When last we checked in on Donald Trump’s vow to drain the swamp, we learned that he has adopted a plan for his businesses that will do nothing to eliminate the possibility of conflicts of interest or even corruption. Meanwhile, it’s becoming clearer and clearer that congressional GOP leaders have no intention to exercise meaningful oversight when it comes to those conflicts, which is putting us on a journey into uncharted territory, where the possibilities for conflicts and corruption are staggering.
Is there anything that principled individual Members of Congress — in either party — who want such oversight can do about this? Can individual Democrats or Republicans take steps to compel more oversight, if GOP leaders refuse to exercise it?
It turns out there are some things that individual Members can do. And it isn’t that crazy to imagine that they might make some kind of difference.
One interesting idea was suggested to me by Richard Painter, the former chief ethics lawyer for George W. Bush. He pointed out that Republican Senators who are willing to buck Trump can refuse to support a piece of legislation that Trump and GOP leaders want — or try to block it procedurally — in order to force Trump to be more transparent about business holdings that might be impacted by that legislation.
As an example, Painter suggests, if Trump and Republicans are pushing legislation to weaken oversight on Wall Street or big banks, any individual GOP Senator — or a handful of them — could presumably refuse to support that legislation unless Trump supplies a full list of all the ways in which it might impact his holdings.
Painter notes that any one of these Senators could say, “I’m not doing anything to change the status quo unless I know how much debt Trump or his companies have to the banking industry, who they owe it to, and how much.”
Remember, individual Senators have a lot of power and can wreak havoc procedurally if they so choose. And there are some GOP Senators who appear willing to buck Trump, such as John McCain, Lindsey Graham, and conservative Ben Sasse, among others.
Or take health care. Painter points out that a GOP Senator could try to block any legislation impacting health care until Trump provides a list of any relationships his companies have to insurance companies or to any “affected industries in health care.” Or, Painter notes, a GOP Senator could try to hold up any initiative involving a foreign country — a trade deal or some sort of change in foreign policy — until it is disclosed how much money Trump’s companies have invested in that country, and where.
Obviously Trump could refuse to cooperate. But the resulting standoff would draw media attention, which would focus public attention on the possibility that Trump has potential conflicts around the initiative in question, which in turn might make it less comfortable for Trump to stick to his posture — and harder for GOP leaders to continue refusing to provide serious oversight. The point is, individual Senators can find ways to make waves, if they want to.
What about Democrats? I contacted law professor Laurence Tribe, who has argued that under his current arrangement Trump will be in violation of the Emoluments Clause, and asked him what Democrats in Congress can do, if anything, to prod Republican leaders to exercise real oversight. Tribe emailed that their options are limited, but not nonexistent:
They can cajole and pressure and bargain and refuse to cooperate with Republicans on issues where the votes of the Democrats are needed. But there is no legal mechanism they can use to compel the congressional Republicans to perform their proper oversight role. Among the things Democrats can pressure Republicans to do, with uncertain success of course, is to share subpoena power with them on one or more joint investigative/oversight committees. They can certainly try to introduce impeachment resolutions despite their minority status in the House.And those of them in the House and/or the Senate who have significant constituencies of their own can use their bully pulpits, although of course nobody in either House has a megaphone comparable to the one President Trump will have access to.
That isn’t too encouraging. But Democrats are going to have to try to use such tactics to kick up as much noise as they can.
One can imagine a scenario developing in which a handful of Democratic and Republican senators team up to try to hold up legislation until Trump provides a full accounting of how that legislation might impact his companies. The press loves stories about bipartisan “gangs” of Senators, and this kind of tactic could get some attention. And by the way, if the press uncovers new and increasingly grisly conflicts that draw more public attention to Trump’s continued flouting of our norms, individual Senators or small groups of them might suddenly find themselves more inclined to make additional trouble for him.
Make no mistake: There is cause for serious pessimism about Trump’s conflicts and what they mean for the country. The vast reach of Trump’s global business holdings, and the degree to which they remain ensconced in secrecy, combine to create a potential for conflicts, as well as huge hurdles to tracking those conflicts, that put us in truly uncharted territory. GOP leaders have no apparent intention to do anything about this. But that in turn may end up forcing principled public officials to find innovative ways of trying to change that. And it’s not preposterously far-fetched to imagine that they might eventually bear some fruit.