Trump Is Legally Correct: Ethics Rules Do Not Apply To Him

495px-Donald_Trump_by_Gage_SkidmoreDonald Trump is under fire for saying this week that he is not legally bound to avoid conflicts of interest because such ethical standards do not apply to him. Various commentators objected but Trump insisted “The law’s totally on my side, the president can’t have a conflict of interest.” Trump is legally correct. There is a public disclosure rule that applies but not a binding conflict of interest law. The federal law exempts not just the President but also the Vice President.

The controversy erupted in an interview with the New York Times in which Trump stated “In theory I could run my business perfectly and then run the country perfectly.” Well, “perfectly” is a value-laden term rather than a legal term. Suffice it to say that he can decline a blind trust and run both “legally.”

Under Title 18 Section 208 federal executive branch employees are barred from participating in matters where they have financial interests. Thus, employees use blind trusts to avoid the conflicts since they do not have knowledge of their investments. However, Section 208 expressly exempts the president, vice president, members of Congress and federal judges.  The section states:

“Except as otherwise provided in such sections, the terms ‘officer’ and ’employee’ in sections 203, 205, 207 through 209, and 218 of this title shall not include the President, the Vice President, a Member of Congress, or a Federal judge.”

On top of the language of Section 208, there has been a long debate over the application of ethics laws to a president. The position of the Justice Department in the 1970s was that such laws did not apply to the president — even before the insertion of the express exemption.

What does apply is the Constitution’s Emoluments Clause, banning U.S. government employees from accepting presents or compensation from foreign governments. That can be a problem with a businessman with properties and business dealings with foreign leaders. The provision states:

“No Title of Nobility shall be granted by the United States: And 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.”

The vast Trump holdings raise obvious concerns under this provision and would likely be a continual source of concern for the White House counsel and others in the Administration.

None of this means that the exception under the federal law bars the President-elect from voluntarily accepting a blind trust. However, given the type of investments and properties in the Trump family, it would be hard to use a blind trust for so many fixed assets like hotels etc. The resolution is likely to be found in a shift of control to the children in a family business.

In the end, conflicts of interest may not be legally barred for the president but they can cause significant damage to the Office of the President and the country.  They can also create the environment that leads to more serious violations — an erosion of judgment and restraint that can create serious, including potentially criminal, offenses.  Thus, it is clearly incumbent upon presidents to do all that they can to separate their high office from family or personal interests.  It is the difference between what is required and what is right.

94 thoughts on “Trump Is Legally Correct: Ethics Rules Do Not Apply To Him”

  1. The only way the Left would be satisfied he was avoiding any conflict of interest is for Trump’s businesses to lose money across the board. If President Trump actually did what people elected him to do, then wouldn’t we expect to see the economy AND his businesses improve?

    1. Olly – “The only way the Left would be satisfied he was avoiding any conflict of interest is for Trump’s businesses to lose money across the board. ”

      No they wouldn’t, they would then say, “See, he can’t even run his own business’ so how could he run the country”. We have to accept the fact that the Issac’s of the world are going to whine for 4 and hopefully 8 more years. I love when Isaac uses, “lying, megalomaniac, narcissist.” to describe Trump when that is exactly how the Community Organizer we have now should be labeled.

        1. Gandhi reminded us all to be the change we want to see in the World. Let’s hope that this will be the case in Washington–the interesting tone in the New York Times interview yesterday can be cause for optimism..and also for dismay. I would only note this for all to consider: Let’s support him when we agree with him (as apparently Chuck Schummer and Bernie Sanders are if he goes thru with his infrastructure plan) and speak out and oppose him when he is not correct–and although it may incur his twitter wrath, that’s what free speech is in the end–right?
          Great discussion folks as I wish you all and your loved ones the most joyous of Thanksgivings 🙂 🙂

  2. He won’t investigate Clinton because he would be obligated to be investigated himself. Trump is a hypocrite who keeps the focus away from himself by lying about others. His megalomania is now rising to the surface as he sets the stage for a normalcy of the President doing anything he wants. The hypocrisy of the right of after eight years of accusing Obama of overstepping executive powers but standing by and allowing their narcissist megalomaniac do what ever he wants is the only thing that is unprecedented.

    Trump tapped into the emotion of anger, fueled it by saying whatever he wanted. His rants and ravings during the campaign had next to no substance other than that which would fuel the mindless. Well now he has to deal with those who have minds. This will be more of a surfacing of the American system of politics than the mind of a lying, megalomaniac, narcissist. So far Trump has proven himself to be totally unfit for the Presidency.

  3. .@DouthatNYT “closer to a king’s court than any presidency before it— and it will be very, very good to be the king”

  4. AND NOW YOU KNOW the how Nancy Pelosi and H Reid became some of the wealthiest members of the House and Senate.

  5. What obfuscation by legal minds! Is there a conflict? Yes.
    Do we have rules that allow us to ignore or circumvent these conflicts of interests? Yes

    “the president, vice president, members of Congress and federal judges.” are above requirements for insider trading and conflicts of interests. Legal and academic deceits!

  6. Now JT is going to start picking on Trump. I thought from the prior articles before the election that he was picking on Hillary so that Trump could win. Did JT get rejected for some job already?

    Trump is not going to cut a deal with Putin so that he can build a Trump Hotel in Crimea. Nor is he going to hire Hollande’s fag hair stylist. He will put foreign affairs in a blind trust and learn to learn with his ears and not eyes. That is what blind trusts are for. Trust me.

    1. Having his family manage his hotels, resorts, his interest in golf courses, and other business interest is not the same as having his assets in a blind trust.
      Foreign diplomats and others already seem to be making a point of staying at Trump’s recently opened D.C. hotel.
      It will be next to impossible to avoid at least the appearance of conflicts of interest, given that his family will be managing all kinds of business ventures prominently displaying the “Trump Brand” in the U.S. AND in foreign countries.

  7. The Trump properties, domestic & international will become a security nightmare.
    You would think ISIS goes after U.S. embassies only? Now there are new targets.
    Who will pay for Trump property security upgrades?

  8. Here we go again.! The ” Orange One” is all about himself.
    Does anyone really doubt that.? Are we going to have to put up with Clintonian splitting of straws, for another four years.?

  9. In response to an earlier comment, many years ago I observed that a finding/ruling wasn’t just. A sage old but still active judge remarked that ” justice never relies on the law. One may find justice, but it is by coincidence.”

    Over the years I have equated justice to beauty….it’s in the eye of the beholder.

    As for the E Clause, there is no mention of corporate to corporate transactions. It would seem that as long as the chief executive of the US conducts his private business negotiations with corporate or equivalent officers, he (in this case) is free and clear.

    What I find truly interesting is my own realization that out Constitutional system never envisioned a purely business man as President. Generals, lawyers and politicians with holdings—yes.

    Unless I miss my bet, I don’t think we’ve had any non-military experienced presidents between FDR – CLINTON/OBAMA. This last election has extended the current sequence to three straight now. Just an observation and probably not worth much anyway.

  10. Trump has consistently conducted his affairs in a manner that is designed to benefit Trump. That is one reason why almost all banks stopped doing business with him. He ran his campaign in a way that benefitted his own businesses. I expect he will run his presidency that way, to the potential detriment of all citizens, who rightfully should wonder whether Trump is basing his decisions on what is good for Trump instead what is good for the country.

    The fact that he can’t be charged criminally under 18 USC section 208 is hardly comforting.

    I too hope for meaningful transparency on Trump’s part. But I’m not expecting it. He is not likely to change his ways.

    1. That’s why vigilance is key and the need to be able to hold him to account is critical (not withstanding what his reservations may be) as exemplified by his reaction to what happened at Hamilton–although his own VP said no apology was necessary.

      1. WSJ article from March of this year about Trump and Deutsch Bank has some of the details. Google “Trump Denied loan”.

  11. So I guess we could see “Buy TRUMP” painted on the sides of all USAF planes and Navy ships, and it wouldn’t be a conflict of interest? Or requiring all government travelers to stay at Trump hotels?

  12. google led to this which stated in part that the statement of Trump was ‘in fact’ true

    http://www.politifact.com/truth-o-meter/statements/2016/nov/16/rudy-giuliani/giuliani-president-trump-will-be-exempt-conflict-i/

    the article references a letter from the Atttorney General’s office in 1979, stating ‘certain areas were exempt and probably would be unconstitutional’ but other areas were not. It then references a follow on act of congress that codified the exemptions.

    Realistically given the nature of the job recusing himself from anything economic, financial, or of a ‘business nature’ would mean no President could perform a major portion of their job..

    Congress apparently used the opportunity to firewall themselves from the ‘insider trading laws.’

    Then it became 11PM in my time zone and I leave the rest of the trail to others used to research.

    I did notice the Office of Ethics search routine was completely useless.

  13. I agree as well.

    Trump should make a tremendous effort at transparency, as well as use any means necessary to separate control of his business interests. It may be legal, but it won’t be worth the headache or trust issues. I imagine it will be quite difficult for him to give up control, but this is what he signed on for, and where his concentration should lie.

    Have a great Thanksgiving, and try not to unfriend anyone or talk politics over dinner!

  14. Mike, I agree. We need a transparent Trump administration after having been promised by Obama for “the most transparent administration” and getting the exact opposite.

    1. He wouldn’t share his tax returns. What makes you think transparency is going to start now?

    2. That bridge in Brooklyn is still up for sale, Nick. You look to be the perfect buyer. The sale is being handled by a Donald Duck, AKA Donald Trump, through his son in law. It is a yuge opportunity and you seem to have come along at the right time.

      1. Did I say I trust or even like Trump? I merely said we need transparency by EVERY president and it has been totally lacking. I have no expectations. But, here’s what I do know. The MSM kissed Obama’s ass and did not hold him accountable. It is not even debatable that Obama was the least transparent. He plugged leaks and investigated whistleblowers that made Nixon look like a Boy Scout. No person w/ any intelligence thinks the MSM will coddle Trump. They hate him and vice versa. Your anger and hate clouds your thinking.

  15. As I hope all in the Turley Community agree, there is a distinction with what is legal vs. what is right and righteous. I expect leaders to go beyond merely the “letter of the law” and demand more of themselves. Their actions must be beyond reproach. I cite VP Biden, as an example–all I hope know how he contemplated to sell his house in order to support his Son’s Family after Beau had died–and I never forget another speech he made when he talked about how at one of the first meetings, The President talked about all had taken a sacrifice to join the Administration–while he noted that the only getting a raise was VP Biden. I hope I am not too unrealistic in this as I wish you Professor Turley & all in the Turley Community a safe, joyous and fabulous Thanksgiving 2016.

    1. I respectfully suggest you and readers research reports that Biden’s son is high ranking executive for a private energy company w/financial interests in Syria. Biden’s son works in Syria, and his employer’s financial interests are benefited by US military intervention in Syria and desired regime change in Syria.

      Happy Thanksgiving to you and yours!

      1. Thanks for the thoughts @Joseph Jones–I should have been more clearer–I was referring to his son Beau, the former Attorney General of Delaware who died of brain cancer if all recall.

      2. He’s also involved in Ukraine. From ABC News: “Vice President Joe Biden’s youngest son Hunter Biden has joined the board of directors of Ukraine’s largest oil company at a time that the U.S. is urging Ukraine to develop energy independence from Russia and just days after the vice president visited Ukraine.

        The vice president’s office and the White House rejected any suggestion that there was a conflict of interest.

        “Hunter Biden is a private citizen and a lawyer,” Vice President Biden’s spokeswoman Kendra Barkoff told ABC News. “The vice president does not endorse any particular company and has no involvement with this company.”

    1. You are correct it’s not in it exactly by in an add on (see my other post) letter from DOJ in 1979 and later codified by Congress. Finding that is indeed a chore because congress used it to exempt themselves from the same and from charges of insider trading. Apparently they included the Supremes and got no argument from them. So yes it is legal but the URL in the other post will present it in a more complete fashion. To save time read the last two paragraphs first when you go that site.

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