McGinnis points out that:
One of the best disruptions of Donald Trump has been his decision to nominate many officials to the Cabinet who have been enormously successful in business. Such appointees have run major organizations and thus can use their substantial management experience to impose order on the sprawling government bureaucracy. They also bring the perspective of business into the heart of government. A commercial republic can thrive only if, from time to time, officials set about lifting off the dead weights that democratic practices tend to place on the economy.
It is thus disheartening, if not surprising, that many Democrats in the Senate now want to eliminate most of the tax law that facilitates the transition of business people to government. This law permits appointees to an administration to defer their capital gains on the stock they must sell to avoid conflict of interest. It thus encourages wealthy individuals to take government posts, because otherwise they would face an unpalatable choice: Pay a huge capital gains bill or hold on to stock that would create conflicts of interest in their new positions. The legislation greatly aids in eliminating conflicts of interest, because in exchange for the tax deferral, appointees must put their money in treasuries or index funds.
Thus, it is not an interest in good government, but in insular government that is behind the push to change this law.
It's basically a reverse John Galt move: the party of big government trying to ensure that only career government and K Street types can afford to do public service. Go read the whole thing.
I recommend reading the whole thing, but here's the money quote:
The President-Elect and his lawyers at Morgan Lewis have released a plan that purports to address the conflicts of interest arising out of his various business ventures (hereinafter “the Plan”). Although I believe that the Plan does not go nearly far enough, I view it as a step in the right direction. Others are far lesssanguine.
The full Plan can be found here. ...
The Morgan Lewis plan for managing the President-Elect’s conflicts is not perfect. Indeed, there is unlikely to be a perfect plan. However, those concerned about Trump’s numerous business conflicts would be well served to suggest concrete improvements rather than continuing to insist on divestment, which poses its own ethical challenges.
The Street reports that:
Trump plans to turn control of his companies over to his two eldest sons, Donald Jr. and Eric, on Wednesday pointing to piles of papers on the stage next to him he said are among the "many documents" he has signed in completing the process.
Sheri Dillon, the lead attorney hired by Trump to help advise him on his financial conflicts of interests, discussed the steps to be taken.
The Trump Organization, she said, will be conveyed to a trust prior to the inauguration to be overseen by the Trump sons and longtime Trump executive, Alan Weisselberg. Trump's daughter, Ivanka, will leave the business and move to Washington, D.C. with her husband, Jared Kushner, who it was announced will join the Trump administration earlier this week.
No new foreign deals will be made during Trump's presidency, and the firm will bring onboard an ethics adviser who will consult and approve on any new domestic agreements. Dillon said the Trump Organization has already terminated more than 30 pending deals since his election, resulting in "an immediate financial loss of millions of dollars" for Trump and his children. The firm will also enlist a Chief Compliance Officer to ensure ethical operations.
"He will only know of a deal if he reads it in the paper or sees it on TV," Dillon said.
Trump will limit his information rights and receive reports only to reflect profit and loss on the company as a whole.
All of which sounds a lot like the ethics wall I suggested Trump build. This won't satisfy the ethics experts whose severe case of Trump derangement syndrome leads them to insist upon divestment, but there are good reasons for Trump not to divest:
On Jan. 10, Senator Jeff Sessions is scheduled to appear before the Senate Judiciary Committee to present his qualifications to replace Loretta Lynch as Attorney-General of the United States. In anticipation of his hearing, over 1300 law professors have signed onto a statement to the Chairman and Ranking Member of the Committee, which urges them to reject President-Elect Trump’s nomination of Sessions.
Krauss, of course, is a professor of legal ethics and he thinks the 1300 are way out of line:
Character assassination is so unworthy of our profession – what an awful example to set for the budding lawyers who are our students! The ABA Model Rules of Professional Conduct prohibit “conduct that is prejudicial to the administration of justice.” I contend that the law professors’ statement, which condemns Attorney General nominee Jeff Sessions based on irrelevancies and innuendoes, is just that.
Go read the whole thing.
If you believe, as The Economist does, in open economies and open societies, where the free exchange of goods, capital, people and ideas is encouraged and where universal freedoms are protected from state abuse by the rule of law, then this has been a year of setbacks. ... As globalisation has become a slur, nationalism, and even authoritarianism, have flourished.
The Economist finds the root of the problem in "the loss of faith in progress. Liberals believe that change is welcome because, on the whole, it is for the better."
I object. In my view, the problem is not a loss in faith in progress: the problem is that progress is, in many respects, a false prophet.
We have been inundated by change in the first 16 years of this millennium. Disruption in finance and economics. Blisteringly fast changes in social norms and mores. New technologies disrupting established business. Radical new ideologies, most of which proselytize by the sword. The ever increasing dominance of a global elite that mocks traditional values and national loyalties. An aggressive secular humanism that derides religion. All this can be laid at the feet of what liberals call progress.
As a conservative, I do not deny that change is necessary. However, as Russell Kirk has written:
Burke’s reminder of the necessity for prudent change is in the mind of the conservative. But necessary change, conservatives argue, ought to be gradual and discriminatory, never unfixing old interests at once.
It is because our society has thrown over the faith in prudence for the cult of progress that a year like 2016 has befallen us. As Kirk observed:
When successful revolutionaries have effaced old customs, derided old conventions, and broken the continuity of social institutions—why, presently they discover the necessity of establishing fresh customs, conventions, and continuity; but that process is painful and slow; and the new social order that eventually emerges may be much inferior to the old order that radicals overthrew in their zeal for the Earthly Paradise. ...
Liberals and radicals, the conservative says, are imprudent: for they dash at their objectives without giving much heed to the risk of new abuses worse than the evils they hope to sweep away.
To cite but a single example, is not the insistence upon safe spaces on college campuses an example of how the revolutionaries are carving out new conventions to replace the old rules of free speech and association they have denigrated? And are those not proving to be abuses of the rights to freedom of thought and expression?
The cult of progress is a problem not only because it fosters change that is too sudden and thoughtless, but also because it is premised on the the ascendancy of individual reason. Burke contended that individual reason could never fully comprehend the divine intent, although we grope towards it through history, myth, fable, custom, and tradition. Of these, tradition and custom are by far the most important.
Tradition often has a hard time withstanding the assaults of individual reason. Yet, tradition—even if seemingly foolish—has extraordinary value. Indeed, respect for tradition is closely linked to the virtue of prudence. Edmund Burke echoed Plato in his assertion that prudence was the chief virtue of true statesmen. If nothing else, as 2016 has proven, the law of unintended consequences must be given its due.
While prudence justifies reliance on empirical observations about the current state of the world, it also justifies consideration of the traditions of the community. The prudent legislator respects tradition precisely because the enduring truths of what Burke aptly called “original justice” are revealed slowly, with experience, over time. As John Randolph put it, providence moves slowly, but the devil always hurries. The individual is foolish, but the species is wise. We thus turn aside from ancient usage at our peril; far better to profit from the wisdom of our forbearers.
In addition, a great virtue of tradition is that it gives us a vantage point different from today’s prevailing judgment. Individual reason in today’s moral climate too often leads to mere values, which are purely matters of personal preference, lacking the moral force to bind others. In contrast, tradition emphasizes virtue, which is backed by the sanction of an enduring moral order with real teeth. The seven cardinal virtues — justice, fortitude, prudence, temperance, faith, hope and charity — thus are not questions of personal preferences. The individual can choose not to live up to those standards, but our moral heritage treats that choice as a sin having consequences.
This last observation points to what I regard as an even greater flaw in the cult of progress; namely, the implicit assumption of human perfectibility. Many liberals--especially but not exclusively of the progressive variety--believe in the perfectibility of man and the unstoppable march of human progress.
As a conservative, I know that to be a mirage. Back to Kirk:
Human nature suffers irremediably from certain grave faults, the conservatives know. Man being imperfect, no perfect social order ever can be created. Because of human restlessness, mankind would grow rebellious under any utopian domination, and would break out once more in violent discontent—or else expire of boredom. To seek for utopia is to end in disaster, the conservative says: we are not made for perfect things. All that we reasonably can expect is a tolerably ordered, just, and free society, in which some evils, maladjustments, and suffering will continue to lurk. By proper attention to prudent reform, we may preserve and improve this tolerable order. But if the old institutional and moral safeguards of a nation are neglected, then the anarchic impulse in humankind breaks loose: “the ceremony of innocence is drowned.” The ideologues who promise the perfection of man and society have converted a great part of the twentieth-century world into a terrestrial hell.
One might reasonably add the "twenty-first century" to that final claim.
My Catholic faith reinforces my belief that a quest for human perfectibility on Earth is at best doomed to failure and, perhaps, a source of mortal sin. The church regards the vices of pride, vanity, jealousy, greed, and insatiable desires as an intrinsic part of human nature since the Fall of Man. To be sure, As Aquinas taught, we are called upon to seek evangelical perfection in which we are free of mortal sin and cultivate the love of God, but as Augustine taught "because of original sin, human beings cannot now even will finite perfection. ... The only way that progress can be made toward moral perfection and salvation is by God's grace."
The cult of progress necessarily rejects this new of the human condition. Consider this helpful analysis of Christopher Lasch's work:
Lasch saw that the most viable progressive ideology—the only one to emerge intact from the rise and fall of the modern era’s revolutionary and totalitarian regimes—was the one created by the new science of political economy in the eighteenth century. Its prophets were Bernard Mandeville, David Hume, Adam Smith—the heroes of classical liberalism, not Marxian radicalism. For Smith et al. promised not utopia but the indefinite expansion of prosperity, a lower but seemingly much more achievable goal.
Lasch’s great contribution is to show that even this more modest project requires the dramatic alteration of traditional moral valuations. For one thing, unlike the classical, Christian, and republican traditions, “the modern conception of progress depends on a positive assessment of the proliferation of wants.” Austerity and self-denial have no place in the modern, progressive conception of the good life. For “thrift and self-denial” mean nothing less, ultimately, than “economic stagnation.” Desire and appetite, on the other hand, must now carry a positive valence. Formerly condemned as potentially insatiable and therefore subject to a panoply of private, public, and religious constraints, for there to be progress desire and appetite had now to be continually stimulated. Furthermore, this progressive ideology, by proposing a world continually improving and without end, necessarily entails the institutionalization of a sense of impermanence, the sense “that nothing is certain except the imminent obsolescence of all our certainties.”
Lasch’s book attempts to highlight the most important critics of this new idea of progress while showing that the most effective criticism can be traced to the populist tradition and its preference for a rooted life centered on family, neighborhood, and church.
And therein lies Lasch's true genius, for his work anticipated and predicted what happened in 2016:
... for Lasch the populist tradition he hoped to rejuvenate was the natural home of cultural conservatives, so long as they truly wished to be associated with “a respect for limits, localism, a work ethic as opposed to a consumerist ethic, a rejection of unlimited economic growth, and a certain skepticism about the ideology of progress.”
So unlike The Economist, I don't see 2017 as a year in which the goal should be to restore faith in progress. Instead, 2017 needs to be a year in which we grope towards a reconciliation of capitalism, cultural conservatism, and populism and the fusion from those elements of a new politics and culture that puts people first.
Some will say these are odd thoughts coming from someone who has spent his professional life understanding and defending corporations. Especially someone who is profoundly skeptical of corporate social responsibility.
Yet, my praise has always been directed to the form and not to the people who run specific corporations. I firmly believe that the corporation is a force for good and liberty--when it is in the right hands.
Unfortunately, we have seen an awful lot of wild pitches lately. So much so that to speak of virtue and corporations in the same breath seems hopelessly naïve. Consider the high profile corporate scandals of recent years. Not since the Levine-Boesky-Milken insider trading scandal in the mid-1980s, have so many leading corporate figure taken the “perp walk” as have those implicated in the recent wave of corporate governance scandals. Anyone with more than a passing familiarity with the business news of the new millennium can rattle off the relevant names: Enron, WorldCom, ImClone, Adelphia, Tyco, and so on.
How did this happen? Here, I turn to the late Christopher Lasch. In The Revolt of the Elites, Lasch observed of the modern professional elites – from whom most corporate directors and managers are drawn – that their “attitude to religion ranges from indifference to active hostility.” Rather than faith, “[a] skeptical, iconoclastic state of mind is one of the distinguishing characteristics of the knowledge classes.”
In other words, they embraced the cult of progressivism.
This changing mindset must bear a substantial share of the blame for the sorry state of Corporate America. Virtue is an adaptive response to the instinctive human recognition of (and need for) a transcendent moral order codified in a body of natural law. People are most likely to act virtuously when they believe in an external power, higher and more permanent than the state, who is aware of their shortcomings and will punish them in the next life even if they escape retribution in this life.
Put another way, economic actors do not function in a vacuum. To the contrary, modern corporate capitalism necessarily rests on a moral foundation. Morality's primary purpose, said Kirk, is "to order the soul and to order the human community, not to produce wealth.” As faith eroded among our corporate elites, however, the capitalists of our day lost this essential moral foundation and, with it, the instinct for honor that virtue inculcates. ...
The Church’s response to crises of corporate governance therefore should not be support for the statism of principle ethics. The nanny state is a poor substitute, at best, for the virtue inculcating power of faith and voluntary community. We may fear the faceless bureaucrat, but he does not inspire us to virtue. Conduct that rises above the lowest common moral denominator thus cannot be created by state action. But while the state cannot make its citizens virtuous, it can destroy the intermediary institutions that do inculcate virtue. Instead, the Church should concern itself with re-establishing virtue ethics in the public square. Like the social justice Prophets of the Old Testament, the Church must call our professional elites back to what Lincoln called the angels of their better nature.
My task is to think about how the law and public policy can also promote virtue ethics in the corporate square.
Here. Fortunately, of course, Trump won and Commissar Tushnet will not be running reeducation camps anytime soon. But he's clearly just waiting for Comandante Warren.
Update: Paul Horowitz notes that Tushnet's original post argued that 'liberals should "abandon [a] defensive crouch' and take a 'hard line' in dealing with 'the losers,' complete with historical comparisons casting those 'losers' in the role of the Axis powers in World War II and the Confederacy in the Civil War." In his current post, Brother Number 1 omits the Axis metaphors but does double down on the Confederate references:
The gloaters are like Robert E. Lee preparing for the the battle at Gettysburg -- they expect to win, of course, but they're going to be surprised (I think). And of course there are going to be continued skirmishes -- like guerilla warfare after Appomattox -- some of which we might lose.
Well, if he can dish it out....
The campaign waged by Mr Lessig and others encouraged electors to think for themselves rather than feel bound to represent the winning candidate in their states. ...
Once the electoral college is untethered from its traditional role as rubber stamp of the state results, there is no way to pin back its power. Mr Lessig and his political allies may not view elections to come as appropriate times for electors to rebel, and they may have excellent reasons for electors to stay even-tempered and dutiful in those contests. But other voices may drown out the law professors’ carefully reasoned appeals. And once the principle is established that electors are self-justifying sources of their own political scruples, the question of when to revolt no longer lies in commentators’ hands. Whether to ratify or to rebel becomes the province of the individual elector. And while it will remain highly unlikely, for various reasons, that dozens of electors will flip their votes in any particular election, the 2016 experience shows that a half-dozen or so is a live possibility, and a concerted effort could easily attract more.
That tantalising fact makes it much more likely that future close elections will be an exercise in elector-courting. With a budding electoral vote split of 273-265, for example, just four electors would need to be persuaded to abandon the winning candidate to throw the election to the loser, or, at least, to the whims of the House of Representatives. Imagine a scenario in which Donald Trump is about to lose to, say, Elizabeth Warren by such a gap in 2020. Would he quietly back down, accepting his fate as a one-term president? Or would he send his negotiators on a tour of America, focusing on states that do not punish electors for straying, and find three malleable souls willing to reconsider and give him another chance?
I worry more about what would happen if Liz Warren were about to lose to Donald Trump by such a margin, although YMMV. In either case, the prospect is unsettling.
The Manhattan Institute is putting out some great ideas for the incoming Donald Trump administration, which include a discussion of interest to the readers of the blog:
I STONGLY support both of these recommendations.
Back on May 6th on Balkinization, Harvard law professor Mark Tushnet had some advice for “liberals” entitled: Abandoning Defensive Crouch Liberal Constitutionalism. It provides a useful road map to what Democrats had in store for us had Hillary Clinton been elected. But it also serves as a guide to what a conservative Court should–and should not–be doing now that this constitutional bullet has been dodged. So let’s see what Tushnet had to say:
Several generations of law students and their teachers grew up with federal courts dominated by conservatives. Not surprisingly, they found themselves wandering in the wilderness, looking for any sign of hope. The result: Defensive-crouch constitutionalism, with every liberal position asserted nervously, its proponents looking over their shoulders for retaliation by conservatives (in its elevated forms, fear of a backlash against aggressively liberal positions).
I am not sure what “retaliation” he had in mind here. In law schools where there are, at best, a single right-of-center public law professor on the faculty? ...
As Tushnet helpfully previewed, had Clinton been elected, thirty years of “conservative” tinkering-at-the-margin was going to be swept away and much, much more. No doctrine of stare decisis or “precedent” would have stood in the way. The left side of the Court has never conceded the precedential value of the past 30 years of “conservative” decisions. In constitutional law, the doctrine of stare decisis is a ratchet and ratchets only go one way, and that way is towards increased national power, and delegation to the Administrative-Executive State–qualified only by judicially-selected “fundamental rights” and protected “suspect classes.” ...
It is high time for conservative justices to follow Tushnet’s advice for progressive judges and reconsider cases they know full well to be in conflict with the Constitution’s original scheme (as amended).
Go read the whole thing.
I, like many, am very concerned that the President-Elect's business interests will interfere with the performance of his duties as President. While Trump may sincerely believe that the conflicts of interests posed by his sprawling business empire can be managed by, for example, allowing his children to run his company, virtually every decision involving a foreign nation in which he has investments will inevitably be subject to skepticism, undermining faith in the Presidency and the government as a whole. This is to say nothing of the matters that the Trump Organization currently has pending before the NLRB and other agencies.
Nevertheless, I respectfully disagree with Richard Painter and others who have argued that total divestment is the only solution to Trump's very serious conflicts. Indeed, divestment would hardly eliminate the conflicts and could even make them worse.
Divestiture or liquidation of one's assets, followed by transferring the proceeds to a blind trust, is the appropriate recourse for individuals whose wealth consists largely of liquid assets such as stock. For example, former Treasury Secretary and Goldman Sachs banker Hank Paulson liquidated his Goldman stock prior to joining the government. Of course, the mere fact that Paulson divested his Goldman holdings hardly ensures that he did not favor Goldman's interests while serving in the Treasury. Lost in all of the discussion of Trump's financial conflicts is that relational conflicts - which are ubiquitous in government circles - can be just as serious.
Let's assume that Trump does indeed decide to liquidate his substantial holdings. Three things are certain. 1) As Professor Bainbridge has argued, divesting from a business empire like Trump's will necessitate a lengthy process that likely cannot be completed within the course of a few months and without significant displacement of employees. 2) Some assets and holdings likely cannot be divested at all because of transfer restrictions and alike in membership / joint venture agreements whereas for those assets that are sold, Trump can likely avoid paying hundreds of million dollars in taxes by obtaining a certificate of divestiture. 3) Among the bidders for Trump assets will be foreign entities, including foreign government-owned entitities. On this last point, were one inclined to try to curry favor with Trump, paying above market price for one of his hotels would probably a better strategy than planning a holiday party at one of those same hotels. ...
Rather than pushing for total divestment, which Trump has heretofore resisted and would not eliminate his conflicts of interest, an alternative approach would be for Trump to provide a full accounting of his holdings and to transfer all of his interests (and those of his family) into a voting trust to be managed by an unaffiliated and walled-off third party.
Where we disagree is that I don't think an independent voting trustee is necessary (I also don't think it's something Trump would agree to do). See my earlier post, which proposed that:
In Trump's case, this means:
In addition, Walter Olson addresses the issue and concludes that "Congress will affirmatively need to 'decide what it is willing to live with in the way of Trump conflicts'—and it should draw those lines before the fact, not after."
Walter argues that even if Trump adopts my proposal, problems would remain under the Emoluments Clause:
... especially those surrounding favorable treatment that a presidentially owned business may not have sought out but which may nonetheless constitute “presents.” Congress should expect to ramp up the expertise it can apply to these problems, and (absent divestiture) assign ongoing committee responsibility to tracking them. And it should issue clear guidelines as to what it is willing and not willing to approve. Such a policy will not only signal that lawmakers are taking their constitutional responsibilities seriously, but could also benefit the Trump Organization itself by clarifying how it needs to respond if and when foreign officials begin acting with otherwise inexplicable solicitude toward its interests.
I will freely confess that I have trouble enough spelling emoluments, let alone saying anything meaningful about what it requires, but even just as a purely prudential matter I think it would be useful for Congress to put its imprimatur on whatever plan Trump comes up.
There is a corporate law analogy here to situations under Delaware General Corporation Law section 144 in which approval of a conflict of interest by independent directors or shareholders cleanses the conflict (technically it transfers the burden of proof to the plaintiff to show waste).
There is also an analogy to Sarbanes-Oxley section 406 and the rules thereunder, which impose a comply or explain obligation with respect to adoption by a corporation of "a code of ethics for its principal executive officer, principal financial officer, principal accounting officer or controllers, or persons performing similar functions.  The SEC defines a code of ethics as written standards that are reasonably designed to deter wrongdoing and to promote: 1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships; 2) full, fair, accurate, timely and understandable disclosure in reports and documents that a registrant files with, or submits to, the SEC and in other public communications made by the issuer; 3) compliance with applicable governmental laws, rules and regulations; 4) the prompt internal reporting to an appropriate person or persons identified in the code of violations of the code; and 5) accountability for adherence to the code."
From First Things:
The left thought they were riding a demographic wave that would render their political opponents not merely irrelevant, but helpless. And if, at some point in the future, the political tides brought conservatives into elected office, a compact and aggressively liberal Supreme Court majority would make sure that while liberals might lose elections, they would never really lose power.
And oh, the things they planned to do with that power! Mark Tushnet reflected on the death of Antonin Scalia, together with the presumptive election of Hillary Clinton, and argued that, legally, the culture wars were over and conservatives had lost. He argued for a “hard line” against conservatives, similar to the occupations of the Reconstruction-era South and post-WWII Germany and Japan. He wrote that liberal judges and activist groups should have no concern for conservative objections, which “liberals regard as having no normative pull at all.”
Tushnet’s argument puts Hillary Clinton’s infamous “basket of deplorables” speech in a different light. Clinton not only demonized approximately one-quarter of the electorate as racist, sexist, xenophobic, homophobic, and Islamophobic—she also called them “irredeemable.” Even Clinton’s exception for “half” of Trump’s supporters as merely misled carried an implied warning. Get right with her and her coalition after the election—or else hold onto your unauthorized ideas and get social justice, good and hard.
The dream of a Clinton presidency and liberal Supreme Court has turned into a nightmare. The hope that America might become one big college campus where dissenters could be shouted down with the connivance of the administration has been inverted. The weapons liberals sharpened now look likely to be turned upon the left.
President-Elect Donald Trump has a unique and difficult problem. Most recent Presidents have come to the office after years of government service with assets that consist mostly of real estate, stocks, bonds, etc... They have not had a distinct business empire of the sort Trump has built.
Many people are calling on Trump to divest his business, including the WSJ editorial board:
Mr. Trump’s best option is to liquidate his stake in the company. Richard Painter and Norman Eisen, ethics lawyers for George W. Bush and President Obama, respectively, have laid out a plan, which involves a leveraged buyout or an initial public offering.
Mr. Trump could put the cash proceeds in a true blind trust. The Trump children can keep the assets in their name, and he can transfer more to them as long as he pays a hefty gift tax. Finally, Mr. Trump should stipulate that he and his children will have no communication about family business matters.
The alternatives are fraught, perhaps even for the Trump Organization’s bottom line: Thanks to a Clinton Administration precedent, Presidents can face litigation in private matters—so the company will become a supermagnet for lawsuits. Rudy Giulianilamented on television that divestment would put the Trump children “out of work,” but reorganizing the company may be better for business than unending scrutiny from the press. Progressive groups will soon be out of power and they are already shouting that the Trump family wants to profit from the Presidency.
The political damage to a new Administration could be extensive. If Mr. Trump doesn’t liquidate, he will be accused of a pecuniary motive any time he takes a policy position. For example, the House and Senate are eager to consider tax reform—and one sticking point will be the treatment of real estate, which will be of great interest to the Trump family business. Ditto for repealing the Dodd-Frank financial law, interest rates and so much more.
But I suspect PEOTUS Trump will continue to resist doing so. For one thing, divesting a business as complex as Trump's is not something one can do in a hurry. As a leading guide to corporate divestitures explains, this is a lengthy, complex, and fraught process:
Second, Trump has a perfectly legitimate desire to pass his business on to his children. Requiring him to divest would deny him the ability to do so. It would also set an unfortunate precedent that would discourage business men and women from seeking office in the future, creating even greater dominance of government by a permanent political class that cycles from government jobs, to public office, to lobbyist firms, and over again.
Third, Trump is stubborn and likes to tweet his enemies (NB: I meant tweak, but tweet was a happy accident so I'm leaving it). There will be a strong temptation for him to keep his business just to give the finger to progressives. So a plan devised by Painter--who supported Hillary in the last election and vilified Trump in op-eds--and ex-Obama aide Eisen is probably going to be rejected just because of who's behind it.
At the same time, however, it is clear that Trump's business empire is a fertile source of conflicts of interest. There will be many cases--trumped up (pun intended) or not--where he will be accused of creating pay to play scenarios. And so on.
There is an alternative. It's not ideal, but it would reduce the potential for conflicts of interest and enable Trump to pass his business on to his kids.
First, he needs to take a hard look at his sprawling empire and identify the core pieces--the family jewels, if you will--that he wants to pass on. The non-essential rest should be sold off and the proceeds put into a blind trust.
Second, he needs to create an insulation wall separating his political activities from those of the organization. Such walls were formerly known in colloquial legal speech as “Chinese walls.” As a California appellate judge aptly noted, however:
“Chinese Wall” is [a] piece of legal flotsam that should be emphatically abandoned. The term has an ethnic focus that many would consider a subtle form of linguistic discrimination. Certainly, the continued use of the term would be insensitive to the ethnic identity of the many persons of Chinese descent. . . .
Aside from this discriminatory flavor, the term “Chinese Wall” is being used to describe a barrier of silence and secrecy. . . . [But] “Chinese Wall” is not even an architecturally accurate metaphor for the barrier to communication created to preserve confidentiality. Such a barrier functions as a hermetic seal to prevent two-way communication between two groups. The Great Wall of China, on the other hand, was only a one-way barrier. It was built to keep outsiders out—not to keep insiders in.
In law firms, terms such as “ethical wall” or “ethical screen” are emerging as alternatives. In the present context, however, the term “insulation wall” seems superior. First, it does not connote the professional responsibility aspects associated with the ethical wall terminology. Second, it provides a more exact “architecturally accurate metaphor” than does ethical wall.
Key features of such a wall typically include organizational and physical separation of persons with access to information especially likely to be abused from persons who do not need such access. Prohibitions against and penalties for discussing confidential matters with unauthorized personnel or in locations where such discussions could be overheard are also an important part of the insulation wall. Likewise, procedures for preventing unapproved personnel from accessing confidential information and files, delinking approved personnel compensation from trading profits and regular training of personnel on their legal and commercial responsibilities.
In Trump's case, this means:
Washington is full of power couples that have faced conflicts of interest (Diane Feinstein springs to mind). The press has allowed them to work out reasonable solutions. People ought to give Trump a chance to create an ethics wall that will separate his family's business interests from his new position as POTUS.
Oh by the way, releasing his tax returns--at least on a going forward bass once he enters office--would be a good place to start.