The American presidency and conflicts of interest

The media is questioning the conflicts of interest of our new President. He has responded with a press conference and a much criticized plan to devolve control to his two sons (among some other measures), noting that conflict of interest statutory provisions do not apply to the President.

There is some truth to his claim, although the Constitution's emoluments clause does apply and would appear to be a problem given the international scope of his assets. Where foreign nations use the President's commercial assets as leverage to obtain favors, that provision is violated. And recent caselaw indicates that there is liberal standing by commercial victims to bring suit. And, of course, it may constitute "high crimes and misdemeanors" triggering impeachment proceedings, although the current Congress is unlikely to enforce this clause given the primacy of political factors.

The President would be well advised to not engage in family delegation or partial measures but should clearly divest himself of any asset with serious international weight. Such divestment is best tendered to a mechanism where he lacks control or even knowledge of its nature, a truly "blind trust." He need not sacrifice the value of his assets and will have considerable monies upon his retirement or defeat in future years. But the Presidency of the United States is rather an important post. It warrants such a deferral during its term. To refuse to do so fails to follow prudent legal advice, and is also an insult to our Founding Document that he and so many claim to revere.

But there is more to this issue than the emoluments clause. And I write this fully mindful that many Americans, with some justification, view the media as an unfair persecutor of Donald Trump. There is clearly strong negative bias, especially from television -- some of it unfair. When Trump criticizes NATO European nations who do not pay their fair share of its expenses (although it most directly defends them), he has a fair point. In fact, a compelling one. It gets exaggerated into an attack on the existence of NATO and massaged into the storyline that he is a secret Putin lover who will allow Russia to rule the world. But these and many other ad hominem attacks, not unlike his similar mindset, have resulted in a typical failure to even discuss the real issue.

The real issue is the undermining of the most important check in the American system of government and it extends well beyond the emoluments clause. Our primary check is not the three branches vis-à-vis each other. As important as they are, they are subservient to the underlying check -- the separation of the public state and private industry/commercial interests. That is the 9th grade Civics lesson that is being forgotten. We have rejected socialism -- a system where that check is abrogated and the state owns and operates the means of production -- in a single structure. There is one worse system, where that check is similarly removed but in reverse, the means of production (industry and commercial enterprise) owns the state. That is the ultimate corruption of American democracy.

We can argue about how large the state should be. And we should. Conservatives cite important factors to consider, including a number of contentions of President Trump while campaigning. It may well be the case that "the state that governs best governs least." And some of us strongly favor using self-regulating systems and important market attributes that can accomplish efficient allocation of resources. They may need adjustment where there is a lack of competition, or where there are what economists call "external costs" (health dangers, pollution, et al.) Indeed, California's system of "sunsetting" regulatory agencies -- making them affirmatively justify their continuation -- has both theoretical merit and a positive track record.

But whatever the scope or the degree of power of the state, it is properly separate from the economic interests with a stake in public laws and policies. That failure of "neutrality on the merits" is already threatened through organized campaign contributions and lobbying increasingly dominated by those interests. They hire former members of Congress and Congressional staff, and contact our elected and appointed officials in concealed and virtually unlimited fashion. While there is a need for consultation and expertise that may be "on point" to a public decision, that is a far cry from what we have. But as bad as the current corruptive pattern is, we do have one line that should not be crossed. Those with a profit stake personal interest in decisions made on behalf of us, should not be the actual decisionmakers serving as our public officials. That is industrial socialism in extremis. And that is where we are headed. We already have most of our state regulatory agencies controlled by the very groupings being "regulated." A recent and critical US Supreme Court decision has now held that those bodies -- and they are everywhere -- are not legitimate "sovereign" entities. And they are not lawfully allowed to violate federal antitrust law by fashioning self-serving restraints of trade (including supply control well beyond public protection). That is an unreported but profound decision supporting the basic principle discussed above.

This is what is most worrisome about the Trump pattern thus far. It is not just his own assets. It is appointing major public officials -- who properly represent all of us -- "the People" -- and make decisions for us. And we want those decisions to honor our values, protect and advance our children, consider impacts beyond those with current private power, consider the future. Indeed, should not our lodestar be what we leave behind? It would be nice to be regarded with some of the respect and admiration in two centuries hence that we hold for those who helped create our nation 240 years ago? The individual, corporate and trade association special interests look at their own benefits and in the here and now. Nor is that accusation intended to exclude liberals or conservatives. Both are guilty of forsaking future impacts.

But the most basic, systemic safeguard that makes our democracy admirable and worthy of much sacrifice, is that those who are public officials not reflect the private interests with an economic stake in the decisions to be made. Donald Trump's appointments do not appear to be honoring this basic tenet of democracy. It is unclear if he even understands it. And if he does not, it is not surprising since it has been over the last 80 years, increasingly honored in the breach. And this growth of institutional conflicts of interest, is more important than are all of the sexual imputations and insult exchange miasma that dominate our current political discourse.