Less than a week after the presidential election, Rudy Giuliani, one of Donald Trump’s top surrogates, was asked about the president-elect’s obvious conflict-of-interest problems. The former mayor told CNN’s Jake Tapper, “Well, first of all, you realize that those laws don’t apply to the president, right?”It wasn’t long before one of Richard Nixon’s most notorious claims came to mind: “When the president does it, that means it is not illegal.” In this case, Giuliani was effectively arguing that President Trump can’t break laws pertaining to conflicts of interest because the president is above those laws. Other government employees must steer clear of official actions that affect their personal finances, but the man in the Oval Office need not worry.Trump himself sat down with the New York Times today and repeated the argument.
Mr. Trump brushed aside questions about conflicts arising from his business dealings, declaring that “the law’s totally on my side, the president can’t have a conflict of interest.”
There is some truth to the underlying claim. As Ian Millhiser explained, the president is exempt from certain ethics laws: “One law, for example, prohibits many federal employees from participating in matters where they or a member of their close family has a financial interest in the outcome. But the president is exempt from this law. That exemption is likely a nod to the unique nature of the presidency – there are certain decisions that can only be made by the president, and thus if the president were conflicted out the government could be paralyzed.”Of course, presidents have usually gone out of their way to avoid untoward appearances by putting their investments and business interests in blind trusts — the one thing Trump could do to avoid potential controversies, but won’t.Regardless, Trump’s legal exemption does not apply to the U.S. Constitution, which he’s going to have to follow.And as NBC News noted this morning, Trump may not have to worry about the conflict-of-interest laws his subordinates have to honor, but his business entanglements “could potentially violate the Constitution’s little-known Emoluments Clause.”
The Constitution states, “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 emphasis is ours). As the New York Times writes, “emolument” means compensation for labor or services, and President Obama’s Justice Department looked at the matter when he won the Nobel Peace Prize, which included a $1.4 million check. The Justice Department lawyer “concluded that Mr. Obama could accept the prize because the committee that chose him was independent of the Norwegian government and the prize itself was privately financed. But he said that the answer would be different if a foreign government sought to make a payment to a sitting president. In a footnote, [the lawyer] added, ‘Corporations owned or controlled by a foreign government are presumptively foreign states under the Emoluments Clause.’”And, of course, Trump still has plenty of business ties with corporations tied with foreign governments. His “ventures include multimillion-dollar real estate arrangements — with Mr. Trump’s companies either as a full owner or a ‘branding’ partner — in Ireland and Uruguay. The Bank of China is a tenant in Trump Tower and a lender for another building in Midtown Manhattan where Mr. Trump has a significant partnership interest,” the Times adds. The reason why the Emoluments Clause hasn’t been much of a topic before is that past presidents have disassociated themselves from their business dealings. That isn’t the case with Trump. At least not yet.
At this stage, Trump seems entirely indifferent to the questions, conflicts, and brewing controversies. The president-elect wrote on Twitter last night, “Prior to the election it was well known that I have interests in properties all over the world. Only the crooked media makes this a big deal!”Trump’s business interests were well known ahead of the election, but voters did not know that the Republican, after winning, might use his position and his office to make money for himself. His tweet, however, suggests Trump is prepared to do as he pleases, blaming journalists who shine a light on the potential for corruption.
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Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."