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Distributed Risk: On Conflicts, Doesn’t Matter If Trump Is a Saint

Jane Chong
Wednesday, November 23, 2016, 4:30 PM

The debate over the unprecedented conflicts of interest created by President-elect Donald Trump’s financial empire is at an impasse, perhaps in part because we have adopted a narrow understanding of what it means for the president to put the country in harm’s way.

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The debate over the unprecedented conflicts of interest created by President-elect Donald Trump’s financial empire is at an impasse, perhaps in part because we have adopted a narrow understanding of what it means for the president to put the country in harm’s way.

In the classic nightmare hypothetical, someone kidnaps the president’s kids and suddenly the country has at the helm a leader with the nuclear codes and divided loyalties. In such a case, we would expect the White House to do what it can to get the children back—but we would also expect that the president would temporarily relinquish his power as the final decision-maker on anything related to assessing and complying with the kidnapper’s demands. Preventing such nightmares is one reason the Secret Service protects the president’s family around the clock: not just for the president or family’s sake, but for the country’s.

This appears to be the general framework now guiding our discussion of Trump’s significant financial conflicts. Our concern is that Trump will subvert that simple presidential baseline: country first.

This focus is reasonable, particularly given Donald Trump’s seeming nonchalance about undue influence and illegitimate decision-makers in his White House. News broke early last week that Trump has requested top-secret clearance for his son-in-law, Jared Kushner, and photographs of Kushner and his wife Ivanka sitting in on private meetings with Japanese Prime Minister Shinzo Abe sent concerned Americans into a tailspin and the House Oversight Committee phones ringing off the hook. Most recently, Ivanka joined a call between her father and Argentine president Mauricio Macri, a detail we know only because Macri let it slip in an interview with a Japanese newspaper.

More disturbingly, however, Trump has given no indication that he has plans for systematically disposing of his vast financial empire—an empire that divides his interests into quite literally billions of pieces and sprinkles them in all pockets of the globe. Confronted with the problem of financial conflicts, he has doubled down and made the situation worse by indicating that his family will put their hands in the affairs of state and also remain in control of his business.

Trump has dismissed the conflicts problem outright. “Prior to the election it was well known that I have interests in properties all over the world,” Trump tweeted on Monday, castigating the “crooked media” for making a big deal out of nothing. He took a different tack in his interview yesterday with the New York Times. “The law’s totally on my side, meaning, the president can’t have a conflict of interest,” Trump told reporters.

Trump’s limited understanding of the conflicts problem, while jarring, also illuminates some of the deficiencies of the current public debate. So far, Trump’s conflicts have been examined in the shadow of corruption. The spotlight has been on how Trump and his family and key advisers stand to benefit from specific domestic and foreign policy decisions to be made, and on which of Trump’s business partners are positioned to reap economic windfalls should the United States adopt certain policy decisions Trump has publicly advocated (see the running conflicts lists recently put together by the Atlantic, Time, and Politico, and Kurt Eichenwald’s September investigative report for Newsweek, published when a Trump presidency struck most as a moonshot). If Trump’s defensive posture is any indication, however, those hoping to persuade him—or Congress—about the seriousness of the situation need to move past the language of undue gains.

As to Trump's global business interests in particular, that Trump might put his interests above those of the United States is obviously a problem, but it is far from the only problem. What must be the starting point of any attempt to get Trump to think seriously about his conflicts is the simple fact that he doesn’t have to actually do anything for his wealth to become, in the Biblical phrase, a stumbling block. The President of the United States is too powerful in his public capacity to retain his identity as a significant private financial actor. Full stop.

Trump’s best behavior cannot preclude international financial lending institutions from reading into the every move of the many projects and partnerships emblazoned with his name. And even if Trump does his utmost to disregard his business interests in the scores of countries in which he and his family own assets or owes debts, those countries—or the multinational actors in this country—may well assume he is consulting his personal interests in making his official decisions. They may thus treat Trump’s personal financial interests as a relevant variable when making strategic decisions about how to interact with the President. This creates unprecedented potential for diplomatic misunderstandings, mixed messages, one-sided improprieties and persistent suspicion wherever the Trump organization has established financial interests.

The discussion, then, can’t be limited to whether Trump is, in fact, acting in the best interests of the United States and whether the public can effectively monitor his dealings. Our concern must extend to the dilution of the United States’ power and distortion of its message on the world stage when it come to all manner of issues implicating U.S. diplomatic credibility and moral leadership.

A prosaic example: In Turkey, not long after the Trump Organization inked a deal with the powerful Dogan Group to fix the Trump brand on a tower complex, the chairman of the Dogan Group, Aydin Dogan, was indicted on criminal smuggling—charges that critics say amounted to retaliation for his media outlet’s criticisms of Turkish President Recep Tayyip Erdogan. Turkey is now in the midst of a brutal media crackdown that has triggered global condemnation. If Trump reaffirms the U.S. position on freedom of the press to Istanbul, to what extent will the moral force of the American message be undercut by Trump’s continuing financial connections to Dogan?

In short, Trump’s global business interests present a problem of distributed risk across many foreign policy and national security vectors. By “distributed risk,” I mean that the presidency is as much a seat of vulnerability as it is a seat of power; the many entities and governments that presently have the ability to affect President-elect Trump and his many business affiliates also, by extension, have the ability to affect the wellbeing and authority of the United States.

This is why the Founders included the now much-discussed Emoluments Clause in Article II; it is on its face a national security provision designed to protect the country from officers too enmeshed with foreign interests. The provision provides that “no person holding any office of profit or trust” shall “accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state” without congressional consent. There is a robust debate unfolding right now among legal ethics experts and academics about what the provision requires of Trump and, should he refuse to act, what it requires of Congress.

There’s actually a pretty easy answer to this problem for a normal candidate: to retain credibility on the personal conflicts front, such a person would convene a group of independent experts to formulate a comprehensive set of recommendations regarding the disposition of his assets, and he would follow those recommendations. The recommendations would be complicated and messy, because Trump’s holdings are large and illiquid. And Trump will resist any call to convene such a group, presumably has no desire to be pressured into selling off his empire. But it still needs to be the expectation.

Draft legislation introduced by Rep. Katherine Clark, which would require the President and Vice President to place their assets in a certified blind trust or disclose when they make a decision that affects their personal finances, is a commendable start to congressional action. But as made evident by former White House ethics lawyers Richard Painter and Norman Eisen, who have offered their own recommendations on how such a trust might be established, the devil is truly in the details, and independent experts would lend credibility to the process by which these details are devised.

It’s certainly not enough that Trump’s closest lawyers, Alan Garten and Donald McGahn—whose names have graced many a dubious Trump cease-and-desist letter and have been floated for the White House counsel gig—are likely grappling with these issues from the inside. On this issue, the American public cannot simply take the word of folks long on Trump’s payroll.

Before November 8, 2016, we took for granted the need for minimization of the president as an individual with personal interests to ensure maximization of his ability to serve 325 million people who are counting on his good faith. We accepted as a matter of course that the president himself must become smaller so that his job, his constitutional duty can properly fill out and define any decision our votes have empowered him to make. However complicated Trump’s conflicts, now is not the time to shed hundreds of years of baseline expectations. Any argument that we must live with Trump's conflicts because voters knew what they were getting themselves into or because Trump is unlikely to distance himself from his businesses—iterated most recently by Holman Jenkins in the Wall Street Journal —is defeatist and underestimates both the extent of the problem and how far Congress and the public should be willing to go to mitigate it.

The business of national security is hard enough without putting into play fundamental questions about not just presidential good faith but global confusion about that good faith. Trump’s failure to appoint an ethics committee to dispose of his financial empire as needed—and Congress’s lack of interest so far in forcing his hand in the event of that failure—will not just undermine his credibility on security issues at home but also risks influencing the strategic assessments of world leaders watching closely as he primes the canvas of the next four years.

Jane Chong is former deputy managing editor of Lawfare. She served as a law clerk on the U.S. Court of Appeals for the Third Circuit and is a graduate of Yale Law School and Duke University.

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