January 18, 2017 at 1:32 pm EST | by Brianne J. Gorod
Even core responsibilities create conflicts for Trump
Trump Tower, gay news, Washington Blade, Emoluments Clauses

Trump Tower on Fifth Avenue in Midtown Manhattan. (Washington Blade photo by Michael K. Lavers)

The Senate is conducting a confirmation blitz for 10 of President-elect Donald Trump’s announced Cabinet-level choices. The dizzying speed and compressed time in which these hearings are being held is troubling enough to those who prefer more thoughtful consideration of anyone who, if confirmed, would wield great power. Worse, because we don’t know the full extent of the President-elect’s financial holdings, each nominee could intentionally or inadvertently place their boss’s private business interests over their duty to protect the national interest.

As he appoints agency heads throughout the federal government, Trump is or will be choosing people to lead agencies that not only are investigating or could investigate his businesses, but also that could enrich them. That’s why the Senate’s constitutional duty of “advice and consent” is so important: it is supposed to help ensure that nominees can be trusted to work in the interest of the public, not in the interest of the man advancing their careers.

Of course, the Senate can’t provide informed “advice and consent” without a full picture of the potential conflicts. And it can’t know that full picture unless Trump fully discloses his debts and assets. As if Trump’s imminent collision with the Constitution’s Emoluments Clauses were not enough, this additional possibility of conflict is a significant reason why Trump should release his tax returns, sell his businesses, and place his assets in a blind trust.

The U.S. Constitution provides that the President, and the President alone, nominates the heads of federal agencies and other top federal officers. Each executive branch officer will swear an oath to “support and defend the Constitution.” Unless Trump sells his businesses, he will test the strength and independence of each appointee to avoid decisions designed to serve the President’s private interests.

Consider some of the possible conflicts that could arise: Trump’s chosen Attorney General, who will oversee the Office of Legal Counsel within the Justice Department, could bless Trump’s violations of the Emoluments Clauses. His Secretary of State could weigh policy decisions based on how they will affect Trump’s overseas properties. His Transportation Secretary could make infrastructure choices that benefit his domestic properties.

A number of serious conflicts are already looming.

Trump claimed during the presidential campaign that he is regularly audited by the IRS. “Every year they audit me, audit me, audit me,” he said. The current IRS Commissioner’s term will expire in late 2017, and Trump will name his successor—the person who will lead the agency that, according to Trump, has been auditing him for more than a decade. In appointing the next IRS Commissioner, will Trump be motivated, at least in part, by which candidate he thinks would look most favorably on whatever has drawn the attention of the auditors? And will Trump’s choice for the post feel a sense of debt to the man who elevated him or her to high office?

Or consider the many Trump hotels subject to labor laws enforced by the National Labor Relations Board (NLRB). One need not imagine labor conflicts arising between Trump hotel employees and management; they’ve already occurred. Until a month ago, a Trump hotel in Las Vegas refused to negotiate with the union representing hotel employees. The NLRB heard the case, and although the parties settled, one complaint is still pending. Trump will soon have the opportunity to appoint two of the NLRB’s five members, and he will be able to appoint a third at the end of this year. It’s no stretch to think he might favor candidates who most often side with management in disputes or that his nominees will feel indebted to the man who appointed them.

Last month, the New York Times reported that South Carolina regulators are deciding if a failed business venture owned by an affiliate of the Trump Organization qualifies for a program that permits voluntary environmental cleanup and protects against liability. Although this case involves a state program, it’s not beyond reason that other Trump ventures could draw the notice of federal environmental regulators. Trump, in fact, has already named his Environmental Protection Agency Administrator — Oklahoma Attorney General Scott Pruitt, a climate change denier, who has long battled against “unnecessary EPA regulations.”

As long as Trump refuses to sell his vast business holdings — and that appears to be his plan, notwithstanding the constitutional violations this would create — these types of conflicts will hound him throughout his presidency. To preserve the integrity of the office of the President, Trump should stop stalling and take the steps necessary to ensure that he — and the people who work in his administration — will truly work for the people’s interest and not the president’s.

Brianne J. Gorod is chief counsel for the Constitutional Accountability Center. Follow her on Twitter @BrianneGorod.

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