Failure to divest harms Trump

By leaving massive conflicts of interest in play, Donald Trump is assuring that every act of his presidency – by him or people he appoints – will be suspect.

He cannot “make America great again” or succeed as president if more than half of the country is worried about the motives driving big and small decisions: Was something done or not done in order to enrich Trump and his family or because it was best for the nation?

And he and his appointees cannot trust the motives of the people and governments they deal with: Are those people acting merely to ingratiate themselves to Trump?

In his discordant and fiercely combative “press conference” last week, Trump announced his plan to turn over operation of his companies and deals to his sons, arguing that would resolve any conflicts of interest.

As he mindlessly put it, “The president can’t have a conflict of interest” because the government ethics laws don’t apply to the president and vice president.

That’s way off mark.

Of course the president can have a conflict of interest. He cannot have a conflict of interest that violates the law, but he most assuredly can have a conflict of interest in the common meaning of the term, and Trump and his appointees could have literally hundreds of them daily unless he divests himself of all his businesses.

That’s a tough ask, but an important concept supports it. As the U.S. Supreme Court wrote in 1961, conflicts of interest are “an evil which endangers the very fabric of a democratic society, for a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions.”

Even Trump favorite, the late Antonin Scalia, whom he called “the great, great justice” last week, wrote in his Justice Department days that presidents should avoid actions prohibited by the law, even though it does not apply to them.

Since Congress established the Office of Government Ethics in 1978, every president, though exempted, has divested private financial affairs through blind trusts and other devices.

The OGE exists to advise the executive branch. It has no investigatory or enforcement powers but relies on moral persuasion. Its role is to help executive branch officials and employes avoid ethical and legal pitfalls.

It did that, for instance, last week when it sent out a reminder that federal employes are not allowed to endorse products or services. It was necessary because Trump had Tweeted everyone to “buy L.L. Bean,” which was threatened with a boycott for its support of Trump. How’s that for a double dip on conflict of interest?

After Trump announced his financial plans, OGE director Walter Shaub advised that it was insufficient to protect against of conflicts of interest.

Trump, who normally responds badly to criticism, has been eerily silent. Here’s likely why: As president, Trump can fire Shaub, whose term is for five years, and runs until 2018. No director has ever been removed by a president, because the term was deliberately established by Congress at five years to avoid politicizing the office. But Trump, as we know, makes his own rules.

Will his first official firing be on Jan. 22, or will he wait until the 23rd?

And that won’t be a conflict of interest?

This story was originally published January 17, 2017 at 5:02 AM with the headline "Failure to divest harms Trump."