In-Depth: Rep. Katherine Clark (D-MA) reintroduced this bill from the 114th Congress to ensure presidents and vice presidents address conflicts of interest. When she originally introduced this bill in November 2016, Rep. Clark said:
“The President of the United States has the power to affect how our tax dollars are spent, who the federal government does business with, and the integrity of America’s standing in a global economy. Every recent president in modern history has taken steps to ensure his financial interests do not conflict with the needs of the American people. The American people need to be able to trust that the President’s decisions are based on the best interests of families at home, and not the President’s financial interests.”
Writing in the Harvard Journal of Legislation, Samantha Block, a student at George Washington University, argued that contrary to what some believe, Congress has the power to grant an independent agency, such as the Office of Government Ethics, the power to regulate and enforce conflict of interest laws with respect to the president and vice president:
“Conflict of interest laws are necessary to prevent government officials, including the President and Vice President, from engaging in activities that could impair their ability to properly carry out the requirements of their position… The 2016 election brought to the forefront the issue of conflicts of interest and the lack of regulation in this area of the law as it applies to the President… Currently, the laws regarding conflicts of interest only extend to certain executive branch employees. These laws center around the notion ‘that a public servant owes undivided loyalty to the Government’ and seek to prevent any intentional or unintentional influence arising from private or personal financial interests. The current federal conflict of interest laws can go so far as to require employees to divest assets or recuse themselves from certain issues. Yet these laws fail to extend to the President and Vice President for fear of ‘interfer[ing] with their ability to carry out their diverse responsibilities under the Constitution.’ While these laws do not extend to the President, many Presidents voluntarily comply and generally utilize one of three different courses of action… typically referred to as the ‘three-D’ method: ‘disclosure, disqualification, and divestiture.’... Congress can arguably create federal conflicts of interest law that apply to the President… the rationale of some critics that the regulation of presidential conflicts of interest by Congress violates the separation of powers principle is flawed. Congress has the power ‘to make all [l]aws which shall be necessary and proper for carrying into [e]xecution for foregoing [p]owers, and all other [p]owers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ Under the Necessary and Proper Clause Congress not only has the power to decide when its own powers will be exercised and executed, but also has the discretion to decide how all federal government powers shall be executed, including that of the executive branch. The Necessary and Proper Clause, Emoluments Clause, along with Congress’s legislative powers under Article I, and past conflict of interest legislation extending to the President, demonstrate that not all presidential conflicts of interest laws would be an over extension of Congress’s power. Therefore, Congress can create legislation applying to the President and Vice President, and through the Necessary and Proper Clause grant an independent agency both regulatory and enforcement authority over these new laws.”
In his refusal to divest from his investments and businesses, President Trump has claimed that “the president can’t have a conflict of interest.” Writing for USA Today, CREW board member and George W. Bush administration chief ethics counsel Richard Painter and CREW Executive Director Noah Bookbinder concede the truth of this claim, as “[t]here is no specific law that directly prohibits the president from owning any assets — whether real estate or anything else — that conflict with his official duties.” However, they argue that rather than exculpating Trump, this merely highlights the need for Congressional action to rectify this oversight in existing law:
“[T]he time for special exemptions from financial conflict of interest rules is over. No person — president, vice president or member of Congress — is above the law. Congress should act quickly and decisively to include all government officials, including the most powerful, in the definition of a federal ‘employee’ covered by conflict of interest laws. They are, after all, the employees of the American people who elect them, and it is our interests that they should put first, not their own. Everyone in our government should be required to act For The People.”
This bill has one cosponsor, Rep. Pramila Jayapal (D-WA), in the 116th Congress. In the 114th Congress, it had 82 bipartisan cosponsors, including 81 Democrats and one Republican, and didn’t receive a committee vote.
The For the People Act (H.R. 1) incorporates this bill and passed the House by a 234-193 vote but isn’t expected to pass the Senate, where Majority Leader Mitch McConnell (R-KY) has expressed his opposition to the bill. H.R. 1 has 236 Democratic House cosponsors.
Of Note: Historically, American presidents have all used some form or blind trust or placed their assets in an investment vehicle over which they had no control. In fact, prior to Donald Trump, every president in the modern era divested investments that conflicted with official duties and placed personal assets in conflict-free investments or blind trusts.
When President Trump announced in January 2017 that he wouldn’t divest from his interests in the Trump Organization, Citizens for Responsibility and Ethics in Washington’s (CREW) Executive Director Noah Bookbinder predicted that “[e]very decision [Trump] will make as president will be followed by the specter of doubt, and will be questioned as to whether his decision is in the best interest of the American people or the best interest of his bottom line.”
In Trump’s second year in office, CREW recorded “more than 900 interactions between the government, those trying to influence it, and the Trump Organization, each resulting in a conflict of interest for President Trump,” bringing the total number of known conflicts of interest involving the Trump Organization to over 1,400.
Summary by Lorelei Yang
(Photo Credit: iStockphoto.com / georgeclerk)