Donald Trump is still two months away from being sworn in, but already his incoming administration faces ethical concerns largely unparalleled in White House history. The Trump Organization will create a cluster of conflicts of interest for the Trump administration, both at home, where the for-profit company does business with the U.S. government, and abroad, where it does the same with foreign ones. The president-elect’s promise to avoid such ethical morasses by creating a “blind trust” run by his adult children does nothing to allay those concerns given it would be neither inherently blind nor particularly trustworthy.
While the unavoidable interplay between the company that bears Trump’s name and the country that he will soon lead has been the most obvious area of concern, it is hardly the only one. Trump is reportedly considering giving his son-in-law, Jared Kushner, a job at the White House, a personnel decision that risks running afoul of anti-nepotism laws crafted to limit the influence family members have on the running of the U.S. government. Further “complicating” things: Jared is married to Ivanka, one of the Trump children expected to run the “blind trust” (who nonetheless sat in on her father’s official meeting with Japan’s prime minister on Thursday). There are also concerns about potential conflicts of interest created by those who helped get Trump elected—from Rudy Giuliani (business dealings in the Middle East) to Chris Christie (still shadowed by Bridgegate) to Paul Manafort (friend to foreign tyrants). And more broadly, there are serious fears about Trump’s desire to avoid public transparency by hampering the press from doing its constitutionally protected job.
The good news is that there is one person who is uniquely positioned to clean up this mess before the Trump family’s business interests become intertwined with, and in many ways indistinguishable from, U.S. policy. The bad news, however, is that in our system of government that person is Donald J. Trump.
There is no law that requires a president to divest himself of his financial interests before taking office. In modern times, presidents have simply done so to avoid conflicts of interest before they happen. (While most recent presidents have gone the actual blind-trust route, Obama was a notable exception: He placed the majority of his assets in run-of-the-mill index funds and Treasury notes, which he disclosed publicly and which had the added benefit of aligning his financial fortunes more directly with those of the nation.) Good government watchdog groups and ethics experts, then, can cry foul over Trump’s nonsensical interpretation of a “blind trust,” but they can’t actually stop him from implementing it. Likewise, the Constitution gives the president broad authority as chief executive to choose his own advisers, and Trump’s Mike Pence–led transition team believes it has already found a loophole that will allow Kushner to work at the White House.
Kushner’s case is particularly illustrative. In 1967, Congress passed a law barring public officials from hiring family members—including in-laws—to an agency or office they oversee. That move was in response to President John F. Kennedy’s selection of his brother, Robert F. Kennedy, as his attorney general earlier that decade. Theoretically, then, Trump can’t give Kushner a job in his White House. Theory and practice, however, often diverge when it comes to Trump. His team believes it can skirt the familial ban by having Kushner serve as an unpaid adviser, a position that would give the wealthy 35-year-old the responsibilities and access of a presidential adviser, just without the government paycheck. It’s unclear if such an arrangement would hold up in court, but it appears likely that Trump is willing to find out.
As the New York Times points out, Trump also has a second possible line of defense when it comes to Kushner: Hillary Clinton’s health care task force during her husband’s first term in office. In a 1993 case concerning the potential release of records of that panel’s internal workings, a U.S. district appeals court in D.C. ruled that Clinton was acting as a full-time government employee in her capacity as task force leader. While the court noted that, as first lady, Clinton had a unique role in her husband’s administration, it nonetheless created the legal possibility that the anti-nepotism rules don’t apply to the White House. Ironically, then, Trump’s best defense may be to cite the similarities between his situation and those of a political couple that he’s spent the past year accusing of widespread corruption.
Assuming Trump follows through with plans to place family members in top positions both in the Trump administration and the Trump Organization, he could find himself embroiled in legal battles down the road. The most likely would center on the so-called emoluments clause of the Constitution, which bars federal officials from accepting gifts or payments from foreign governments and which Trump would risk violating if the Trump Organization benefits financially from its dealing with businesses aligned with foreign governments.
Those legal challenges, however, would come after the fact, not before. Our form of government gives the sitting president broad leeway to act first and face the consequences later, if at all. Many of the ethics laws and conflict-of-interest statutes that apply to other executive branch employees and cabinet members do not apply to the president, but for those that still do—like ones against bribery and receiving benefits from foreign countries—enforcement would fall either to Congress, which is now controlled by Republicans currently celebrating Trump’s electoral victory, or to the Justice Department, which reports to the president and will probably be run by this guy. If either were to ultimately find evidence that Trump violated the law, he could face impeachment and possibly even criminal charges. But that would punish Trump for his actions, not prevent him from taking them in the first place. You’d think the threat of criminal charges would be enough to stop even a morally misguided president from breaking the law, but we’re not talking about just any morally misguided president here.
Unless the courts or Congress step in, the only things that can actually force Trump to act ethically in setting up his administration are political norms—and it’s no secret how he feels about those. He was the first presidential nominee from either party in four decades not to release his tax returns. (His given reason—that he was being audited—made no sense; his real one—that he was afraid of the political fallout—made much more.) And then there were all those other political customs and social mores that he routinely ignored during the campaign, from flaunting his wealth to attacking the family of a fallen U.S. soldier to creating a media black list to egging on his violent supporters.
Ultimately, Trump’s ethics problem is a political one for the time being—and we know how Trump deals with political problems: He ignores them. It’s possible that he will ultimately end up paying a price for his actions, but it should hardly be a surprise that Trump appears undeterred by that possibility. He has no reason to believe voters will hold him accountable for his actions. After all, they didn’t on Election Day.