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Friday, 13 January 2017 11:48

Professor: Trump's conflict of interest protection depends on our blind trust of family, advisors

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trump blind trustOne of the most controversial issues that have emerged since Donald Trump won the November 11 election against Hillary Clinton is his alleged business conflicts of Interest.

Trump has the largest worldwide collection of business interests of any President-elect, in history.  Some experts believe that Trump will be in conflict, “on day one”, as soon as he is sworn into office.  Others feel Trump has separated himself conflicts with the assistance of a very respected law firm.


In short, Trump’s attorneys have prepared trust agreements that would turn over the management control of Trump organization to his two adult sons, Donald and Eric Trump.

On Thursday, Bayoubuzz publisher (and attorney) Stephen Sabludowsky discussed the arrangement with a constitutional law professor, Dr. Mark Kende of Drake University.  The interview was via Facebook Live.

Prior to Trump's press conference, Kende had opined on the issue “Why it May Be Illegal For President-Elect Trump to Take The Oath”.  That opinion is published by the American Constitution Society for Law and Politics.  Dr.  Kende is the James Madison Chair Professor of Constitutional Law and Director of the Drake University Constitutional Law Center.

Dr. Kende has also been interviewed on the issue by the Nightly Business Report (produced by CNBC).

Above is the video of part one of the Bayoubuzz interview with Law Professor Mark Kende. Below is the narrative of the interview:

"The bottom line is-that's a good start but it leaves a variety of problems and doesn't fit to what is considered to be the best way of doing things which would be a fully blind trust independent of his family or, more extreme, selling his assets, but certainly a fully blind trust independent of his family would have been feasible and would be a better way of doing things and would certainly help diminish the conflict of interest appearance.

Asked if the arrangement is a real blind trust, Dr. Kende responded "It's not totally blind in that he will, I believe, he will be given information regarding some of the results of how the funds or businesses are going, in that sense, it is not totally blind.  But the traditional blind trust in this context has--still had that aspect to it but the people running it have not been such close relatives and political advisers to the president or to the official involved" 

Sabludowsky asked whether the arrangement involves "blind faith on our part" since Americans don't have any control over whether the parties involved actually have conversations about relevant business issues.  Sabludowsky further stated that his daughter and son-in-law are going to be in his administration, "they're not prohibited, am I correct", with communicating with the sons about the business? 

 "That's correct, since it's really not a blind trust, they could draft some language, they could add something about the daughter and son-in-law if they wanted to, but everything looks more problematic, given the close relationship within the family particularly it seems with regard to political decision-making.  I mean, they refer to themselves as a team, I think, or used words like that frequently, so, it's not really a fully blind trust  and it's possible that people close to the president could get information, such as his daughter, and it's possible the president could although I don't know, if we believe the president-elect, he said he's not going to have any decision-making capability with regards to what goes on. " 

One of the protections being placed into the trust system is the hiring of two ethics advisors or guardians--one in the administration and one in his company.  Sabludowsky asked who chooses those people, "obviously, the implication is if you chose them, you can fire them, that means you control them". 

Dr. Kende said "Yes, that's one of the more troubling aspects of this, besides the failure to distance himself in turns of who's running the blind trust--he's picking the ethics advisors. You know, we went through a scandal and I am not saying this is the same thing at all, I want to make that clear, but when we went through the Watergate scandal, it was thought we needed afterwards to have an independent counsel, ethics advisor and certainly the person who might be investigated was not in charge of picking who that person would be, and so, that's one of the more troubling aspects of this that doesn't make sense, and does not remove the conflicts by any means, at all. " 

Sabludowsky then said, "However, Trump and others claim he does not have a conflict of interest, by law, that the law does not apply to the vice president and president and that Trump said "it's a nice thing to have". 

Dr. Kende responded after chuckling, that Trump "makes that argument, and he's technically correct, that some of these federal laws do not apply, but I guess I respond in two ways, first, you want your president to give the nation the confidence that the first thing he has on his mind is the national interest and not his personal and financial interest or business and this does not suffice to provide us with that confidence and secondly, there is a clause  in the Constitution called the emoluments clause that some very good scholars have said is not sufficiently taken care of here which prevents essentially, officials from taking gifts from foreign governments.   It's debatable as to whether it applies to the president but I think the much better view is--of course it applies to the president because he would be the person--he would be the person you would be most concerned  being influenced at all by a foreign government” and the setup of the company is such that there's still a lot of transactions that are going to occur with foreign entities and you know so there is a constitutional provision that probably governs this and that, therefore, to say there's no law that sort of restrict him would be going too far given that constitutional provision, in my view". 

Part 2 Monday


Last modified on Friday, 13 January 2017 12:55