Omar Bennett
The 2016 US presidential election brought about unprecedented conflicts of interest, with Donald Trump becoming the first president in decades to refuse to remove notions of financial conflicts of interest. This sparked a new era of presidential and vice-presidential candidates, with conflicts of interest occupying a place of anxiety in the public consciousness. While conflict of interest laws do not extend to the President and Vice President, there is a growing need to address these issues to maintain public trust in government. This paragraph will explore the topic of presidential conflicts of interest in the constitution, examining the challenges and potential solutions.
| Characteristics | Values |
|---|---|
| Conflict of interest laws | Do not extend to the President and Vice President |
| Founders' intention | To prevent interference with their Article II constitutional powers |
| Emoluments clause | Prohibits the President from accepting foreign gifts |
| Bribery provisions | Applicable to the President |
| Transparency and disclosure | Commonly used management tool |
| Blind trust | Used by most U.S. Presidents since Jimmy Carter |
| Impeachment | Can be used as an incentive for Presidents to sever their conflicts of interest |
| Congressional guidance | Three pages of guidance on rules that "might technically" apply to the President |
| Presidential Conflicts of Interest Act of 2017 | Bill introduced to address financial conflicts of interest of the President and Vice President |
| Presidential Conflicts of Interest Act of 2023 | Requires the President and Vice President to submit a disclosure of financial interests within 30 days of assuming office |
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The Emoluments Clause
> "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."
The purpose of the clause is to prevent the country's leaders from being improperly influenced by gift-giving, which was a common and generally corrupt practice among European rulers and diplomats at the time. The clause also broadly encompasses any kind of profit, benefit, advantage, or service, not just gifts of money or valuable objects. For example, it would prohibit a federal officeholder from receiving special consideration in business transactions with a foreign state that could give them a competitive advantage.
The Constitution also contains a "domestic emoluments clause" (Article II, Section 1, Paragraph 7), which prohibits the president from receiving any "Emolument" from the federal government or the states beyond "a Compensation" for their "Services" as chief executive.
The interpretation of the Emoluments Clause has been a subject of debate, and while it has been cited by the Supreme Court, it has rarely been substantively analysed or interpreted by the courts. During the administration of President Donald Trump, several lawsuits were filed alleging that he had violated the Emoluments Clauses by retaining certain business and financial interests during his presidency.
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Employing relatives
The U.S. Constitution does not explicitly outline conflicts of interest for the President, and there is a lack of clarity regarding what a President can or cannot do. This has resulted in varying interpretations and applications of conflict of interest rules for different Presidents. While there is no explicit mention of employing relatives in the Constitution as a conflict of interest, employing relatives is prohibited under federal ethics laws.
Federal ethics laws prohibit officials from personally participating in matters involving themselves, their family members, or connected organizations. These laws require recusal for those with a substantial financial stake in a matter. However, they only apply to current or existing financial interests, not past affiliations.
The absence of clear conflict of interest rules for the President has led to concerns, especially when a President has extensive business interests. For example, President Donald Trump's refusal to remove himself from his business interests during his presidency raised questions about potential conflicts. Trump's business dealings, both domestic and international, created unprecedented conflicts, with accusations of bias, bribery, and the potential influence of U.S. foreign policy by his self-interest.
To address these concerns, Congress has proposed bills like the Presidential Conflicts of Interest Act of 2023, which aims to regulate financial conflicts of interest for the President and Vice President. The bill includes requirements for financial disclosures, divestment of potential conflicts, and annual reports on financial interests.
While there is no explicit constitutional prohibition on employing relatives, the interpretation and enforcement of federal ethics laws regarding conflicts of interest, including those related to employing relatives, are essential to maintaining public trust and ensuring ethical governance.
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Bribery provisions
The issue of presidential conflicts of interest has gained prominence in recent years, with the 2016 election of Donald Trump, who became the first president in decades to refuse to address financial conflicts of interest. This brought to light the lack of clarity regarding conflict of interest provisions for the president. While the president and vice president are exempt from the federal conflict of interest statute, certain clauses in the Constitution, such as the Emoluments Clause, do prohibit some conflicts of interest.
The Constitution addresses bribery in the context of impeachment, stating that "the president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors." However, the lack of clarity regarding what constitutes "high crimes and misdemeanors" presents a challenge in enforcing this provision.
To address these concerns, Congress has introduced bills such as the Presidential Conflicts of Interest Act of 2017 and 2023. These bills aim to address financial conflicts of interest by requiring the president and vice president to disclose their financial interests, divest from conflicting assets, and prohibit their involvement in certain contracts. The bills also extend to the spouses and minor children of the president and vice president, ensuring transparency and mitigating potential conflicts of interest.
The issue of bribery provisions and presidential conflicts of interest is a complex and evolving topic. While there are no easy solutions, it is crucial to maintain public trust and ensure that the president's judgment is not influenced by secondary, private interests. By addressing these conflicts of interest, we can uphold the integrity of our democratic institutions and the public good.
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Blind trusts
The 2016 presidential election brought about unprecedented conflicts of interest, as Donald Trump was the first president in decades to refuse to remove notions of financial conflict. Trump's acquisitions abroad led to accusations of bias and bribery, with fears that US foreign policy would be influenced by his self-interest. This situation highlighted the ineffectiveness and outdated nature of current conflict of interest laws, which do not extend to the President and Vice President due to an outdated fear of interfering with their Article II constitutional powers.
To address these issues, Congress could use its impeachment power as an incentive for Presidents to sever their conflicts of interest. Additionally, there have been proposals for a constitutional amendment to require Presidents to remove their conflicts of interest. However, amending the Constitution is unlikely to be successful. Another alternative is the use of blind trusts.
A blind trust is a device used by a federal official to hold, manage, and administer their private financial assets, investments, and ownership, as well as those of their spouse and dependent children. The official transfers control of their private assets to an independent trustee, who has no communication with the official about the trust's holdings. Over time, the official is shielded from knowledge of the specific assets in the trust through the sale and purchase of new assets.
The establishment of a qualified blind trust can be used as a conflict of interest avoidance device, providing an alternative to the outright divestiture of particular assets. Blind trusts are often used as a remedial measure for specific conflicts, with ethics agreements in place to address potential issues.
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Impeachment
The Constitution gives Congress the power to impeach federal officials, including the President, Vice President, and all civil officers of the United States. The House of Representatives brings articles of impeachment (charges) against an official, and if these are passed by a simple majority vote, the official has been impeached. The Senate then holds an impeachment trial, with the chief justice of the United States presiding in the case of a presidential impeachment.
The grounds for impeachment are limited to "treason, bribery, or other high crimes and misdemeanors". However, the Constitution does not define "high crimes and misdemeanors", and this has been the subject of much debate. Impeachment proceedings may be requested by a member of the House of Representatives, who presents a list of charges under oath, or by non-members such as a special prosecutor, the president, or a state or territorial legislature.
Congress could use its impeachment powers to incentivize presidents to sever conflicts of interest, such as financial conflicts. However, impeachment is not a predictable means of holding presidents accountable, as it is both a political and legal process.
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Frequently asked questions
A conflict of interest arises when an official has "secondary," private interests that may affect their judgment about how best to promote the public good.
Some examples of presidential conflicts of interest include financial conflicts, such as owning a multibillion-dollar empire or having large private assets, as well as employing relatives and accepting bribes.
The Emoluments Clause of the Constitution prohibits some conflicts of interest. Additionally, Congress has enacted legislation, such as the Presidential Conflicts of Interest Act, to address financial conflicts of interest of the President and Vice President.
Managing presidential conflicts of interest can be challenging due to the fear of interfering with the President's constitutional powers. There is also a lack of clear and consistent regulations or constitutional provisions extending to the President and Vice President.
