Professor Robert Gordon on President-Elect Trump’s Business Holdings, Ethics, and the Law

As an international businessman with holdings and interests across the country and globe, president-elect Donald Trump begins his transition to the White House with business conflicts of interest and ethical questions unresolved. In the Q&A that follows, legal historian and ethics expert Robert W. Gordon discusses the ethical obligations of U.S. presidents and potential challenges facing Trump.

Robert W. Gordon
Professor Robert W. Gordon

What ethical obligations does the US president undertake once taking office, particularly regarding conflicts of interest and personal benefit/enrichment? Can you give us an overview?

I’m not aware of any specific statute or rule that governs a president’s conflicts of interest—except of course for the “emoluments” clause of the Federal Constitution (of which more in a moment). So Trump is probably technically right to say that he is not specifically required to avoid any conflicts.  But it would defy common sense to suggest that the government’s highest officer ought to be treated as exempt from the rules that govern all the other officers of the federal government—since his power is so much greater, so are his opportunities for corruption and self-dealing. If he engages in serious corruption, of course, he may be impeached (“bribery” is mentioned as  ground for impeachment), but that’s an extreme remedy, and not one that a Congress controlled by the President’s own party is likely to invoke.

The “emoluments” clause says: And no Person holding any Office of Profit or Trust under [the United States], 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.

The purpose of this is to limit the ability for foreign governments to buy favors by offering presents or fancy titles like knighthoods or peerages.   By its terms it refers only to governments, not to private actors; and Congress can always consent to receipt of a gift, although it’s doubtful that Congress could legislate a blanket exemption for a President’s benefit

The Trump organization has business holdings throughout the U.S. and the world. While most past presidents have sold off their business interests, Trump’s are more far reaching and complicated. The Office of Government Ethics (OGE) has recommended that Trump divest his business holdings.  Would that be enough?

If Trump divests, but leaves his family running the business, that doesn’t solve the basic problem. Governments and private interests who want favorable treatment from the US government (or to avoid unfavorable treatment) could send business to Trump’s children expecting to buy his favor.

Trump suggested via Twitter that he might “leave his great business in total,” though we don’t have details of what that will look like. If his children still run the company, might that solve any ethical issues?

Giving the business to the children doesn’t solve any of the problems. They are still Trump family enterprises, even if he doesn’t return to them after leaving office. A favor or injury to them is the same as a favor or injury to Trump himself.  And Trump is notoriously vindictive—suppose a deal turns out badly—what’s to prevent Trump from taking revenge through some adverse government treatment—denying the offender a federal contract, or declining to hire their relatives, or auditing their tax returns, or having them investigated for fraud? Nixon made an enemies list and found ways of punishing the opposition; there’s no reason to think Trump would not do the same.  He has already made it clear that he does not intend to abide by any longstanding customs or norms governing the Presidency—as with his refusal to disclose his tax returns during the election.

In addition to business issues leaving Trump vulnerable to charges of ethical lapses, there may be other issues. He was accused of inciting sexism and racism during the campaign and of bending the truth. If that kind of behavior continues into his presidency, is there a written code of conduct that he might breach?

Legally, Trump is protected by the same First Amendment as any other citizen, which gives him a wide license to incite others to deplorable conduct and to tell lies, so long as he does not defame any specific people with actual malice. (As a private citizen, he resorts to no-holds-barred litigation tactics to repel any attempts to hold him legally accountable, and doubtless would continue to do that as President.) He is of course subject to civil suit, and to criminal prosecution, for any acts that violate ordinary laws applying to ordinary persons; though he enjoys a broad immunity for official acts.

What avenues are available to hold a president accountable—legal, political, etc.?

Again, the only effective remedy against a president who routinely violates norms of truth-telling and decent treatment of others is monitoring by public opinion informed by a vigilant press, Congressional oversight, and ultimately the threat of impeachment. Trump’s supporters don’t seem to be bothered by his lies, which they see as a sign of refreshing authenticity, or as pardonable hyperbole in the service of higher truths, or just as opinions entitled to the same deference as any other opinions.  Will they show the same indulgence to Trump’s doing political favors to those who patronize his businesses, and using the tools of government to take revenge on his business enemies? I think we’re probably going to find out.  My deepest fear is that the federal government will become like Brazil’s, riddled with corrupt deals favoring cronies and family connections.