Trump’s conflicts of interest are unprecedented and unconstitutional

U.S. President elect Donald Trump reacts to a crowd gathered in the lobby of the New York Times building after a meeting in New York

What we’re seeing in the Trump transition are numerous conflicts of interest that are unprecedented in U.S. history, and potentially violate the Emoluments Clause of the U.S. Constitution, Elaine Kamarck explained in a Brookings podcast.

Transitions are a complex business even without involving actions that will land the new administration in court.

Having worked for the Clinton campaign and then in the White House for Al Gore, Kamarck recalled the exhilaration, and the exhaustion, of being on the winning transition team. Although the win is an extraordinarily happy event, “then comes a period of real turmoil and uncertainty.”

More recently, she explains, transitions have been made more complicated than they need to be, and that there’s really one thing to accomplish: positioning “personnel in key places.” If the Trump transition team can accomplish that, and then begin to think about what their first priorities will be when they take office (which executive orders to issue, and which to repeal), they will have completed the most important transition work.

And when Trump’s team starts meeting with federal agencies, the deluge of information will begin. For instance, Health and Human Services staff will surely brief them on who’s covered by the Affordable Care Act and what the scenarios are for a repeal. Reality, Kamarck says, “will hit the campaign in the face,” like it does for every president-elect.

What distinguishes this transition from all others, however, is an unprecedented amount of conflicts of interest. The first set involves Trump’s family business. Foreign media photographed Ivanka Trump sitting in on a meeting with the Prime Minister of Japan, and President-Elect Trump has met with Indian and British officials regarding the Trump Organization’s interests. Kamarck points out that during the campaign, Donald Trump made the Clinton Foundation a major issue and accused Hillary Clinton of using her office as Secretary of State to further its goals. “If that was a problem,” she says, “then using the office of the presidency for the perpetuation of your business interests—hotels in India, for instance…is a little insane.” The president needs to withdraw completely from his businesses, and withdraw his children: “This is unprecedented, this is trouble, and this is unconstitutional as well.”

Another set of conflicts involve members of the White House staff who also hold positions in media organizations. Stephen Bannon, appointed as Chief Strategist, cannot have any association with Breitbart News. And if Jared Kushner is appointed to any formal role, he cannot also own a newspaper. “You cannot be the editor of a news source and have a government position. You just can’t do that. And if you think you can, it will take about 30 days in office for you to see the kind of messes you get yourself into.”

Conflict of interest issues won’t go away, and the Trump team needs to clean things up, Kamarck says. Foreign media in particular will be a check on this; maybe 100 years ago it would have been possible to keep conflicts of interest quiet but that’s no longer the case. There are numerous laws that prevent federal employees from accepting money, and people must abide by them—you can see it in how people leave federal service when they start to put kids through college. The Trump administration can be no different.