Imagine (it’s easy if you try)…
President Trump sues the General Services Administration for terminating his lease for the Trump hotel at the old Post Office Pavilion, based on restrictions against contracting with a government official, and orders his newly appointed GSA Administrator to reinstate the contract.
President Trump threatens to cancel government contracts with a major corporation after its CEO criticizes him publicly, sending the company’s stock into a downward spiral.
Government officials in Taiwan host President Trump’s children in lavish style and grant development contracts worth hundreds of millions after President Trump calls for Taiwanese independence.
What’s an Attorney General to do?
Donald Trump may have campaigned on “draining the swamp,” but he brings an unprecedented and dazzling array of conflicts of interest to the White House and the Executive Branch.
The Attorney General is expected to maintain an arm’s-length distance from the President, providing him and his cabinet secretaries with independent legal advice while enforcing the laws of the United States.
But let’s face it: It will take an exceptionally strong and independent-minded AG to call a gator a gator and build the levees needed to keep the swamp out of the Department of Justice.
Jeff Sessions seems an unlikely pick if that’s the kind of AG Trump has in mind.
Sessions was the first U.S. Senator to back Trump in his bid for the presidency and bought into the campaign whole hog. He served as a close advisor, coached Trump on his VP pick, used a top aide to help craft Trump’s stance on immigration, and took the public position that grabbing a woman’s genitals is not sexual assault.
Session’s political loyalty to Trump and his insider status with the campaign raise serious questions about whether he can faithfully serve as “the people’s lawyer,” not Trump’s, in the face of thorny and inevitable ethics issues.
Will Sessions be up to the job?
As Attorney General, Sessions would have to set aside his loyalties to Trump to enforce the laws of the United States impartially.
Sessions would also oversee the Office of Legal Counsel, which is delegated the authority to provide legal advice to the President and Executive Branch agencies. Sessions’ views will have a major impact here, on everything from what conflict-of-interest laws apply to the President and his appointees and how to interpret the Emolument Clause, to the legality of waterboarding, a registry for Muslim citizens, and obstacles to voting.
Sessions will also have a major impact on enforcement just by virtue of his power to allocate resources, e.g., shifting funding and staff out of anti-corruption and civil rights and into criminal and immigration enforcement.
In the event of criminal allegations against Trump or his cabinet, Sessions will have the power to appoint special prosecutors through the Office of Special Counsel. (The Office of Independent Counsel was terminated in 1999 and replaced by the DOJ office.)
Conflicts from Day One
The DOJ will have to grapple with a number of conflicts issue from the day Trump is sworn into office, including:
- The obvious conflict between Trump’s business interests and the interests of the nation, and what type of blind trust or other arrangement is adequate to cure that conflict. Ethics experts are clear that Trump must divest himself from the Trump Organization, using a trustee to liquidate the assets and place funds in a blind trust, something Trump is unlikely to do. Trump had planned to announce his decision on how to handle his business conflict on December 15, but has now delayed the announcement until January.
- Trump has development projects in 20+ countries that could benefit from preferential treatment or have connections to foreign governments, not to mention US developments financed or leased by foreign interests. Most legal experts believe that the U.S. Constitution’s Emoluments Clause, barring federal officials from accepting gifts or benefits from foreign governments, applies to the President. But how will the Attorney General interpret it? Sessions will need to advise Trump early on about this thorny problem.
- Trump will be in violation of his lease with the GSA for the old Post Office Pavilion hotel development in DC from day one, and he gets to appoint the head of the GSA. The contract states that: “No … elected official of the Government of the United States … shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom…” Will Sessions advise the President that he needs to sell the hotel, or dance on a pin and find a legalistic loophole? (The hotel, just down Pennsylvania Avenue from the White House, raises other influence issues, as foreign delegations and domestic groups line up to reserve space there in order to curry favor with the leader of the free world.)
- The DOJ is in the midst of settlement talks with Deutsche Bank, one of the Trump Organization’s biggest creditors. How the department handles the case could have a significant impact on Trump’s business, and raise questions about whether enforcement decisions are influenced by the terms on the $364 million the Trump Organization owes the bank.
- Trump will be appointing an IRS Commissioner at the very same time that he is being audited and his foundation has admitted self-dealing on its 2015 tax filings. Any findings of criminal violations would be referred to the DOJ’s Tax Division.
- There are FEC complaints against Trump’s campaign for coordinating with super PACs and accepting foreign contributions, as well as an FEC request for Trump to resolve $1.3 million in contributions in violation of the legal limits. Issues may also arise around Trump’s use of corporate resources for his campaign, or preferential payments by his campaign to his corporation. Trump will get to appoint new FEC commissioners, and criminal violations are referred to the DOJ for prosecution.
That’s just a partial list. There are many more conflicts that will likely arise in the course of a Trump Administration:
- The STOCK Act bars the president, or any other executive branch employee, from using “nonpublic information derived from [or acquired through] their position as an executive branch employee as a means for making a private profit.” The Office of Government Ethics can make findings of a violation, but any enforcement of criminal violations will be up the DOJ.
- The DOJ and SEC are charged with enforcement of the Foreign Corrupt Practices Act (FCPA), which prohibits bribery of foreign governments by corporations, but Trump has called the FCPA a “terrible law” that should be changed.
- There are 75 pending lawsuits against Trump, which could raise conflicts with judicial appointments, and Sessions as AG will be responsible for advising Trump on nominations.
- The Federal Trade Commission fined Trump $750,000 in 1987 for antitrust violations. Will the FTC and DOJ enforce the law if Trump’s corporate empire runs afoul of the law again?
- Trump has run afoul of the nation’s labor laws multiple times, thinks the minimum wage is too high, and has nominated a fast-food CEO opposed to increasing it to run the Labor Department. Just days before the November election, the National Labor Relations Board ruled that Trump had illegally refused to bargain with workers at his Las Vegas hotel. If Trump’s corporation violates wage and hour laws while he is President, will Labor and the DOJ take enforcement action?
Abuses of Power
Given Trump’s thin skin, temper, and extreme statements on (and after) the campaign trail, conflicts of interest won’t be the only challenge facing Sessions as AG. There is a major risk that a President Trump will abuse the power of his office to punish his enemies and disfavored press, or misuse government powers in violation of civil liberties. Sessions will also have to advise the president on the legality, or lack thereof, of establishing a registry for anyone of Muslim faith, domestic surveillance of government critics, and the use of torture.
Trump’s treatment of Boeing provides a good example. Less than half an hour after Boeing’s CEO published a column critical of Trump, Trump went up on Twitter to call for cancellation of the company’s Air Force One contract. One day earlier, Boeing ponied up $1 million for Trump’s inauguration. What if the pledge came one day later, or if Boeing made another move financially benefitting the Trump Organization and then Trump dropped his objection to the contract?
Will Sessions appoint a special prosecutor when that happens or look the other way?
Either way, pressure on Sessions will likely be intense and post-Watergate reforms intended to ensure prosecutorial independence after President Nixon’s “Saturday Night Massacre” have been watered down, handing the final say on such matters back to the Attorney General.
As if Trump’s conflicts weren’t enough, the president-elect is packing his cabinet with billionaires who come with their own suitcases full of financial conflicts.
Trump’s pick for Secretary of State, ExxonMobil CEO Chairman Rex Tillerson, provides a prime example. Exxon signed a $300 billion deal with Rosneft, a Russian state-controlled oil company, to drill under the Arctic Ocean that was suspended by U.S. sanctions after Russia invaded the Crimea. The conflicts of interest are obvious—and enormous—if Tillerson as Secretary of State negotiates or advocates for the lifting of those sanctions.
Sessions, as Attorney General, would be responsible for overseeing the enforcement of multiple governmental ethics and anti-corruption laws, including the Ethics in Government Act, anti-bribery laws, the Foreign Corrupt Practices Act, and more.
Spotlight on Sessions
Reince Priebus, the incoming White House Chief of Staff, assured the public that Trump’s conflicts will be managed by Trump’s pick as White House Counsel, Don McGahn, but that’s cold comfort.
McGahn acted as apologist-in-chief for Rep. Tom DeLay as his lawyer during the congressman’s Abramoff and corporate money-laundering scandals and showed precious little respect for anti-corruption laws while serving as a member of the Federal Elections Commission (FEC). “I’m not enforcing the law as Congress passed it,” McGahn infamously stated in 2011, when accused of blocking enforcement at the FEC. “I plead guilty as charged.”
Without any meaningful check on conflicts of interest and abuse of power inside the White House, Sessions will bear the ultimate responsibility of signing off on whatever steps Trump takes or insisting on additional measures.
When the swamp is in the White House, not just around it, it’s a lot to expect a close Trump ally like Jeff Sessions to be the one to pull the plug.
Trump’s Failure to Act on Conflicts
Trump originally told the public that he would announce his decision about how he will address conflicts of interest involving his business holdings on December 15, but has now postponed that disclosure to January, just before his inauguration (and after the Electoral College convenes). Senators cannot responsibly conduct a confirmation hearing for Sessions to ask questions about how he would handle Trump’s conflicts as AG and evaluate his response until after that disclosure takes place. At the very least, hearings and a vote on Sessions’ nomination should not take place until then.
This article was written by Arn Pearson in his capacity as Senior Fellow at People for the American Way and first published in Salon.