The question I am often asked
these days is: “Will Trump be impeached?” My answer has been “for what?”
Impeachment is a remedy reserved to Congress to remove a President (and other government
officers) found guilty of “treason, bribery and other high crimes and
misdemeanors committed whilst in office.”
So, until Trump takes over on 20th January next year, the
question is moot and he is free and clear.
Last week, the
President-Elect met with reporters from The
New York Times. When questioned about how his business interests would be
run, he stated that conflict of interest laws did not apply to him and he could
run his businesses from The White House. “In theory,” Trump said, “I could run
my business perfectly and then run the country perfectly.” This
was Trumpese at its best but his assertion came as a surprise to me. Trump’s interpretation
of the law is wrong. The law does not permit
a President to have a conflict of interest as of right. Whilst
it is correct that Congress has exempted the President and Vice President
from conflict-of-interest laws in general, it has reserved
the right to judge individual conflicts.
In 1974, uber-wealthy
Nelson Rockefeller, heir to a fortune and the presumptive VP for Gerald Ford, agreed to Congressional hearings when his multitude of business interests were examined closely.
The Justice Department subsequently confirmed Rockefeller’s right to conflict exemption.
Four years later, the Ethics of Government Act and then the 1989 Ethics Reform
Act codified the principle, effectively that where conflicts of interest
were concerned, Congress could assume the President and Vice President can
be trusted to do the right thing. However both statutes reserved to Congress the
right to examine any situation where the chief executive or his second in
command might have done the wrong thing, especially if it amounted to a ‘high
crime and misdemeanour.’
When Rockefeller received
his exemption, he offered to put his assets into a blind trust but Congress
decided this was unnecessary in his case. A blind trust is one where trustees independently administer the private business interests
of a person in public office to prevent or avoid conflict of interest. Trustees
cannot be family members. Former Presidents Lyndon
Johnson, Jimmy Carter, Ronald Reagan, George W. Bush, George H.W. Bush and Bill
Clinton each placed their personal assets in a blind trust, even though they may
have had no legal obligation to do so. In none of these cases did family
members act as trustees because this would be a breach of federal law.
Incidentally, President Obama did not follow the blind trust example but all his
assets were invested in mutual funds and Treasury bonds, thus there was no need
for trustee administration.
Much of Trump’s wealth
is contained within his corporations and tied in with the Trump brand. Trump’s choice
for chief of staff, Reince Priebus, has promised that White House
counsel will review all potential areas that could pose a conflict: “I can
assure the American people that there wouldn’t be any wrongdoing or any sort of
undue influence over any decision-making.” But how can this assurance be worth
anything if White House counsel are not aware of all the facts? Neither Trump
nor Priebus has undertaken to ensure full disclosure of Trump assets to the lawyers.
One only has to remember Richard Nixon and his failure to tell his lawyer,
James St. Clair, about the full extent of his participation in the Watergate
scandal. As a result, in court St. Clair was hung out to dry.
Trump’s Achilles heel
might be his refusal to disclose his tax returns. The Washington Post reported this week that Congressional Democrats
are calling for an investigation into Trump’s ‘business entanglements.’ Democratic
members of the House Oversight and Government Reform Committee have called on the
chairman, Jason Chaffetz, to review Trump’s financial arrangements in order to
identify and protect against potential conflicts of interest. To date, Chaffetz
has not responded. Probably, there is little in the Trump’s tax returns which
will discomfort him, save that he may have over-stated his wealth. Politically,
however, he will face trouble if he continues to refuse disclosure. The media
will ask what he is hiding and will not give up until they get what they want.
Eventually Trump will be forced to publish so the best thing he can do is disclose
the returns right away.
There is little point
in my examining further the legalities of conflicts of interest and blind
trusts as I suspect these issues will occupy the time of countless numbers of
attorneys all over the United States for many months. Conflict of interest law
suits against Trump interests are hovering. Trump’s nature will make him want
to defend all such suits vigorously. However, after the Inauguration, he will
be a politician first, one who, according to American myth, is vested with
enormous powers. Every action he takes will be scrutinised. And I mean every
action. There is a log kept by White House officials called “the ticker” which
records all the President’s actions on a three minute basis. Every call, every
conversation and everything he does will be committed to paper. He will have no
privacy. Even if Trump behaves within the letter of the law, politically his
Presidency will be damaged, perhaps permanently, if the voters believe he is hiding
his financial moves and using Presidential power to further his personal
interests.
I am certain that in
America’s criminal code there is an offence which prevents a President from
using his office for personal financial benefit. However, referring back to the
impeachment proceedings against Nixon and Clinton, it was never suggested that
either man had acted in this way. None of Nixon’s men who were imprisoned over
Watergate sought wrongful financial gain from their actions. As for Clinton, he
did nothing at all wrong in the Whitewater affair. In fact, his investment
proved to be a total loss.
It is clear from the
impeachments of Nixon and Clinton that the process is far more political than
legal. For example, Ronald Reagan was caught red-handed in the Iran-Contra
affair when he twice knowingly broke Acts of Congress, clearly impeachable
offences. But there was no political will within Congress to pursue him. Did Trump’s
recent encouragement of an Argentine delegation to use his new Washington hotel
cross a line? If so and if this type of action is left unchecked after Inauguration,
such behaviour could put the new President into serious hot water.
Will Trump be
impeached? Much depends on whether Trump’s Presidency is perceived as a success
or a failure. For example, if his economic policies result in a boost for US manufacturing,
improved wages for US workers and a better tax take, the voters will not
encourage their legislators to try to remove him, even for cause. However, D.C.
politics tells me Trump is regarded as an Independent, not a Republican.
Congressional Republicans might leap at any opportunity to remove Trump from
office because he would be replaced by VP Mike Pence, a politician who fits the
current Republican blueprint so much better than his boss.