Norman Eisen and Richard W. Painter were, respectively, chief White House ethics lawyers for Presidents Barack Obama and George W. Bush. For months before the election, they wrote and spoke frequently about the dangers associated with Donald Trump’s disdain for the established norm of releasing presidential candidates’ tax returns. They warned about unprecedented business conflicts of interest that Trump would face as president. Since the election, they’ve urged divestiture, liquidation, and a blind trust as the only effective ways to resolve those conflicts.
The editorial boards of The New York Times and The Wall Street Journal agree with Eisen and Painter. But on December 10, Edwin D. Williamson at Sullivan & Cromwell penned an op-ed for the Journal that tries to let Trump off the conflicts hook.
“If I were advising Trump,” Williamson writes, “I would strongly urge him to pledge that as president he will make no decision for the primary purpose of benefiting any family financial interest, and any decision involving an entity that has a Trump business relationship will be transparent so questions of favoritism can be scrutinized.”
That’s Williamson’s proposed remedy: a pledge of fidelity, coupled with a promise of transparency from a serial liar who still refuses to release his tax returns. Would he accept that undertaking from opposing counsel to settle a case that Williamson’s client was sure to win? Seasoned litigant Trump sure wouldn’t.
But here’s Williamson’s most dangerous line: “I do not see how he can effectively promise more, and I do not believe more is needed.” He then spins frivolous false equivalence arguments that give all attorneys a bad name.
Excuses, Excuses, Excuses
Williamson’s first hypothetical scenario is the sale of Trump’s interests through an initial public offering. Because the president can appoint a majority of the SEC commissioners, Williamson believes that Trump would be trading one conflict (his business interests) for another (his influence over the SEC as it supervised Trump’ IPO).
Williamson’s second liquidation scenario is a leveraged buyout. Because it would require lending by Trump-regulated banks, that would create a new conflict, too, he writes.
Such sophistry is suffocating. Neither option creates a conflict of interest approaching the magnitude of those that will accompany Trump’s continued ownership of his businesses after Inauguration Day. In fact, Williamson final argument proves it.
“[T]he biggest problem of divestiture is that the value of Trump businesses is significantly dependent on, and inextricably tied to, the Trump name,” Williamson writes.
Precisely. The prospect of enriching Trump and his family personally is what entices others — foreign and domestic — to patronize Trump businesses in an effort to curry the President’s favor. It’s already happening at Trump’s new Washington, D.C. hotel.
In a joint letter to The New York Times, Harvard Law School Professor Laurence Tribe and Mark Green, New York City’s first public advocate, explain:
“The Constitution’s Emoluments Clause is unambiguous. It forbids an American president from accepting anything of value from a foreign entity, without congressional consent, because that would open the door to bribery or extortion.”
Tribe and Green continue, “The only way for President-elect Donald Trump to cure this problem would be an arms-length sale by a public trustee, not piecemeal judgments after Jan. 20 about the thousands of possible winks and nods between foreign leaders and the new administration.”
Professional Responsibility in the Age of Trump
Lawyers understand the relationship between preserving vital democratic norms and protecting democracy. Zealous advocacy is one thing. But attorneys err when they offer feeble justifications that aid and abet Trump’s insidious effort to normalize behavior that is not only abnormal, but also wrong. The bad news is that the effort is having an impact. Consider the number of commentators who now start from the false premise, “Well, he can’t sell his businesses….”
As Tribe and Green observe, “Mr. Trump chose to put himself in this situation and cannot now act aggrieved, nor is there a too-big-to-sell exemption in the Constitution; if anything, the larger the potential for conflict, the more urgent a sell-off.”
“There’s no precedent,” proclaim Trump’s conflict of interest apologists.
Actually, plenty of analogous precedent resides in the conflict of interest rules applicable to all practicing attorneys. No lawyer can serve two conflicting masters simultaneously, regardless of good faith efforts to be fair and honest to both. And the appearance of conflict is equally debilitating.
Williamson dismisses such appearances as “impossible to avoid” because “almost any decision Mr. Trump makes as president will have an effect — good or bad — on his business interests.” But that argument demonstrates again why Trump must sell those interests, as Eisen, Painter, Tribe, Green, and other attorneys across the political spectrum urge.
Donald Trump isn’t a lawyer, but he will have fiduciary duties to the most important client in the world: the United States of America. At a minimum, all attorneys should hold him to the standard that the country deserves.
Don’t Give Up
Columnist Charles M. Blow offers this creed that’s worth remembering every day:
“To have a president for whom we don’t know the extent of his financial entanglements with other countries — in part because he has refused to release his tax returns — is not normal.
“To have a president with massive, inherent conflicts of interest between continued ownership of his company and the running of our country is not normal.
“Presidents may be exempt from conflict of interest provisions in the law, but exemption from legal jeopardy is not an exemption from fact or defilement of the primacy of a president’s fiduciary duty to empire above enterprise…
“[H]istory will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!”
Lawyers should be leading the charge to those rooftops, not blocking the path.