Robert Rizzi is a tax partner at Steptoe & Johnson in Washington and teaches government ethics at Harvard Law School.
I’ve practiced government ethics law for more than 15 years and have advised scores of presidential appointees of both political parties on how to comply with conflict-of-interest and disclosure rules. The sprawling, complex and illiquid holdings of Donald Trump raise difficult questions about how — or even whether — a President Trump could assure the American people that his official decisions would not be influenced by his personal financial interests. This debate, reignited by new reports involving his business dealings, also reveals surprising — and in some cases disturbing — gaps in the rules that regulate government ethics.
If President-elect Trump walked into my office seeking ethics counsel, what would I advise him? It would be an unusual conversation, one that would have to include telling him that his announced plan — to deal with potential conflicts by transferring his holdings to a “blind trust” run by his children — is neither required by law nor likely to satisfy technical standards of what constitutes a blind trust. Those standards for a “qualified blind trust” require that the trustee be “independent” (usually an institution, such as a bank); the Trump children would not meet that test. Furthermore, an elected official cannot be “blind” to trust property he knows about — a hotel with the name Trump on it is not exactly secret — until those assets are sold off.
However, I would tell the president-elect that, although government ethics rules generally prohibit federal employees from taking actions affecting their own personal financial interests, as president he would be completely exempt from all criminal conflict-of-interest prohibitions. For example, the president could own 50 percent of Gazprom (with Vladimir Putin perhaps owning the rest), and he could cancel all U.S. sanctions, causing his stock to double in value without violating any criminal laws. The reason for this exemption is partly a reflection of the constitutional separation of powers, and partly a recognition that elected officials are subject to a different enforcement mechanism for potential corruption: elections. Members of Congress are also exempt from criminal conflict-of-interest rules, for the same reason.
Second, I would point out that the president will still be subject to a reasonably robust disclosure regime. The candidate has already filed a public financial disclosure form, commonly called the “278,” that provides extensive information about assets, income and liabilities. The form, which would have to be updated once a year on May 15, is focused on revealing anything that may give counterparties influence over officials while in office, especially creditors. A failure to disclose extensive personal borrowings is one of the reasons that Bernie Kerik, unsuccessfully nominated to be homeland security secretary, was sentenced to four years in federal prison.
Still, the required disclosures are not foolproof — and in Trump’s case present a particularly significant gap. The disclosure form indicates that he has borrowed large sums, much of it from German banks. However, it does not disclose debt owed by companies a person owns, even if they are 100 percent shell corporations — and the Trump Empire includes hundreds such companies. Those companies could be heavily indebted to unsavory lenders, and the public would be none the wiser. To provide an accurate sense of his exposure, Trump would have to go above and beyond what is required by ethics rules.
Third, I would indicate to my potential client that there are two major drawbacks to his announced plan to transfer control of holdings to his children, beyond the fact this move alone would not satisfy the technical rules. If he plans to have those holdings returned following his term in office, after being “parked” temporarily with his children, at a minimum, such a move would violate the spirit of government ethics rules; at least one former official has been referred to the Justice Department for prosecution in such circumstances. Furthermore, if he transfers actual title to his children, as well as control, as a tax lawyer, I would be remiss if I did not advise my client of a major downside: He would have to pay $4 billion in gift taxes, at least based upon his self-valuation of the Trump Empire.
The bottom line is that the current ethics regime will have little impact on a hypothetical President-elect Trump. His proposed method of dealing with assets that pose financial conflicts would be potentially financially unwise and almost certainly ethically inadequate. To the extent voters believe that conflicts of interest and an ability to add to his personal wealth while in office present a real problem with Trump’s candidacy, government ethics laws do not offer much in the way of comfort.