Here’s who could actually do something about Trump’s potential conflicts of interest
There is pretty universal agreement that President-elect Donald Trump’s many business ventures could create a complicated conflict-of-interest web when he takes the oath of office if his team doesn’t figure out how to detangle him from the Trump Organization. When Trump postponed the December 15 press conference where he was supposed to address these issues, a transition official pinned the delay on giving Trump’s legal team “ample time to ensure the proper protocols are put in place so his sole focus will remain on the country.” On Thursday he said he’d have that press conference “in early January.”
But let’s say the lawyers don’t figure out how to fully separate Trump from his businesses, or Trump decides he doesn’t need to — what then? Conflicts of interest aren’t really conflicts if no one is enforcing the rules. If the would-be enforcers all answer to the president, who’s going to push the issue?
Well, here’s a list of who could, and why they may or may not.
The Democrats in and outside of Congress will shine a light on conflicts of interest for the next four years. For those in Congress, it’s the politically smart thing to do, even if they find themselves working with the White House on a bipartisan infrastructure package.
No one should be surprised if Democrats continue to hammer away at Trump while trying to solve bipartisan problems, but it’s unclear whether that puts them in a better or worse negotiating position. Trump doesn’t like being insulted and has no problem going after his critics publicly. That could make it harder for Republicans to work with Democrats for fear of being caught up in the backlash.
And since Democrats aren’t in charge, they’re kind of limited to the court of public opinion, but maybe it’s not so limiting. Kathleen Clark, a law professor from Washington University, points out that public opinion can be a powerful “accountability mechanism” for Democrats to use. “I think Trump already feels the pushback on the Emoluments Clause [which basically says presidents can’t take gifts from foreign countries]. If he didn’t feel any pressure at all, he wouldn’t have responded,” Clark said. Democrats can continue to call for committee hearings and investigations, which will surely be covered by the press.
Trump could be in breach of the Constitution’s Emoluments Clause if he continues to profit from foreign governments paying for services at his hotels.
However, Congress is the body that enforces the Constitution, and it’s highly unlikely a Republican-controlled House of Representatives would bring articles of impeachment against a new GOP president. Clark, though, had a more positive spin on the power of Congress: “A congressional investigation itself is a way of holding the president accountable, even if it does not result in impeachment or even impeachment proceedings.”
THE HOTEL DOWN THE STREET
Here’s where it starts to get interesting, and where the country’s legal apparatus may enter the conversation. Former Ambassador Norman Eisen served as special counsel to President Obama from January 2009 to January 2011. When asked who would have standing to sue Trump if he or she believes Trump is in violation of the Constitution, Eisen pointed to the idea of “competitor standing.” “You’re going to see litigants…It may be as big as another hotel chain down the block,” he said. The scenario: If the hotel or restaurant near a Trump property is losing business because foreign governments think a good way to curry favor with the president is to stay at one of his hotels, that could be grounds to sue. Eisen believes there will be plenty of “incentivized litigants” as well as “a ton of very alarmed lawyers” willing to raise their hands for cases like this. There’s little precedent for business competitors suing the president of the United States for a constitutional breach, so it’s hard to say whether this is a valid course of action.
Eisen also said the Federal Bureau of Investigation shouldn’t be left out of this discussion. If there’s something criminal to be investigated, they’re the agency to do it. We might be skeptical after FBI Director James Comey’s actions during the election, but the Russian hacking has created a situation where the FBI is already somewhat involved. And remember, NBC News reported last month that the FBI was “conducting a preliminary inquiry into Donald Trump’s former campaign manager Paul Manafort’s foreign business connections.”
DEPARTMENT OF JUSTICE
In the end, if there are lawsuits or a federal investigation that actually leads somewhere, those things would end up in the Department of Justice’s lap. Since the incoming attorney general will be someone chosen by Trump, the bar to seriously consider cases will be high, and the process of suing the president, designed to prevent frivolous lawsuits, is extremely difficult. But both Clark and Eisen say we should remember that the nation is not lawless. If the drumbeat is loud enough, says Eisen, it will be difficult to “quash” all of the questions “politically.”