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Wednesday, November 23, 2016

Is the Law Really on Trump's Side?

The law's totally on my side, meaning, the president can't have a conflict of interest.

--Donald Trump, interview with the New York Times, November 22, 2016
Perhaps some of my truckbuddies were as surprised as I was to hear that the Orange One is not required by law to place his business holdings in a trust when he takes office. But it's true, and as a public service, your Head Trucker has tracked down what the law says about it. The relevant statute is Title 18 of the United States Code, Crimes and Criminal Procedure, under Part I of which Chapter 11 deals with Bribery, Graft, and Conflicts of Interest - here is the first part of the contents of Chapter 11, via the Legal Information Institute of Cornell University:

Click to enlarge.

Section 208 of Chapter 11 deals with Acts affecting a personal financial interest, and applies to all federal officers and employees; but Section 202, subsection (c), specifically exempts the President, Vice President, Members of Congress, and federal judges. Read it yourself:

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This law was passed by Congress in 1962 as a comprehensive reform of conflict-of-interest guidelines.  Here is what the Washington Post's Fact Checker has to say about it:
The law doesn’t say the president can’t have a conflict of interest. But Congress, under Title 18 Section 208 of the U.S. code, did exempt the president and vice president from conflict-of-interest laws on the theory that the presidency has so much power that any possible executive action might pose a potential conflict.

“As a general rule, public officials in the executive branch are subject to criminal penalties if they personally and substantially participate in matters in which they (or their immediate families, business partners or associated organizations) hold financial interests,” the Congressional Research Service said in an October report. “However, because of concerns regarding interference with the exercise of constitutional duties, Congress has not applied these restrictions to the President. Consequently, there is no current legal requirement that would compel the President to relinquish financial interests because of a conflict of interest.”. . .

While spoken in classic “Trumpese” that fails to capture the nuances of the law, the president-elect did rightly point to an exemption for the president and vice president in conflicts of interest laws. And while such an exemption exists, the theory was that the presidency has so much power that any policy decision could pose a potential conflict. The law assumed that the president could be trusted to do the right thing and take actions to avoid appearance or presence of impropriety — not that the law is “totally” on the president’s “side” or that it would allow the president to use the exemption to his favor.

Trump’s statement does not quite rise to the level of a Geppetto Checkmark, nor does it qualify for a Pinocchio. So we will not rate this claim. Trump, nevertheless, should be more careful about his wording on this point. It’s quite possible he will face a number of conflicts of interest during his presidency. The law may offer an exemption for the president, but political reality — and perception— often does not.
So there you have it. Trump can legally, in his words, "run my business perfectly and then run the country perfectly. There's never been a case like this." The only hindrance is the provisions of Article I, Section 9, Clause 8 of the Constitution:
No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
But little good will that do with a man whose global business organization far outruns anything the Founding Fathers could have imagined.

Some other pertinent readings on this topic if any of you boys are interested enough to look at them:

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