So there’s a full body of criminal law, and then there’s the constitutional conflicts like the Emoluments Clause. What’s the reason that the Framers did not want foreign sovereigns giving presents to presidents? The answer is because it makes them conflicted. It distorts their judgment.
And, of course, there’s congressional remedies for sufficiently serious Emoluments Clause violations: impeachment or congressional investigation. Remember, the Senate is just hanging by a few votes, so a few angry Republican senators are enough to start having hearings and demanding documents and witness testimony if there’s a sufficiently big problem in any of this. And then, of course, the worst case is impeachment.
And it’s also possible that a private citizen or a business that was injured by one of those foreign presents to Mr. Trump would have a cause of action, so there’s civil remedies too. I could go on, but there’s a lot of laws bearing upon conflicts that affect Mr. Trump. What he says just is not true.
Ford: One thing that kind of surprised me about this is that there are some exceptions in some of these laws for the president and vice president, and I think that’s where he’s getting that idea from. Why do those exceptions exist?
Eisen: They exist for several reasons. One is that there’s a constitutional question about separation of powers. To what extent can Congress say these are the conditions under which the president can do his duty? For example, Congress makes the president do a conflicts disclosure called the Office of Governmental Ethics Form 278. So if the conflicts laws don’t apply to him, why does he have to do a conflicts disclosure? I think there’s room for Congress to regulate presidential conflicts, but they have to move carefully but there is a separation-of-powers issue.
The other thing is you don’t want to have the president in the middle of a crisis where he’s about to make an urgent decision, and his White House Counsel says to him, “Oh, Mr. President, you have a conflict of interest. You have to leave the room. You can’t decide whether to rescue those hostages.” We don’t want to have that.
There are ways Congress can regulate here. But nobody contemplated when the statute was being drafted anything like the unseemly parade of business conflicts that Mr. Trump has been exhibiting on his properties, and I think if they had, they would’ve found a way to legislate some limitations.
Ford: Say I’m Donald Trump, and I wake up tomorrow, and I want to do whatever it takes to avoid these conflicts. What would you suggest I do?
Eisen: I would suggest you set up, as every president has for the past four decades, a blind trust or the equivalent. Professor Richard Painter, the Bush ethics czar, and I have laid out a bipartisan plan that’s been endorsed by the Wall Street Journal and even by the New York Post. It’s a simple plan: Trump signs all the properties to an independent trustee, one who’d qualify under the blind-trust law. Even though he’s not bound by the law, this is how presidents have done it. He signs everything over and says, “Trustee, you manage.” The trustee would find a way to liquidate those assets as quickly as he could. He might do an IPO, an LBO, or private equity. Then the trustee would take the proceeds from those assets and put them behind a big, beautiful wall in the trust so Trump wouldn’t know what his own investments were. Or the trustee or Mr. Trump could put the money into T-bills or widely diversified mutual funds as President Obama did, because President Obama’s holdings were so simple.