’s view caught on without significant public debate, and Congress went on to codify it in 1989.
Nevertheless, every president since the 1970s (until the current one) took significant voluntary steps to avoid even the appearance of impropriety.
President Trump’s choice to abandon this tradition should worry all of us. While many of his supporters praise his willingness to break through conventions they find obsolete or elitist, preventing abuse of public office for private gain ought to be a point of common ground. After all, instead of a populist real estate developer, our next billionaire president could be a left-leaning tech titan or media mogul. The same constraints placed on President Trump would also apply to President Mark ZuckerbergMark Elliot ZuckerbergThe Hill's Morning Report - Presented by Alibaba - House Democrats plagued by Biden agenda troubles Webb: Big Tech won't change; the tech sector can Hillicon Valley — Presented by Xerox — Democrats press FTC to resolve data privacy 'crisis' MORE or President Oprah Winfrey.
Moreover, Silberman’s concern that conflict of interest rules could “disable” the president feels overblown. It assumes that the president cannot refrain from participating in specific matters that, constitutionally, fall under his or her responsibility. But presidents are already uninvolved in a great deal of government decisions. And other high-ranking officials like cabinet secretaries routinely recuse themselves from matters within their departments without disabling their authority.
Selling conflict-prone assets, as President Trump’s predecessors did, is also an option. The fact that so many previous commanders-in-chief managed to govern while avoiding conflicts of interest is a strong indication that making it a requirement would not functionally cripple the president.
It is also wrong to think that conflict of interest law would impose an additional qualification on the presidency beyond the text of the Constitution — that is, requirements beyond age and citizenship status. Presidents are members of society, and are generally subject to the same rules as the rest of us, including those prohibiting gross misuse of public office. Few would argue, for example, that the president can legally take bribes. And commentators across the ideological spectrum have pushed back on suggestions that the president cannot legally obstruct justice. A law requiring the president, like most other officials, to avoid engaging in matters where he or she has a direct financial interest would be no different.
None of which goes to discount the uniqueness of the president’s role. The president may not be above the law, but the Supreme Court has held that efforts to regulate his or her personal conduct in office must be “justified by an overriding need to promote objectives within the constitutional authority of Congress.”
Conflict of interest rules plainly serve these objectives. They deter official self-dealing, which the Court itself has called “an evil which endangers the very fabric of a democratic society.” That is especially true with respect to the president. More than any other official, the president must put the interests of the American people first. The framers understood this, which is why the Constitution requires the president alone to be paid a government salary, and bars the president from receiving certain other payments in the foreign and domestic “emoluments clauses.” Placing legal limits on presidential conflicts of interest is consistent with the ideals underlying those principles.
This doesn’t mean that the president should be subject to the exact same rules as the employees at your local social security office, or even a cabinet secretary. We at the Brennan Center have proposed several specific exceptions for the president, including for conflicts arising from legislation the president signs, and those involving relatively small sums of money.
But the need for exceptions does not mean that we should continue to give the president a free pass from core ethical standards. Fixing this pressing gap in the law is an excellent starting point to restore safeguards that have long prevented abuse of the office’s immense power. It should be a bipartisan priority.
Dan Weiner is senior counsel of the Democracy Program at the Brennan Center for Justice at NYU School of Law.