JOL Online Notes

WARNing: The “Liquidating Fiduciary” Exception Should Not Exist

Jonathan C. Gordon*

 

Abstract

The Worker Adjustment and Retraining Notification Act requires employers of a sufficient size to provide sixty days’ notice to employees affected by plant closings or mass layoffs. The Department of Labor, meanwhile, said that fiduciaries that are liquidating a business do not have to comply with that notice requirement. Courts have uniformly held that such a “liquidating fiduciary” exception exists. I disagree; there is no such exception.

Using traditional tools of statutory interpretation, I submit that Congress did not mean for such an exception to apply. Thus, Congress should clarify the WARN Act and make clear that there is no exception for “liquidating fiduciaries.” Until then, however, courts should stop applying the exception.

 

Introduction

Congress passed the Worker Adjustment and Retraining Notification Act (the “WARN Act” or “WARN” or the “Act”) in 1988.[1] The Act requires certain employers to provide sixty days’ notice to employees affected by plant closings or mass layoffs.[2] The Act defines “employer” as “any business enterprise that employs—(A) 100 or more employees, excluding part-time employees; or (B) 100 or more employees who in the aggregate work at least 4,000 hours per week (exclusive of hours of overtime).”[3]

If an employer fails to give proper notice, the “employer . . . shall be liable to each aggrieved employee who suffers an employment loss as a result of such closing or layoff for” backpay and benefits.[4] That backpay is “a statutory form of severance pay.”[5] More specifically, because severance pay comes in two forms—(i) pay in lieu of termination notice and (ii) pay based on the employee’s length of service—WARN backpay is “severance pay in lieu of notice, imposed by statute.”[6] As one bankruptcy court explained:

WARN gives the employer a choice—it may provide 60 days’ notice of closing or layoff to its employees, keeping the business open and incurring operating expenses during that period; or it may shut down its operations with little or no notice to its employees, saving operating expenses, but providing back pay to its employees, in compensation for the lack of notice, in accordance with a statutory formula.[7]

The Act further requires that the Department of Labor (the “Department”) “prescribe such regulations as may be necessary to carry out” the Act.[8] In the Department’s Analysis of the Final Rule, the Department commented that a “liquidating fiduciary” does not satisfy the Act’s definition of “employer.”[9] Specifically, the Department wrote:

[A] fiduciary whose sole function in the bankruptcy process is to liquidate a failed business for the benefit of creditors does not succeed to the notice obligations of the former employer because the fiduciary is not operating a “business enterprise” in the normal commercial sense. In other situations, where the fiduciary may continue to operate the business for the benefit of creditors, the fiduciary would succeed to the WARN obligations of the employer precisely because the fiduciary continues the business in operation.[10]

A proper understanding of the “liquidating fiduciary” exception first requires a proper understanding of a liquidating fiduciary. When a business is financially distressed, it may choose to file for bankruptcy protection under the United States Bankruptcy Code. Typically, the business has two options: chapter 7 or chapter 11.[11]

If a business files under chapter 7, then a trustee is automatically appointed[12] to replace the debtor’s management and to liquidate the business.[13] Thus, the “liquidating fiduciary” exception is most applicable in chapter 7 bankruptcies—where a trustee (a fiduciary) is appointed to liquidate the business.[14]

If a business files under chapter 11, however, then a trustee is not automatically appointed.[15] Rather, the debtor’s management stays in possession of the business,[16] provided that the management does not engage in fraud or gross mismanagement.[17] As such, the debtor is called a “debtor in possession.”[18] The debtor in possession, however, has all the duties and responsibilities of a trustee.[19] Thus, just like trustees, debtors in possession are also fiduciaries.[20]

But in chapter 11, the debtor is not required to liquidate, though it may choose to do so.[21] Rather, chapter 11 permits the debtor to continue operating the business as a going concern while it restructures its debts.[22] Thus, it is not clear whether the “liquidating fiduciary” exception applies to chapter 11 debtors because the “sole function”[23] of a debtor in possession is not to liquidate.[24] Regardless, though courts dispute the proper contours of the exception, they do not dispute the exception’s existence. All the courts that have considered whether a “liquidating fiduciary” exception exists for fiduciaries in bankruptcy have uniformly answered in the affirmative.[25] Humbly, I submit that those courts have uniformly erred.

This Article proceeds in three parts. Part One examines some of the precedent on the “liquidating fiduciary” exception. Part Two presents my thesis—traditional tools of statutory interpretation prove that the WARN Act includes businesses being liquidated by fiduciaries, contrary to what courts uniformly have held. And Part Three explains that judicial deference to the Department’s interpretation is not warranted.

 

Part One: Examining the Precedent

Unfortunately, due to limited space, I cannot discuss all the cases that address the “liquidating fiduciary” exception.[26] That said, nothing in them would materially alter this discussion. Instead, I want to focus on two particular cases, In re Hanlin Group, Inc.[27] and In re United Healthcare Systems, Inc.[28]—each of which is noteworthy for a unique reason. Hanlin was the first court to determine whether a fiduciary in bankruptcy is subject to the WARN Act requirements. And United Healthcare, a decision from the Third Circuit, is the leading authority on the issue.

          I. Hanlin (Bankr. D.N.J. 1995)

Hanlin Group filed for bankruptcy protection under chapter 11 and, as a result, became a debtor in possession.[29] After filing its bankruptcy petition, Hanlin Group terminated employees without providing sixty days’ notice, as required by the WARN Act.[30] The employees’ union sought $1.2 million in damages for the layoffs.[31]

The court first looked at whether the debtor in possession was an employer under the WARN Act.[32] The court’s entire (and limited) analysis on the issue relied on the Department’s commentary.[33] The court did not refer to the statutory definition of “employer,” nor did the court consider what constitutes a “business enterprise.”[34] Rather, the court quoted the Department’s “liquidating fiduciary” exception before holding that Hanlin Group qualified as an employer because it “continued to operate the business as a whole for the benefit of all parties in interest.”[35] The court, thus, clearly adopted the exception to determine what qualifies as a WARN Act employer, even if the court found the exception inapplicable due to the specific facts.

In short, the first court to use the “liquidating fiduciary” exception to determine the status of an employer in bankruptcy, for purposes of the WARN Act, did so without an iota of statutory interpretation.

          II. United Healthcare (3d Cir. 1999)

Courts widely consider the Third Circuit’s decision in United Healthcare to be the leading authority on the issue.[36] United Healthcare featured a non-profit corporation (United Healthcare System, Inc.) in financial distress.[37] Because of its financial troubles, United Healthcare did the following:

• United Healthcare’s board voted to sell the company’s assets and shut down the hospital.[38] As part of the shut down, the hospital surrendered its certificates of need to the New Jersey Department of Health and advised the department that it was closing.[39]
• The hospital then voluntarily filed for chapter 11 bankruptcy relief.[40]
• On the same day as its bankruptcy petition, the hospital, pursuant to the WARN Act, gave 60 days’ notice of termination to its approximately 1,300 employees.[41] The notice stated that the employees should continue reporting to work until the termination date (60 days).[42]
• Because the hospital no longer had patients, however, employees did not perform their regular duties.[43] Rather, they “cleaned, took inventory and prepared the company’s assets for sale.”[44]
• Within a month after the bankruptcy petition, the Official Committee of Unsecured Creditors of United Healthcare System (the “Committee”) asked the bankruptcy court “to order United Healthcare to terminate all employees immediately.”[45]
• Before the court ruled on the Committee’s motion, United Healthcare dismissed 1,200 employees, forty-four days before the termination date.[46]

United Healthcare and the Committee then disputed whether these 1,200 employees were entitled to WARN Act back pay for the remaining forty-four days of the notice period.[47] The hospital believed that it did owe the employees for the back pay, but the Committee argued otherwise.[48] The Committee believed that United Healthcare was no longer a WARN Act “employer” because the hospital had surrendered its certificates of need with the aim to liquidate.[49]

The bankruptcy court, guided by the Department’s commentary, agreed with the hospital.[50] Because the hospital was still operating the business for the benefit of creditors,[51] the court held that the hospital’s employees were entitled to WARN Act back pay for the early termination.[52] The district court affirmed.[53] On appeal, the Third Circuit faced one question: “whether the [lower courts] correctly concluded United Healthcare continued as an ‘employer’ within the meaning of the WARN Act after filing for Chapter 11 bankruptcy . . . .”[54]

The court first turned to the Act’s definition of employer.[55] But the court found the definition “general and not especially helpful in determining whether a particular employer is subject to WARN.”[56] Nonetheless, the court pulled two requirements out of the definition: an employer (1) must employ a certain number of employees and (2) must be a “business enterprise,” which the court noted is not defined by the Act.[57] The court found that United Healthcare clearly met the first requirement, but it was less clear that United Healthcare remained a business enterprise.[58] The court pointed to the hospital’s contrasting activities. On one hand, the company had

surrendered its certificates of need, stopped treating patients, and entered bankruptcy to liquidate its assets. Each of these events precluded United Healthcare from performing the everyday business functions of a hospital and health care service. On the other hand, despite those events, United Healthcare remained a corporation that employed for sixteen days a substantial number of employees to whom it assigned various tasks all related to shutting down its operations.[59]

Because of this perceived ambiguity,[60] and because the term “business enterprise” had no statutory definition, the court quickly turned to the Department’s commentary for guidance.[61] The court found the commentary persuasive and adopted the Department’s “liquidating fiduciary” exception.[62] The relevant test, thus, was whether United Healthcare had continued “operating its business as a going concern.”[63]

The court’s initial finding of ambiguity, however, seems to rest on the assumption that a business enterprise is one performing “everyday business functions.”[64] This assumption is wrong.[65] Had the court interpreted the term “business enterprise,” instead of quickly turning to the Department, it would have found that the term does not require “everyday business functions.”[66] Rather, it would have found that the term’s meaning is clear.[67]

***

A common theme runs through the two above cases. Neither interpreted the statute to determine what constitutes a WARN employer. Hanlin does not refer to the statutory definition and gives no thought to what constitutes a “business enterprise.”[68] And while United Healthcare at least looked at the definition of “employer,” the court then assumed that a business enterprise must be “performing everyday business functions.”[69] Other than noting that the Act did not define “business enterprise,” the court did not do any other statutory interpretation before turning to the Department’s commentary.[70]

If either of these courts (or the other courts that have uniformly adopted the exception)[71] had more rigorously applied the traditional tools of statutory interpretation to the statute—rather than turning quickly to the Department’s commentary—they would have found that the WARN Act unambiguously includes businesses being liquidated by a fiduciary.

 

Part Two: Statutory Interpretation

Because the WARN Act defines “employer” to be “any business enterprise that employs” a certain number of people, the issue faced is first and foremost one of statutory interpretation—what does the term “business enterprise” mean under section 2101(a)(1) of the WARN Act?[72]  More specifically, does it include a business that is being liquidated by a fiduciary? Based on traditional tools of statutory interpretation,[73] the answer should be yes. Irrespective of the Department’s guidance, the Act’s text should control because of the Act’s (i) plain language, (ii) structure, (iii) legislative evidence, and (iv) purpose.

          I. Plain Language

Interpreting a statute requires first looking at the statute’s language.[74] Section 2101(a)(1) of the Act defines an employer as “any business enterprise that employs” 100 or more employees. The Act does not, however, define “business enterprise.”[75] “When Congress has not supplied a definition, [the Supreme Court] generally give[s] a statutory term its ordinary meaning.”[76] I suggest that the ordinary meaning of “business enterprise” is a business entity[77]—whether it be a large public corporation or a small private partnership. Under such an ordinary meaning, a business in bankruptcy is still a business enterprise even though it may be liquidating.

Critics of my interpretation may wonder why Congress would use redundant language; if Congress said “any business enterprise” then surely it meant something other than “any business” because Congress explicitly added another word.[78] Congress’ language, however, may be understandable as a term of art. Congress has used “business enterprise” when writing other laws[79] and has routinely referred to a “business enterprise” as a business:

• Section 1221 of title 15 defines “automobile manufacturer” as “any person, partnership, corporation, association, or other form of business enterprise . . . .”[80] Thus, the language implies that a business enterprise is defined as a business, whether it be a partnership, corporation, or association.
• Section 7108 of title 15 defines “women’s business enterprise” as “(A) a business or businesses owned by a woman or a group of women; or (B) the establishing, maintenance, or development of a business or businesses by a woman or a group of women . . . .”[81] Here, the language clearly equates “business enterprise” with “business.”
• Section 3102 of title 22 defines “business enterprise” as “any organization, association, branch, or venture which exists for profitmaking purposes or to otherwise secure economic advantage . . . .”[82] This definition is synonymous with—arguably, even broader than—a for-profit business.
• Section 1452 of title 28, in governing class action removals, excludes certain class actions that relate “to the internal affairs or governance of a corporation or other form of business enterprise . . . .”[83] A corporation, thus, is one form of a business enterprise. Other forms presumably include other business entities such as associations, partnerships, LLCs, etc.
• Section 6705 of title 42 defines “minority business enterprise” to be “a business at least 50 per centum of which is owned by minority group members . . . .”[84] Yet again, the legislature has explicitly equated “business enterprise” with “business.”
• Section 7141 of title 42 defines “minority business enterprise” to be a “firm, corporation, association, or partnership which is at least 50 percent owned . . . .”[85] A business enterprise, thus, includes corporations and other business entities.

In a similar vein, one district court, in giving jury instructions for a case on illegal gambling activity, explained that “a business enterprise usually involves a continuing course of conduct by persons associated together for a common purpose.”[86] On appeal, the Eighth Circuit found no error with the instructions.[87]

A business in liquidation could meet that definition: the business is a group of persons associated together (whether it be directors, managers, shareholders, or employees) continuously working together in a course of conduct—albeit that conduct is to further liquidation, rather than operations.[88] But even if that argument is not persuasive, a business in liquidation could still satisfy the definition of a business enterprise in United States v. Scavo.[89] Scavo only said that “a business enterprise usually involves a continuing course of conduct by persons associated together for a common purpose.”[90] So even if a debtor’s liquidation is not a continuous course of conduct, it is possible that the debtor is still a business enterprise, outside the usual universe suggested by Scavo.

Indeed, the Department itself even implied as much—that a liquidating business is still a business enterprise. The Department commented that a liquidating business is not a “‘business enterprise’ in the normal commercial sense.”[91] This language implies that a liquidating company is a business enterprise in some kind of non-normal or non-commercial sense. Likewise, the Third Circuit in United Healthcare found ambiguity because the company was not performing “everyday business functions.”[92] In making such a finding, the court implicitly limited the Act to normal, operating businesses.

The WARN Act, however, does not restrict the definition of “employer” to only functioning business enterprises of a normal or commercial sense. Nor does the Act define “employer” to be an operating business enterprise. Under either definition, the Department’s interpretation (and the Third Circuit’s analysis) would be more meritorious. The Department’s exception, however, improperly adds those qualifications to the Act’s definition. The WARN Act solely defines “employer” as “any business enterprise.”[93]

In response, the Department may argue that such qualifications (i.e., requiring that the business be operating in a normal commercial sense) are implicit—that Congress implied that a business enterprise must be operating because the prototypical business enterprise is one in operation.[94] The Act’s definition, however, does not say “a business enterprise,” which could suggest a prototypical interpretation. Rather, the definition of “employer” says “any business enterprise”[95]—regardless of whether that business is operating or liquidating. “As [the Supreme Court] ha[s] explained, ‘the word “any” has an expansive meaning, that is, “one or some indiscriminately of whatever kind.”’”[96] Courts must adhere to the WARN Act’s broad language—with its expansive meaning—and refrain from adding the Department’s restrictions.

In sum, the language of section 2101(a)(1) is clear. The term “business enterprise”—with its ordinary meaning and similar usage in other legislation—is synonymous with the term “business.”[97] And the WARN Act broadly states that “any business enterprise” (thus, “any business”) of the required size must adhere to the notice requirements.[98] Because the word “any” requires an expansive reading, it does not matter whether that business is liquidating or functioning in the normal commercial sense.[99] Holding otherwise would be adding words to the statute and legislating from the bench.

          II. Structure and Interpretative Canons

Sticking with the text, “[w]hen Congress provides exceptions in a statute, it does not follow that courts have authority to create others. The proper inference . . . is that Congress considered the issue of exceptions and, in the end, limited the statute to the ones set forth.”[100] That inference stems from the expressio unius canon of statutory interpretation: “expressing one item of [an] associated group or series excludes another left unmentioned.”[101]

Explicitly providing exceptions thus excludes unmentioned exceptions. The Act explicitly provides for three exceptions. Under the “faltering company” exception, an employer does not need to give the required notice if the employer “was actively seeking capital or business” which would have allowed the employer to avoid layoffs, and the employer believed that “giving the notice required would have precluded the employer from obtaining the needed capital or business.”[102] Under the “unforeseeable business circumstances” exception, an employer need not give the required notice if the layoffs are “caused by business circumstances that were not reasonably foreseeable” at the time notice was required.[103] Last, under the “natural disaster” exception, an employer is not required to give notice if the layoff is due to a natural disaster.[104]

Indeed, the Act’s “faltering company” exception considers financially troubled employers. The proper inference, thus, is that Congress considered how the WARN Act would affect financially troubled employers and decided not to provide another shield for bankrupt employers.  Had Congress intended a safe harbor for employers liquidating in bankruptcy, it could have done so explicitly.

Admittedly, the expressio unius canon is not absolute. It “is only a guide, whose fallibility can be shown by contrary indications”[105] to “all other textual and contextual evidence of congressional intent.”[106] Here, however, there are no contrary indications. All tools of statutory interpretation point in the same direction. The Act’s language is clear and further supported by the legislative evidence and overall purpose.

          III. Legislative Evidence

The legislative history of the WARN Act is convoluted, but the meaning of “business enterprise” is not. As discussed below, Congress meant for “business enterprise” to be “synonymous with the terms company, firm or business.”[107]

The WARN Act traces its roots to the Omnibus Trade and Competitiveness Act of 1987 (the “Omnibus Act”),[108] intended to “enhance the competitiveness of American industry.”[109] The bill did not contain any provisions related to the WARN Act, however.[110] The Senate, unhappy with the House bill, introduced a bill of amendments to the Omnibus Act.[111] Among many other changes to the House bill, the Senate amendments added a new section titled “Advanced Notification of Plant Closings and Mass Layoffs.”[112]

That section was the foundation of today’s WARN Act and defined an “employer” as “any business enterprise that employs—(A) 50 or more full-time employees; or (B) 50 or more employees who in the aggregate work at least 2,000 hours per week (exclusive of hours of overtime).”[113] That definition is the same definition found in the WARN Act, except the minimum number of required employees has been upped to 100.[114] The WARN Act, thus, started as a subsection of amendments to the Omnibus Act.

In attempts to reconcile the Omnibus Act Senate amendments with the original House bill, the two houses formed a conference and filed an agreed-upon conference report.[115] A conference report “is generally the most reliable evidence in legislative history of congressional intent because it represents the final statement of the terms agreed to by both houses.”[116] With regards to the WARN Act, the conference report “retain[ed] the Senate Amendment language that the term ‘employer’ means a business enterprise.”[117] Further, the conference report added that “‘business enterprise’ be deemed synonymous with the terms company, firm or business.”[118]

The President eventually vetoed the Omnibus Act.[119] In response, the Senate introduced the WARN Act as a separate bill, retaining the same language that “employer” means “any business enterprise.”[120] Like the Omnibus Act, the Senate’s introduced bill did not define business enterprise.[121] Within a month, the House and Senate had passed the bill.[122] And within two months, the bill became law.[123] A conference between the two houses thus was unnecessary, so there is no conference report specific to the WARN Act. As a result, and because the language of “employer” did not change, the conference report to the Omnibus Act provides the best indication of what “business enterprise” means. It means a company, firm, or business.

As discussed earlier, when Congress has used “business enterprise” in other legislation, it has statutorily defined “business enterprise” to be synonymous with those terms. The legislative evidence here, thus, proves that the WARN Act is no different and confirms the earlier textual analysis. As a result, any company, firm, or business that satisfies the defined size must adhere to the Act’s notice requirements—regardless of whether that business is liquidating or operating in a normal commercial sense.

          IV. Purpose

Last, the purpose[124] of the WARN Act is to protect employees and their families from being unexpectedly laid off.[125] By providing notice, employers give employees the opportunity to pursue other employment and relocate, if necessary.[126] Excusing fiduciaries from providing notice does not protect employees.

Consider the practical implications of the Department’s exception. Imagine a company, BigBiz. BigBiz is in financial distress. It is working with bankruptcy lawyers and is preparing to file for chapter 7 bankruptcy relief—say, on Tuesday. The company knows it will be shutting down. And so on Monday, the CEO of BigBiz contemplates terminating a substantial number of employees. After all, there is no need for them because the company is shutting down. But, the company never gave proper WARN notice, so it would face certain WARN liabilities.

On the other hand, the company realizes that the company would face no WARN liability if the employees were terminated during the bankruptcy liquidation. Under the purported “liquidating fiduciary” exception, the bankruptcy trustee would not be subject to the same notice requirements that the company’s management had a second before the bankruptcy filing.

To reiterate, if the CEO of BigBiz terminated BigBiz employees on Monday, without any notice, then BigBiz would be liable for sixty days’ back pay to those affected employees. But if BigBiz files for chapter 7 bankruptcy Tuesday morning, and the appointed trustee of BigBiz terminates the employees without any notice on Tuesday afternoon, then BigBiz has no liability. This stark dichotomy could motivate businesses to not give any notice of terminations if a liquidation is on the horizon.[127]

The WARN Act essentially gives employers a choice: (1) they can provide proper notice while continuing to operate and bear related operational expenses or (2) they can shut down without proper notice and save on operational expenses, but provide back pay to employees to compensate for the lack of notice.[128] Essentially, the optimal solution is a mathematical equation—until the “liquidating fiduciary” exception is applied. With the exception, businesses can enjoy the fruits of option two (shut down with no operational expenses) while bearing none of the costs (back pay in lieu of notice). Who, then, bears those costs? The employees. This lack of protection for employees stands strictly at odds with the purpose of the WARN Act.

One could (rightly) argue that it would be inequitable to hold a liquidating fiduciary liable when it had no prior involvement with the business and was appointed solely to sell company assets. However, and I stress this point as it seems to have become convoluted due to the Department’s language, the trustee would not be the party liable. WARN Act liability falls on the employer, the business enterprise—not its managers or executives or trustees or any other individuals.[129]

More specifically, the debtor’s bankruptcy estate would bear the costs of WARN liability because all assets and liabilities of the employer are part of an estate in bankruptcy.[130] One could then argue that it would be unfair to hold the estate (which includes creditors and other parties in interest) liable. But if that is the exception’s purpose, then there should also be an exception for companies that violate the WARN Act while operating as a going concern during bankruptcy (i.e. reorganizing rather than liquidating). When a debtor is forced to pay WARN liabilities to employees, the estate has less money available to pay creditors—regardless of whether the debtor is liquidating or reorganizing. Thus, because the Department’s exception only concerns liquidations, I doubt that the exception’s concern is that creditors are harmed indirectly. If that were true, there would also be an exception for reorganizations.

***

In addition, the WARN Act “is a remedial statute and must be construed broadly.”[131] As a result, exceptions must be “narrowly construed” and “the employer has the burden to prove the exception applies.”[132] Coupled with this high burden, the statutory analysis demonstrates that no “liquidating fiduciary” exception exists.

 

Part Three: But What About Judicial Deference?

When a court is tasked with interpreting an administrative agency’s law, and the agency has offered its interpretation, the court must determine if that interpretation is entitled to judicial deference—whether it be Chevron (strong) deference or Skidmore (weak) deference.[133]

          I. Chevron deference

Though Chevron is under attack by judges, academics, and legislators,[134] it remains good law and must be dealt with.[135] Under Chevron, deference is required when (i) a statute’s meaning is unclear and (ii) the agency’s interpretation of that statute is reasonable.[136] This Chevron framework generally applies to interpretations that are offered through notice-and-comment rulemaking.[137] But Chevron can also apply elsewhere.[138]

To determine whether the Chevron test applies to a guidance document outside notice-and-comment rulemaking—like the Department’s Analysis, at issue here—courts look at various factors: “‘the interstitial nature of the legal question, the related expertise of the Agency, the importance of the question to administration of the statute, the complexity of that administration, and the careful consideration the Agency has given the question . . . .’”[139]

Here, however, those factors do not require analysis because even if the Chevron test does apply, deference would still not be warranted. If Chevron applies, then analysis begins with the first step—is the statute’s meaning clear, as determined by “traditional tools of statutory construction”?[140] As discussed in Part Two of this Article, the WARN Act is clear and includes businesses being liquidated by fiduciaries.[141] Because the first step is answered affirmatively, the Chevron test ends.[142] The test never reaches the second step (deference).[143]

          II. Skidmore deference

Skidmore deference is weaker.[144] Unlike Chevron deference, Skidmore deference is not binding.[145] Rather, Skidmore interpretations are “entitled to respect” and can be looked upon for guidance.[146] But because the WARN Act is clear enough to overcome Chevron deference, it would also overcome the weaker Skidmore deference. Whatever respect the Department’s commentary deserves, it is not enough to overcome the WARN Act’s unambiguous language.

 

Conclusion

The WARN Act requires “any business enterprise” that meets certain size requirements to give sufficient notice to employees before a mass layoff or plant closing.[147] In its Analysis on the Final Rule, the Department of Labor purportedly created a “liquidating fiduciary” exception on the grounds that a “liquidating fiduciary” would not be operating a company in the normal commercial sense. Courts have uniformly adopted that exception.

Those courts, however, have uniformly erred. As the text, structure, legislative evidence, and purpose of the WARN Act make clear, the Act does not exempt businesses being liquidated by fiduciaries. Any business of the required size is subject to the Act’s notice requirements—regardless of whether that business is liquidating or operating. Thus, irrespective of the Department’s commentary, the WARN Act is clear and its meaning must control: there is no “liquidating fiduciary” exception.

* University of Notre Dame (B.B.A. cum laude, 2015); Northwestern University (J.D. cum laude, 2018). Special thanks to Andrew Dawson, David Neff, and Victoria Nourse for helpful feedback. Thanks also to Katherine Drews and Louis Murray for valuable editing.

[1] 29 U.S.C. §§ 2101–2109 (2012).

[2] 29 U.S.C. § 2102(a) (“An employer shall not order a plant closing or mass layoff until the end of a 60-day period after the employer serves written notice of such an order . . . .”); see §§ 2101(a)(2) and (3) for definitions of “plant closing” and “mass layoff,” respectively.

[3] 29 U.S.C. § 2101(a)(1) (emphasis added).

[4] 29 U.S.C. § 2104(a)(1).

[5] In re ContinentalAFA Dispensing Co., 403 B.R. 653, 658 (Bankr. E.D. Mo. 2009); see also In re Hanlin Grp., Inc., 176 B.R. 329, 334 (Bankr. D.N.J. 1995) (same quote); In re World Mktg. Chicago, LLC, 564 B.R. 587, 596 (Bankr. N.D. Ill. 2017) (citing ContinentalAFA, 403 B.R. at 658) (“There is little question that WARN Act claims are in the nature of severance.”).

[6] In re Cargo, Inc., 138 B.R. 923, 927 (Bankr. N.D. Iowa 1992).

[7] Hanlin, 176 B.R. at 334; see also John-Ethan Gionies, Note, The Liquidating Fiduciary: A Hidden Exception to WARN Act Liability, 31 Hofstra Lab. & Emp. L. J. 273, 285–86 (2013) (explaining the “liquidating fiduciary” exception and analyzing how it would apply in bankruptcy proceedings, but not questioning its existence).

[8] 29 U.S.C. § 2107.

[9] Worker Adjustment and Retraining Notification, 54 Fed. Reg. 16,042, 16,045 (Apr. 20, 1989) (analyzing a portion of the final rule later codified at 20 C.F.R. pt. 639.3(a)).

[10] Id.

[11] See 11 U.S.C. §§ 701–84 (2012); 11 U.S.C. §§ 1101–1174. The business may also file for chapter 12 if it is a family corporation or partnership engaged in fishing or farming. Id. § 101(19A)(B).

[12] See 11 U.S.C. §§ 701–02.

[13] The trustee may, however, operate the business for a limited period, provided that doing so is “consistent with orderly liquidation of the estate.” 11 U.S.C. § 721.

[14] See In re World Mktg. Chicago, LLC, 564 B.R. 587, 599 (Bankr. N.D. Ill. 2017) (“As such, a chapter 7 trustee is just the sort of liquidating fiduciary that is contemplated in the Department of Labor commentary.”).

[15] 11 U.S.C. §§ 1106, 1107.

[16] Id.

[17] Id. § 1104(a).

[18] Id. § 1101(1).

[19] Id. § 1107(a).

[20] Commodity Futures Trading Comm’n v. Weintrauf, 471 U.S. 343, 355 (1985) (“[I]f a debtor remains in possession—that is, if a trustee is not appointed—the debtor’s directors bear essentially the same fiduciary obligation to creditors and shareholders as would the trustee for a debtor out of possession.”).

[21] World Mktg. Chicago, 564 B.R. at 600 (“The sole function of the debtor in possession and chapter 11 trustee is not to liquidate.”).

[22] 11 U.S.C. § 1108.

[23] 54 Fed. Reg. 16,045 (1989).

[24] Compare World Mktg. Chicago, 564 B.R. at 600 (suggesting that the “liquidating fiduciary” exception should never apply in a chapter 11 case because the sole function of a debtor in possession is not to liquidate and the debtor in possession may continue to operate the business) (a prospective approach focused on the debtor’s statutory powers) with In re United Healthcare Sys., Inc., 200 F.3d 170, 178 (3d Cir. 1999) (applying the exception in a chapter 11 case because the debtor in possession demonstrated a clear intent to liquidate) (a retroactive approach focused on the debtor’s actions).

[25] See United Healthcare, 200 F.3d at 177, 179 (“It is appropriate, therefore, to consider agency regulations and comments as well as the case law. . . . In conclusion, we do not believe United Healthcare continued as an ‘employer’ within the meaning of the WARN Act when it assumed the role of fiduciary following the filing for bankruptcy. At that time, it ceased operating its business as a going concern and was simply preparing itself for liquidation.”); In re Century City Doctors Hosp., LLC, 2010 WL 6452903, at *7 (B.A.P. 9th Cir. Oct. 29, 2010) (“Given that the Ninth Circuit already has used the DOL Commentary for the same purpose, the bankruptcy court did not err when it relied on the DOL Commentary to determine whether the Trustee qualified as an employer under the WARN Act.”); World Mktg. Chicago, 564 B.R. at 599 (“The bankruptcy courts that have considered the specific question of whether a liquidating fiduciary exception to the WARN Act applies have uniformly concluded that it does. . . . In light of the foregoing, the court has little hesitation in holding that there is indeed a liquidating fiduciary exception to the WARN Act in the manner set forth in the Department of Labor commentary.”); In re Dewey & LeBoeuf LLP, 487 B.R. 169, 175 (Bankr. S.D.N.Y. 2013) (stating that “[a] liquidating fiduciary principle has developed, pursuant to which a liquidating fiduciary in a bankruptcy case does not fit the definition of an employer for purposes of the WARN Act” and continuing to apply the exception); In re MF Glob. Holdings Ltd., 481 B.R. 268, 280, 282 (Bankr. S.D.N.Y. 2012) (“[T]he Court is persuaded that the ‘liquidating fiduciary’ principle is applicable in these proceedings.”); In re Century City Doctors Hosp., LLC, 417 B.R. 801, 805 (Bankr. C.D. Cal. 2009), aff’d, 2010 WL 6452903 (B.A.P. 9th Cir. Oct. 29, 2010) (finding no WARN liability because “the trustee acted solely as a ‘liquidating fiduciary,’ rather than an employer ‘operating a business enterprise in the normal commercial sense’”); In re Jamesway Corp., 1997 WL 327105, at *12 (Bankr. S.D.N.Y. June 12, 1997) (“Thus, liquidating fiduciaries need not provide notice to terminated employees under the WARN Act.”); Hanlin, 176 B.R. at 332 (quoting the Department’s commentary and then holding that the debtor was a WARN employer because it “continued to operate the business as a whole for the benefit of all parties in interest”).

[26] See supra note 25.

[27] 176 B.R. 329 (Bankr. D.N.J. 1995).

[28] 200 F.3d 170 (3d Cir. 1999).

[29] Hanlin, 176 B.R. at 332.

[30] Id.

[31] Id. at 332.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] See, e.g., World Mktg. Chicago, 564 B.R. at 600 (“The Third Circuit’s United Healthcare case is th[e] leading authority on the issue.”); MF Glob. Holdings Ltd., 481 B.R. at 280 (“The United Healthcare case is particularly instructive.”).

[37] In re United Healthcare Sys., Inc., 200 F.3d 170, 172 (3d Cir. 1999).

[38] Id. at 173.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id. at 173–74.

[48] Id. at 174.

[49] Id.

[50] Id.

[51] Id.; see also 54 Fed. Reg. 16,045 (1989).

[52] United Healthcare, 200 F.3d at 174.

[53] Id. at 175.

[54] Id.; Gionies, supra note 7, at 289–90.

[55] United Healthcare, 200 F.3d at 176.

[56] Id.

[57] Id. (“‘[B]usiness enterprise’ [is] a term the statute does not define.”).

[58] Id.

[59] Id. (emphasis added).

[60] Id. at 176–77 (“Addressing the facts here in context, we do not believe WARN’s plain language resolves whether United Healthcare was an ‘employer’ required to provide sixty days notice prior to its termination of the 1,200 employees.”).

[61] Id. at 177 (“It is appropriate, therefore, to consider agency regulations and comments as well as the case law.”).

[62] Id. at 179 (“[W]e do not believe United Healthcare continued as an ‘employer’ within the meaning of the WARN Act when it assumed the role of fiduciary following the filing for bankruptcy. At that time, it ceased operating its business as a going concern and was simply preparing itself for liquidation.”).

[63] Id.

[64] Id.

[65] Infra Part II.

[66] Id.

[67] Id.

[68] In re Hanlin Grp., Inc., 176 B.R. 329, 332 (Bankr. D.N.J. 1995)

[69] United Healthcare, 200 F.3d at 179.

[70] Id. at 177.

[71] See supra note 25.

[72] 29 U.S.C. § 2101(a)(1) (2012) (emphasis added).

[73] See Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (looking at the “text, structure, purpose, and history” of a statute to interpret its meaning); see also Sir William Blackstone, 1 Commentaries on the Laws of England 58–61 (Cooley ed. 1876) (1765-69) (“The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made, by Signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit and reason of the law.”).

[74] See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (“As in all statutory construction cases, we begin with the language of the statute.”).

[75] United Healthcare, 200 F.3d at 176 (“‘[B]usiness enterprise’ [is] a term the statute does not define.”).

[76] See Lopez v. Gonzales, 549 U.S. 47, 53 (2006) (“The everyday understanding of [the word at issue] should count for a lot here, for the statutes in play do not define the term, and so remit us to regular usage to see what Congress probably meant.”) (emphasis added).

[77] For example, Merriam-Webster defines “enterprise” as “a unit of economic organization or activity; especially a business organization.” Enterprise, Merriam-Webster Dictionary (2018), https://www.merriam-webster.com/dictionary/enterprise [https://perma.cc/9XMP-QQ5M]. In a similar manner, Black’s Law Dictionary defines “business enterprise” as “a for-profit company, business, or organization that provides financial, commercial, or industrial goods and services.” Business Enterprise, Black’s Law Dictionary (10th ed. 2014). A business being liquidated still provides goods and services—just not for much longer. For example, when retailers (such as Toys R Us) liquidate under chapter 7, they continue to sell any remaining inventory. See Joan Verdon & Nathan Bomey, How Chapter 7 Liquidation Works: Toys R Us Preps Going-Out-of-Business Sales, USA Today (Mar. 9, 2018), https://www.usatoday.com/story/money/2018/03/09/chapter-7-bankruptcy-liquidation/409239002/ [https://perma.cc/XHR9-LLQP].

[78] See Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2161–62 (2016) (“Judges say that we should not interpret statutes to be redundant. But humans speak redundantly all the time, and it turns out that Congress may do so as well. Congress might do so inadvertently. Or Congress might do so intentionally in order to, in Shakespeare’s words, make ‘double sure.’”).

[79] See W. Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 88–89 (1991) (looking at the “record of statutory usage” across various titles of the United States Code to determine that expert fees are not included in “attorney’s fees”).

[80] 15 U.S.C. § 1221(a) (2012).

[81] 15 U.S.C. § 7108(7) (2012).

[82] 22 U.S.C. § 3102(6) (2012).

[83] 28 U.S.C. § 1452(d)(2) (2012).

[84] 42 U.S.C. § 6705(f)(2) (2012).

[85] 42 U.S.C. § 7141(f) (2012).

[86] United States v. Scavo, 593 F.2d 837, 842–43 (8th Cir. 1979).

[87] Id. at 843.

[88] See In re United Healthcare Sys., 200 F.3d 170, 176 (3d Cir. 1999) (employees had “various tasks all related to shutting down . . . operations”) (emphasis added); see also In re Fairfield Sentry Ltd., 714 F.3d 127, 137 (2d Cir. 2013) (holding that a debtor’s “liquidation activities and administrative functions” may be considered to determine the debtor’s center of main interests for purposes of a chapter 15 cross-border bankruptcy) (emphasis added).

[89] 593 F.2d 837 (8th Cir. 1979).

[90] Id. at 842–43 (emphasis added).

[91] 54 Fed. Reg. 16,045 (1989).

[92] 200 F.3d at 176.

[93] 29 U.S.C. § 2101(a)(1) (2012) (emphasis added).

[94] See Victoria Nourse, Two Kinds of Plain Meaning, 76 Brook. L. Rev. 997, 1000 (2011) (“As linguist Larry Solan has written, ordinary meaning is prototypical meaning—that is, meaning focusing on a core example, rather than reaching the conceptual or logical extension of the term. Prototypical meaning picks the best example, not the peripheral one.”) (emphasis added).

[95] Id.

[96] Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002) (quoting United States v. Gonzales, 520 U.S. 1, 5 (1997)).

[97] Supra Part II, Section I.

[98] 29 U.S.C. § 2101(a)(1) (emphasis added).

[99] Rucker, 535 U.S. at 131.

[100] United States v. Johnson, 529 U.S. 53, 58 (2000).

[101] N.L.R.B. v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (quotations omitted) (citing Chevron v. Echazabal, 536 U.S. 73, 80 (2002) (quoting United States v. Vonn, 535 U.S. 55, 65 (2002))).

[102] 29 U.S.C. § 2102(b)(1).

[103] Id. § 2102(b)(2)(A).

[104] Id. § 2102(b)(2)(B).

[105] United States v. Vonn, 535 U.S. 55, 65 (2002) (citing Pauley v. Beth Energy Mines, Inc., 501 U.S. 680, 703 (1991)).

[106] Burns v. United States, 501 U.S. 129, 136 (1991).

[107] H.R. Rep. No. 100-576, at 1046 (1988) (Conf. Rep.).

[108] Omnibus Trade and Competitiveness Act of 1987, H.R. 3, 100th Cong. (1987).

[109] H.R. Rep. No. 100-576, at 1 (1988) (Conf. Rep.).

[110] H.R. Rep. No. 100-576, at 1045 (1988) (Conf. Rep.) (“The House bill contains no comparable provision” to the section “Advance Notification of Plant Closings and Mass Layoffs[.]”).

[111] Omnibus Trade and Competitiveness Act of 1987, S. 1420, 100th Cong. (1987).

[112] Id. at 609.

[113] Id.

[114] 29 U.S.C. § 2101(a)(1) (2012).

[115] H.R. Rep. No. 100-576 (1988) (Conf. Rep.).

[116] Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 147 (2d Cir. 2002).

[117] H.R. Rep. No. 100-576, at 1046 (1988) (Conf. Rep.).

[118] Id.

[119] See Actions Overview of H.R. 3 – 100th Congress (1987-1988), Congress.gov, https://www.congress.gov/bill/100th-congress/house-bill/3/actions?q=%7B%22search%22%3A%5B%22hr3%22%5D%7D&r=1616) [https://perma.cc/PYH4-6M59].

[120] Worker Adjustment and Retraining Notification Act, S. 2527, 100th Cong. § 2(a)(1) (1988).

[121] Id. § 2(a).

[122] Worker Adjustment and Retraining Notification Act, S. 2527, Roll Vote Nos. 225, 229.

[123] Worker Adjustment and Retraining Notification Act, Pub. L. No. 100-379, § 102 Stat. 890 (1988).

[124] Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.”) (emphasis added); McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 861 (2005) (“Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country.”) (emphasis added).

[125] In re APA Transp. Corp. Consol. Litig., 541 F.3d 233, 239 (3d Cir. 2008), (“The purpose of the WARN Act is to protect workers by obligating employers to give their employees advanced notice of plant closings.”); Bader v. N. Line Layers, Inc., 503 F.3d 813, 817 (9th Cir. 2007) (“The purpose of the Act is to give advance notice to workers and the community so that workers can prepare to seek alternative employment and communities can prepare for the economic disruption of a mass layoff.”).

[126] Bader, 503 F.3d at 817.

[127] Gionies, supra note 7, at 285 (“But now, in light of United Healthcare and Jamesway, it is possible that employers, under certain circumstances, might be wise to instead delay their layoffs or plant closings until after filing a petition in bankruptcy in hopes of completely relieving themselves of WARN Act liability by qualifying as liquidating fiduciaries instead of business enterprises.”).

[128] See In re Hanlin Grp., Inc., 176 B.R. 329, 334 (Bankr. D.N.J. 1995).

[129] 29 U.S.C. § 2104(a)(1) (2012).

[130]11 U.S.C. § 541 (2012) (defining the estate to include “all legal or equitable interests of the debtor in property as of the commencement of [a] case”).

[131] Solberg v. Inline Corp., 740 F.Supp. 680, 685 (D. Minn. 1990) (citing Belland v. Pension Benefit Guar. Corp., 726 F.2d 839, 844 (D.C. Cir. 1984)).

[132] Snider v. Commercial Fin. Servs., Inc., 288 B.R. 890, 895 (N.D. Okla. 2002) (citing Carpenters District Council of New Orleans & Vicinity v. Dillard Dept. Stores, Inc., 15 F.3d 1275, 1282 (5th Cir. 1994)) (“Exceptions to the sixty day notice requirement are to be narrowly construed and the employer has the burden to prove the exception applies.”).

[133] See Hale Melnick, Note, Guidance Documents and Rules: Increasing Executive Accountability in the Regulatory World, 44 B.C. Envtl. Aff. L. Rev. 357, 373–75 (2017).

[134] Kent Barnett & Christopher J. Walker, Chevron Step Two’s Domain, 93 Notre Dame L. Rev. 1441, 1441 (2018) (“An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference . . . .”); see generally Christopher J. Walker, Attacking Auer and Chevron Deference: A Literature Review, 16 Geo. J.L. & Pub. Pol’y 103 (2017).

[135] Pereira v. Sessions, 138 S.Ct. 2105, 2129 (2018) (Alito, J., dissenting) (“[U]nless the Court has overruled Chevron in a secret decision that has somehow escaped my attention, it remains good law.”).

[136] Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842–43 (“If the intent of Congress is clear, that is the end of the matter; . . . [but] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”).

[137] Melnick, supra note 133, at 373.

[138] Id. at 378 (“The Court in Barnhart announced that Chevron deference does not apply only to rules promulgated through notice-and-comment rulemaking.”) (citing Barnhart v. Walton, 535 U.S. 212, 221–22 (2002)).

[139] Id.).

[140] 467 U.S. at 843 n.9; see also Gen. Dynamics Land Sys., Inc. v. Cline, 540 U.S. 581, 600 (2004) (“Even for an agency able to claim all the authority possible under Chevron, deference to its statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent.”).

[141] Supra Part II.

[142] 467 U.S. at 842 (“If the intent of Congress is clear, that is the end of the matter . . . .”).

[143] Id.

[144] Melnick, supra note 133, at 375.

[145] Id.

[146] Id.; Skidmore v. Swift, 323 U.S. 134, 140 (1944).

[147] 29 U.S.C. § 2101(a)(1) (2012) (emphasis added).

It is All About the Money: Presidential Conflicts of Interest

By Samantha Block[*]

The 2016 presidential election marked an increased distrust in the government, bringing a new era of presidential and vice presidential candidates. Current conflict of interest laws do not extend to the President and Vice President due to an outdated fear of interfering with their Article II constitutional powers. While conflicts of interest are not unique to the 21st century, the 2016 election brought about unprecedented conflicts. The 2016 election was unique—President Donald Trump was the first President in decades to refuse to remove notions of financial conflicts of interest. Trump’s acquisitions abroad have led to accusations of bias and bribery along with the fear that U.S. foreign policy will be influenced by his self-interest. Trump touted his conflicts making it clear that current laws are ineffective and outdated. This Article proffers that conflict of interest laws need to extend to the President and Vice President. First, this Article will explain why presidential conflicts of interest were previously not explicitly outlawed. This Article will then discuss current conflicts of interest laws and tools for managing these conflicts. This Article proposes a new law that would apply to presidential and vice presidential candidates which would require them to create a qualified blind trust. Additionally, this Article will explain why the Office of Government Ethics should be charged with overseeing the enforcement of this regulation.

 

Table of Contents

Introduction

I. The Current Legal Landscape: What are Conflicts of Interest, Who is “Conflicted,” and the “Three-D” Method of Conflict of Interest Regulation

A.  Disclosure

B. Disqualification

C. Divestiture

II. The Election Evolution: An Evolution (Crisis) of Trust

A. The Millionaire’s Club: Why President and Vice President’s Conflicts of Interest Require Immediate Attention

B. The “Huge” Problem with Current Regulation of Conflicts of Interest

C. Emoluments Clause

III. The Proposal: Giving OGE Real Power to Prevent Conflicts of Interest Before a Candidate Takes Office

A. Public Service is Public Trust: How OGE Can Combat Conflicts of Interest

B. The Proposal: Candidate Commitment to Eliminating Financial Conflicts

i. Illustration: Proposed OGE Regulation in Action

C. Counter Argument: Takings Claim

D. Why the Proposed Statute is More Efficient Than the Alternatives

i. Constitutional Amendment

ii. Congress Takes Charge

iii. The Executive Investigates

Conclusion

 

Introduction

Alexander Hamilton explained in Federalist Paper No. 68 that one of the “most deadly adversaries of [a] republican government. . . [is] the desire in foreign powers to gain an improper ascendant to our councils.”[1] The 2016 presidential election has brought about a new era of more complex conflicts of interest which make it harder to prevent foreign influence over U.S. government officials.[2] President Donald Trump illustrates this shift in conflicts of interest—he is currently the sole owner or partner of around 500 business entities which are located in over 20 countries, creating concern about the nation’s susceptibility to foreign exploitation.[3]

Conflict of interest laws are necessary to prevent government officials, including the President and Vice President, from engaging in activities that could impair their ability to properly carry out the requirements of their position.[4] Historically, Congress has had difficulty drafting conflicts of interest laws while also avoiding separation of powers issues.[5] Yet the ongoing and fervent debate regarding gun control far outpaces its drunk driving equivalent. Congress attempted to address the problem of conflicts of interest by enacting various statutes [6] aimed at “prohibit[ing] government officials from engaging in conduct that might be inimical to the best interests of the general public.”[7]

But Congress is not the only entity concerned about conflicts of interest. Even Presidents have understood the danger personal financial interests can pose. For example, President Lyndon B. Johnson — who was accused of using his political influence to garner profits for his wife’s broadcasting company — recognized that conflicts of interest laws needed to extend to executive employees – and set forth “standards of ethical conduct” for executive employees in Executive Order 11,222.[8] Unfortunately, both Congress and President Johnson’s efforts failed to extend the applicability of those requirements to the President and Vice President.[9] In the words of the 45th President, Donald Trump, this is a huge problem.

The 2016 election brought to the forefront the issue of conflicts of interest and the lack of regulation in this area of the law as it applies to the President. Past presidential elections have demonstrated that some conflicts of interest are inevitable, as Presidents and Vice Presidents are no longer only career politicians, but also entrepreneurs and investors with complex portfolios. This Article will explain the need for a federal conflict of interest law that applies to the President and Vice President and illustrate why the Office of Government Ethics (“OGE”) should be charged with enforcing a condition precedent for candidates, requiring them to agree to create a blind trust. Part I will discuss the current legal landscape pertaining to federal conflicts of interest law and the three methods typically implemented to avoid these conflicts: disclosure, disqualification, and divestiture. Part II will examine the existing federal conflicts of interest regulations and explain why they do not apply to the President and Vice President. In addition, Part II will assess the potential separation of powers issues presented when expanding these regulations to the President and Vice President. Part III will discuss why a condition precedent for presidential and vice presidential candidates, regulated by OGE, is the best solution to prevent executive conflicts of interest.

I. The Current Legal Landscape: What are Conflicts of Interest, Who is “Conflicted,” and the “Three-D” Method of Conflict of Interest Regulation

Conflicts of interest have the potential to influence executive actions. As James Madison stated, “[n]o man is allowed to be a judge in his own case, because his interest would certainly bias his judgment, and not improbably, corrupt his integrity.”[10] A conflict of interest exists whenever an “officer or employee of the executive branch[‘s]. . . decision, approval, disapproval, recommendation, the rendering of advice, [or] investigation” will affect his financial interests.[11] Conflicts of interest are concerning because they create a fear in citizens that the “loyalty to private economic and business interests, rather than fealty to the general public interest, is being served by such officials in their actions.” [12]

During the Civil War, Congress restricted potential presidential conflicts of interest by enacting a financial conflict statute—however, it was eventually amended to exempt the President to avoid any impression that Congress was overstepping its constitutional powers.[13] In 1965, President Lyndon B. Johnson issued Executive Order 11,222 which created ethical standards of conduct for executive branch employees.[14] According to President Johnson, this Order was important because “[w]hen government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government.”[15] Part two of the order prohibits employees from “solicit[ing] or accept[ing], directly or indirectly, any gift, gratuity, favor, entertainment, loan or any other thing of monetary value” from a party who has an interest in the employee’s actions.[16] Part four requires certain executive office and agency employees to disclose their financial statements.[17]

The executive is not the only branch that has recognized the need for regulations that address conflicts of interest—Congress has also passed legislation concerning these financial interests. In the aftermath of Nixon’s Watergate scandal, in 1978 Congress passed the Ethics in Government Act (“Ethics Act”)[18] which sought to “increase public confidence in the government.”[19] The purpose of the Ethics Act was to provide the public with information regarding potential conflicts of interest and raise awareness of the economic interests of candidates that may influence their decision-making.[20] Additionally, the Ethics Act created OGE, an independent agency, to oversee the ethics requirements for the executive branch.[21]

Currently, the laws regarding conflicts of interest only extend to certain executive branch employees. [22] These laws center around the notion “that a public servant owes undivided loyalty to the Government” and seek to prevent any intentional or unintentional influence arising from private or personal financial interests.[23]The current federal conflict of interest laws can go so far as to require employees to divest assets or recuse themselves from certain issues.[24] Yet these laws fail to extend to the President and Vice President for fear of “interfer[ing] with their ability to carry out their diverse responsibilities under the Constitution.”[25]

While these laws do not extend to the President, many Presidents voluntarily comply and generally utilize one of three different courses of action. These commonly implemented methods are typically referred to as the “three-D” method: “disclosure, disqualification, and divestiture.”[26]

A. Disclosure

Disclosure informs the public of any potential conflicts, but only goes so far in removing conflicts of interest. Congress believed that mandatory disclosure laws would help increase confidence in the government and remedy the low voter turnout that resulted from the Watergate scandal.[27] To rectify this increased distrust, Congress implemented public financial disclosure laws “aimed at prohibiting conflicts of interest and requiring disclosure of gifts, contributions, personal income, and net worth.”[28] These early conflict of interest laws, which were interpreted to exclude the President, sought to “demonstrate the high level of integrity of the vast majority of government officials.”[29] The interpretations were in part based on Congress’s 1989 amendment to the federal conflict of interest statute to explain that the “terms ‘officer’ and ‘employee’ shall not include the President [and] the Vice President.”[30] However, even before the amendment expressly excluded the President and Vice President, the DOJ believed that conflicts of interest statutes did not apply to the President because it would “disempower him from performing some of the functions prescribed [in] the Constitution.”[31]

Despite their exemption, the majority of Presidents and Vice Presidents continued to voluntarily disclose their financial interests, to avoid any perceived or actual conflicts of interest.[32] Although there are no laws compelling a President to rid himself of a conflict, federal ethics laws do require the President to disclose certain potential conflicts of interest.[33] One such law is the above mentioned Ethics Act which requires the President and Vice President “to disclose personal assets, investments, interests, and income upon entering office and on an annual basis thereafter.”[34]

To serve as President is to sacrifice self-interest for the “public good.”[35] The congressional committee recognized two potential “deterrent factor[s]” mandatory public disclosure could create: it could both deter maintaining certain assets and also dissuade some individuals from seeking office.[36] The disclosure laws are meant to ensure that an official’s personal ventures are subject to public scrutiny by providing citizens the opportunity to evaluate the potential impact these investments could have on their decision-making.[37] Disclosure, however, does not instruct an official on the handling of his personal ventures.[38] Due to the nature of a mechanism such as disclosure, it may lead to public awareness of a conflict of interest but, without more, disclosure cannot force a candidate to rectify the problem.[39] Rather, disclosure merely allows “steps to be taken to determine what measures are needed to resolve or manage the conflict.”[40]

B. Disqualification

When an elected official utilizes only disclosure, a conflict of interest may still arise, thus resulting in the official’s required recusal from certain responsibilities. Currently, federal ethics laws prohibit officials from personally participating in matters which the official personally, a member of the official’s family, or an organization connected to the official is involved.[41] Additionally, these laws require those with a substantial financial stake in a matter to recuse themselves.[42] These laws, however, extend only to current or existing financial interest, not past affiliations; thus, an official will not typically be prevented from participating in matters relating to previous affiliations and economic interest.[43] It should also be noted that the statutory provision requiring disqualification and recusal from certain matters is a criminal provision.[44]

A federal official not wishing to or unable to recuse himself may request a waiver permitting him to work on the matter.[45] Most waiver requests are granted because the conflicts are classified as “immaterial or unlikely.”[46]

The financial conflict of interest laws requiring recusal apply to all officers and employees in the executive branch and independent agencies, but expressly exclude the President and Vice President.[47] Even before the specific statutory exemption, Congress interpreted the disqualification law not to extend to the President and Vice President.[48] Legislation requiring recusal clearly has more of an ability to prevent conflicts of interest, but unlike disclosure, which Presidents and Vice Presidents have chosen to comply with, recusal has not been voluntarily used.

C. Divestiture

The most effective mechanism to avoid conflicts of interest, but most draconian of the “three-Ds,” is divestiture. To avoid disqualification, a public official can avoid conflicts of interest by divesting any financial interests that may potentially necessitate recusal.[49] There is no federal statute requiring federal employees to divest particular private assets due to potential conflicts of interest.[50] Some government employees choose to divest their assets to avoid conflicts of interest.[51] For example, during the Obama Administration, Deputy Secretary of Defense appointee William J. Lynn, former lobbyist and Senior Vice President of defense contractor Raytheon, agreed to sell his restricted stock in the company, as a condition of his appointment.[52] By divesting these assets, Lynn was able to remove any impression of a conflict of interest while working at the Pentagon, where his responsibilities include creating defense contracts.[53]

There are numerous ways to divest an asset, the most “obvious” being to sell any potentially problematic financial interests.[54] An alternative to complete divestiture is for an official to create a qualified blind trust. A qualified blind trust is a trust that adheres to the regulations set forth in the Ethics Act.[55] The Act requires a qualified blind trust to be approved by OGE prior to its execution.[56] The trust is “blind” because the official transfers his asset to the trust, which is managed by an independent trustee, without the official’s participation or knowledge.[57] An independent trustee “cannot be affiliated with, associated with, related to, or subject to the control or influence of anyone who has a beneficial interest in the [blind trust].”[58] The trustee may sell the original assets and acquire new ones, but the official is unaware of how the assets are being managed.[59] The independent trustee is charged with managing the assets and is restricted from relaying information about the assets to the official, outside of the “most basic information.”[60] This information is usually limited to the taxable income and total fair market value, additional disclosures are limited to requests for cash to assist with living expenses.[61]

Blind trusts are a good solution for candidates with complicated portfolios that cannot be easily liquidated or for those who do not want to convert their asset into a treasury note or mutual fund.[62] As a conflict avoidance measure, a blind trust strikes a balance between ensuring that a policymaker’s own financial investments do not influence their decision-making while not dissuading qualified individuals from running for office.[63] While no federal law requires employees to place assets into a blind trust upon taking office, it is a common practice among high-ranking officials.[64] This is because blind trusts enable a politician to avoid the appearance of conflicts of interest between personal financial interests and that of the public’s interest without completely divesting all of their assets.[65] Establishing a blind trust can also help ease the burdens of disclosing financial interests because an official only needs to include the overall value of the trust and the assets originally transferred.[66] Additionally, many Presidents utilize blind trusts because of the difficulty in either recusing themselves or obtaining waivers for all of their duties.[67]

However, a blind trust is not an absolute protection against suspicion. Even after creating a blind trust, officials may still be subject to scrutiny over their investments. For example, in 2005, Bill Frist, then-U.S. Senate Majority Leader, had his trustee sell shares of a hospital company his father and brother founded, just days before the stock reported decreased earnings.[68] Although the Securities and Exchange Commission did not charge Frist, the media scrutiny he received likely contributed to his decision not to seek reelection or pursue a presidential bid.[69]

This is not to say that a blind trust is not a useful tool to combat conflicts of interest. A blind trust helps foster public confidence in governmental decision-making by preventing the official from knowing which companies he owns thereby removing biased policymaking.[70] Blind trusts are easily regulated—the Ethics Act sets out specific requirements for a “qualified blind trusts”[71] —and allow an official to avoid complete divestiture. This Article argues that complete divestiture is not needed to avoid conflicts of interest and, rather than reinventing the wheel, the Ethics Act’s requirements for qualified blind trusts should be used in a statute that applies to the President and Vice President.[72]

II. The Election Evolution: An Evolution (Crisis) of Trust

A President’s income is typically related to the economy, consequently, President’s financial ventures have changed as the dominant industries have shifted.[73] In the beginning of the republic, slavery was often defended as an “economic necessity.” In fact, several early Presidents owned slaves. Presidents who had slaves often faced higher scrutiny, particularly from the North.[74] Recently, historians have focused on one such President—Thomas Jefferson. Jefferson took a contradictory approach to slavery, which some scholars opine was a result of his personal interests influencing his policies.[75] By 1850 most Presidents were middle-class lawyers who had previously spent a significant part of their career in public service and a majority of whose financial interests were in personal real estate and easily liquidated assets.[76] The likelihood that their wealth would affect their domestic and foreign policies was highly unlikely. From the end of the nineteenth century to the early twentieth century, the economy shifted to “professionally organized corporations”—mining, oil, railroad, and financial sectors were the high grossing sectors.[77] During this period, a significant portion of a President’s wealth was amassed from inheritance, which was also unlikely to be affected by executive actions.[78]

Today, conflicts of interest occupy a place of anxiety in the public consciousness—gone are the days of veteran public servants; now Presidents are also business moguls.[79] As these conflicts have become more publicized, the public’s trust in the government has decreased. Even the Supreme Court has recognized the importance of creating a conflicts of interest standard, explaining that “a democracy is effective only if the people have faith in those who govern, and the faith is bound to be shattered when high officials . . . engage in activities which arouse suspicions of malfeasance and corruption.”[80] There are several reasons for the growing mistrust of the government, such as the increased regulation and bail-outs to the growing “sea of money pumped into political campaigns” which allows interest groups to have direct access to public officials.[81] This direct access at the candidate stage coupled with the lack of regulations or constitutional provisions extending to presidential conflicts of interest, have led to many individuals accusing the President of improper decision-making.[82]

A. The Millionaire’s Club: Why Presidential and Vice Presidential Conflicts of Interest Require Immediate Attention

The 2016 election is not the first time that concerns arose about the President and Vice President’s potential conflicts of interest. Past presidential candidates, such as 2012 Republican candidate Mitt Romney, faced numerous potential conflicts of interest.[83] These potential conflicts ranged from his prior management of Bain Capital—a private equity firm that invested in U.S. companies—to his refusal to disclose all of his investments.[84] Romney tried to combat these concerns by touting his “blind” trust; however, this trust was controlled by his longtime friend and personal lawyer. [85] Presidents are not alone in facing conflicts of interest. Vice Presidents, such as Nelson Rockefeller and Dick Cheney, also have confronted a multitude of potential conflicts.[86] For example, Rockefeller served on the board of directors for numerous companies who received government contracts while he was in office.[87] During the 1974 confirmation hearings on Rockefeller’s nomination for Vice President,[88] the Senate failed to agree on the necessary extent of disclosure and which of Rockefeller’s financial ties would lead to conflicts.[89] Four months after Rockefeller’s nomination for Vice President—twice the length of time it took for Gerald R. Ford’s presidential nomination process to be completed—Rockefeller finally received his confirmation for Vice President.[90]

Similarly, in 2001 Dick Cheney made headlines for his conflicts of interest during the Iraq war. While Cheney was Vice President, the military contractor Halliburton, where Cheney was the past chief executive, rose from the twenty-second largest to the seventh largest military contractor.[91] In 2001, Halliburton won a contract worth as much as $7 billion to provide support to the military troops in the Middle East.[92] The company continued to receive Iraq-related contracts without any bidding[93] from competing firms, totaling $39.5 billion.[94] Responding to the public outcry concerning Cheney’s actions while Vice President, in April 2007, United States Representative Dennis Kucinich filed an impeachment resolution against Cheney.[95] In this resolution Kucinich accused Cheney of “purposely manipulat[ing] the intelligence process” and threatening Iran with force when no real danger existed.[96] Cheney’s potential impeachment illustrates that as global markets become increasingly interconnected, voters have focused more on where and from whom government officials get their money.

The 2016 election saw a shift in how candidates confronted their conflicts of interest. Rather than attempting to avoid conflicts, then-candidate Trump embraced his. Trump admitted that his policy decisions currently are and would continue to be affected by his business ventures.[97] When addressing a recent lease for his hotel business, the federally-owned Old Post Office Pavilion in Washington, D.C., Trump admitted “I have a conflict of interest because I am building the greatest . . . building at the old post office I think what will be maybe one of the great hotels in the world.”[98]

To quell fears regarding his conflicts of interest, Trump stated that he would put the Trump Organization into a blind trust controlled by his two eldest sons and “take other steps” to remove suspicion of any conflicts of interest, but refused to sell his assets.[99] Despite this promise to remove any conflicts, Trump maintained that his children would not only remain a part of the company, but they would also be involved in vetting cabinet candidates.[100] While Trump claims he will “not talk about business” with his sons, it is impossible to ensure he adheres to this promise.[101] Trump’s children running his company is a minor conflict compared to the fear of foreign nationals influencing the President.[102] The Trump Organization has numerous overseas partners including an Azerbaijani billionaire, whose father has been identified by American intelligence as a money launderer for the Iranian military, raising ethical concerns for Trump who campaigned as a staunch adversary of the Iranian regime.[103]

In the 2016 election, the democratic candidate, Hillary Clinton, also faced scrutiny for her potential conflicts of interest, mainly the Clinton Foundation’s foreign donors. Unlike Trump’s assets, the Clinton Foundation does not have investors, but rather donors, making divestiture an unlikely solution. To avoid an appearance of a conflict, Bill Clinton said he would leave the board, cease raising funds, the organization would no longer accept foreign donations, and the name would be changed from the Bill, Hillary & Chelsea Clinton Foundation to the Clinton Foundation.[104]

Hillary Clinton’s actions while Secretary of State were also highly scrutinized during the campaign and even after the election. In 2010, while Clinton was secretary of state, the State Department signed off on a deal for the purchase of Uranium One by Rosatom, Russia’s nuclear energy agency.[105] Critics were skeptical of Clinton’s motives as several of Uranium One’s owners were also donors to the Clinton Foundation. In 2017, the Department of Justice investigated the Clinton Foundation after allegations resurfaced that the Clinton approved this deal in exchange for donations to the Clinton Foundation. [106]
Political ideologies aside, the 2016 election demonstrates that presidential conflicts of interest should be a matter of public concern and the gap in current legislation extending to the President needs to finally be addressed by Congress.[107]

B. The “Huge” Problem with Current Regulation of Conflicts of Interest

Congress enacted 18 U.S.C. § 208 to prohibit executive branch and agency employees from “personally and substantially” participating in a matter “in which, to his knowledge, he, his spouse, minor child, general partner, organization in which he is serving as officer” has a financial interest.[108] Section 208 was created “to insure honesty in the government’s business dealings by preventing federal agents who have interests adverse to those of the Government from advancing their own interest at the expense of public welfare.”[109]

Under section 208 a “financial interest exists on the part of a party to a section 208 action where there is a real possibility of gain or loss because of developments in or resolution of a matter.”[110] A financial interest includes negotiations with private sector entities for future employment.[111] Section 208 does not require that the Government suffer actual loss or that there be actual corruption because of the employee’s conflict of interest.[112]

As it currently stands, Section 208 specifically exempts the President and Vice President.[113] The rationale is that most of the decisions required of the President will lead to advantages for some and disadvantages for others, making it almost impossible to regulate every action taken by him.[114] In particular, the drafters feared that section 208, which imposes federal criminal penalties, would interfere with a President’s ability to carry out the constitutional requirements of the position, such as prohibiting the President from signing certain legislation.[115] Therefore, to avoid tying the “single most consequential decision maker on the planet[’s]” hands because of conflicts of interest over potential financial gain, Congress did not extend section 208 to the President.[116] Congress reasoned that because of the “uniqueness” of the President’s situation they “must inevitably be treated separately from the rest of the executive branch . . . [because] disqualification of the President from policy decisions because of personal conflicting interests [would be] inconceivable.”[117] The framers of the Constitution also recognized the danger of conflicts of interest and advocated for mechanisms that cabin the effects of conflicts rather than requiring officials to completely remove any self-interest.[118]

Congress can arguably create federal conflicts of interest law that apply to the President, just as they had prior to the 1989 ethics legislation reform.[119] The Supreme Court has explained the importance of Congress’s ability to “adopt a statute whose breadth would be sufficient to cope with the evil [of conflicts of interest].”[120] When extending these laws to the President, Congress must still be careful to avoid confrontations between the executive branch and itself.[121] The framers assigned different powers to the legislative, executive, and judicial branches, but, in doing so, they rejected the “pure doctrine”[122]of separation of powers.[123] Instead, the framers implemented a system of checks and balances, giving each branch the ability to control certain aspects of the other. Expanding section 208 would not be a check, however, because a forced recusal would impede the President’s Article II constitutionally required powers.

Some commentators argue that expanding section 208 would impede the President’s ability to fulfill his Article II requirements, creating a separation of powers issue.[124] Subjecting the President to section 208 will potentially conflict him out of giving certain executive actions, thereby interfering with his constitutional duties.[125] Arguably expanding section 208 also unlawfully adds supplemental requirements to the qualifications for being president.[126] This could be perceived as Congress overstepping its authority by disqualifying individuals with conflicts of interest, a violation of the separation of powers principle.[127]

C. Emoluments Clause

A broader potential limitation on conflicts of interest is the Emoluments Clause.[128] On its face, the Constitution does not provide parameters for conflicts of interest presented by the President.[129] The only arguable limitation on these types of conflicts of interest would be the Emoluments Clause[130] of the Constitution, allowing Congress to police the executive branch.[131] The Emoluments Clause—“essentially an anti-bribery rule”—prevents members of the federal government from accepting gifts and payments from foreign nations without congressional approval.[132] Under this Clause Congress has the explicit power to regulate what things of value[133] the President can accept from foreign officials.[134] The Emoluments Clause permits Congress to create ethical standards that apply to various government officials, including the President and Vice President, making it a potential basis for congressional action.[135] The Emoluments Clause seeks to prevent foreign officials from influencing the President by giving Congress the power to create a standard of acceptable conduct.[136] The founders created this clause because they recognized that “[c]orruption, in the American tradition, does not just include blatant bribes and theft from the public till, but encompasses many situations where politicians and public intuitions serve private interests at the public’s expense.”[137]

It is ambiguous whether the founders intended for the Emoluments Clause to extend to the President. Little judicial precedent exists regarding the Emoluments Clause, making its scope unknown.[138] Although some argue that the Emoluments Clause was not meant to extend to the President, past presidential actions illustrate the contrary.[139] In fact “[e]very President in the past four decades[140] has taken personal holdings he had before being elected and put them in a blind trust” or an equivalent.[141] This was done to avoid conflicts, including those barred by the Emoluments Clause.[142]

Some scholars argue that the Emoluments Clause does not apply to the President.[143] Professor Seth Barrett Tillman[144] argues that the Emoluments Clause does not extend to the President and uses George Washington to support this assertion. Tillman notes that Washington accepted two gifts—a key to a Bastille and a portrait of King Louis XVI—from French officials without congressional approval.[145] However, Tillman fails to account for the fact that both gifts were given by former Washington aides, making it plausible that Washington considered these personal gifts.[146] Notably, until President Trump, the Emoluments Clause received little attention.[147] Consequently, there is a lack of judicial precedent interpreting the scope of the Clause. These consistent past actions by Presidents should not go unnoticed. Just as the Supreme Court, when dealing with national security issues, looks at past practices to determine the limits of presidential power, here Presidents’ past compliance creates a compelling argument for the Emoluments Clause’s extension to the President and Vice President.[148]

Some scholars argue that if Washington did not have to follow the Emolument Clause, the framers did not intend it to apply to the President.[149] Yet the Emoluments Clause specifically states that it applies to “any Office of Profit or Trust [under the United States]” making it improbable that it was not meant to extend to the President.[150] An argument could be made that extending the Emoluments Clause to the President and Vice President would be a violation of the separation of powers principle by creating additional qualifications for office.[151] The Emoluments Clause’s anti-corruption purpose, however, reaches the President as much as any other official, and since its strong language does not clearly exempt the President, Congress probably has the ability to regulate Presidential conflicts of interest.[152] There is also uncertainty as to whether anyone has legal standing to bring a claim under the Emoluments Clause.[153]

Even if the Emoluments Clause applied to the President and Vice President, it would not extend to some substantial potential conflicts. For example, President Trump is locating his new hotel in Washington, D.C., on government property at the Old Post Office.[154] The rental agreement requires Trump’s company to pay both rent and annual payments based on the success of the business, necessitating continual negotiations.[155]; Steven Schooner, Professor of Government Procurement Law and Co-Director of the Government Procurement Law Program at The George Washington University Law School, pointed out that the potential conflict this causes is not covered by the Emoluments Clause. Professor Schooner stated, “[h]ow can anyone expect a government employee to negotiate with the Trump family at arm’s length and treat the Trump family like any other contractor?”[156] Due to the Emoluments Clause’s focus on the acceptance of foreign money and its reliance on congressional discretion, subjecting its enforcement to the potential bias of the majority party, make relying solely on it an unlikely solution.

III. The Proposal: Giving OGE Real Power to Prevent Conflicts of Interest Before a Candidate Takes Office

Approximately a month after Trump’s victory in the 2016 election, the Senate Committee on Homeland Security and Governmental Affairs enlisted the help of OGE in preventing any conflicts of interest.[157] The director of OGE, Walter Shaub, explained that although the agency oversees the ethics program of the executive branch, it “[lacks] authority to issue binding opinions.”[158] Over the past three decades, OGE has issued nonbinding recommendations regarding a President’s conflicts of interest.[159] Shaub notes, however, that “[w]hile OGE’s role in ethics issues involving the President is limited, OGE has significant involvement in ethics issues related to the President’s nominees.”[160] Presently, OGE has been unable to use its over thirty years of experience assisting Presidents with conflicts of interest, to do anything more than issue advisory opinions.[161] The purpose of this Article’s proposal is to give OGE actual power to take action, in the hopes that the President and Vice President would have to confront their conflicts of interest, rather than ignore its existence and potential effects on their policymaking.

Further, the rationale of some critics that the regulation of presidential conflicts of interest by Congress violates the separation of powers principle is flawed. Congress has the power “to make all [l]aws which shall be necessary and proper for carrying into [e]xecution for foregoing [p]owers, and all other [p]owers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”[162] Under the Necessary and Proper Clause Congress not only has the power to decide when its own powers will be exercised and executed, but also has the discretion to decide how all federal government powers shall be executed, including that of the executive branch.[163] The Necessary and Proper Clause, Emoluments Clause, along with Congress’s legislative powers under Article I, and past conflict of interest legislation extending to the President, demonstrate that not all presidential conflicts of interest laws would be an over extension of Congress’s power. Therefore, Congress can create legislation applying to the President and Vice President, and through the Necessary and Proper Clause grant an independent agency both regulatory and enforcement authority over these new laws.[164]

A. Public Service is Public Trust: How OGE Can Combat Conflicts of Interest

By creating a rule that would prohibit Presidents from possessing the very conflicts of interest that plagued the 2016 election, future administrations would be forced to avoid even the appearance of bias decision-making. This Article’s proposal remedies the void in current conflict of interest regulation that was brought to the forefront during the 2016 election. Promulgating a rule that would prevent presidential conflicts of interest could reverse the current downward spiral of distrust in U.S. government officials. The purpose of the proposal is to remove potential biased decision-making by the President and Vice President, while ensuring accountability by having OGE, an expert on conflict of interest laws, tasked with enforcement, instead of it remaining as an oversight agency with no teeth.

In the last ten years, OGE has created revisions for the Ethics Act and has submitted reports to Congress containing legislative recommendations on issues such as executive branch conflicts of interest and improvements to financial disclosure requirements for presidential nominees.[165]

In an attempt to increase public trust in the government, Congress created OGE to help officials avoid having conflicts of interest. OGE “provides oversight, policy, and guidance to the executive branch regarding ethics laws and policies.”[166] OGE has around 80 full time employees, which is more members than other agencies that have the power to promulgate and enforce regulations, its Director serves five-year terms which overlaps with presidential terms, and has budget of $16 million.[167] (But Congress has not provided OGE with any actual investigative authority and OGE is limited to taking disciplinary action only against OGE employees.[168] Rather than give OGE the power to investigate and enforce its ethics laws and policies, Congress created a special prosecutor exception for accusations of high-ranking officials.[169]

As a result of the Watergate scandal, Congress sought to ensure any new legislation would avoid intelligence agencies working with the very officials being prosecuted.[170] Under Title VI of the Ethics Act [171] a special counsel was required when an official, such as the President or Vice President, are suspected of violating federal law.[172] The Attorney General of the United States was required to conduct a preliminary investigation whenever there is a suggestion that the President or Vice President has violated any federal criminal law.[173] These provisions were aimed at eliminating any actual or apparent conflicts of interest that are inherent in requiring the Attorney General to investigate high-level officials within the executive branch.[174] Because the Attorney General is a member of the executive branch and will always have an inherent conflict, Congress should instead grant OGE the power to oversee conflicts of interest regulations regarding the President and Vice President. The Department of Justice, however, would retain the power to initiate investigations and appoint independent counsel for any matter not concerning conflicts of interest for the President or Vice President.[175]

B. The Proposal: Candidate Commitment to Eliminating Financial Conflicts

The most effective way to overcome the recent phenomenon of global conflicts of interest is by tasking a politically neutral body with enforcing new rules. OGE, with its expertise in conflicts of interest prevention, is the best-suited independent agency and would avoid separation of powers issues between the legislative and executive branch.[176] OGE would be able to circumvent the unreliable policing power of a Congress that is of the same political party as the current administration.[177] This Article recommends Congress enact the following statute granting OGE the power to investigate and enforce violations of the statutory restrictions on conflicts of interest:

Whoever, being a candidate for the office of the President or Vice President, must agree before becoming a candidate, in writing, to place all financial interests that may pose a potential conflict of interest in a qualified blind trust if elected

1. Definitions.
   1. The term “candidate” for purposes of this regulation is “an individual who seeks nomination for election, or election, to Federal office.”[178]
   2. The term “assets” includes—
      1. “cash, stocks, bonds, mutual funds, [business holdings], or real estate.”[179]
   3. A “financial interest” comprises any asset, but is not limited to: personal assets, investment income, and private holdings of property and business.
   4. “A ‘qualified blind trust’ means a trust in which the employee, his spouse, or his minor or dependent child has a beneficial interest and which:”[180]
      1. the candidate, who remains the beneficiary, has no knowledge of the holdings of the trust, no right to intervene, and is managed by an independent trustee who can sell the assets and acquire new ones. For purposes of this regulation a qualified trust will be defined by 5 C.F.R. § 2634.402 (2012).
         1. “The income tax return of the Trust shall be prepared by the Trustee or his designee, and such return and any information relating thereto (other than the Trust income summarized in appropriate categories necessary to complete an interested party’s tax return), shall not be disclosed to the public or to any interested party”[181]
            1. acting as an exception to the reporting requirement of any federal conflict of interest laws.
         2. The term “independent trustee” means a third-party who is designated as the trustee and must:
            1. be independent from the candidate,
            2. have no affiliation or been employed by the candidate or any interested parties, and
            3. not be a relative of the candidate.[182]
         3. The “purpose” of the qualified blind trust is to give candidates an effective way to avoid allegations of financial conflicts of interest while avoiding complete divestiture.
   5. The candidate shall, once elected, within 60 days of the date of their inauguration, set up a qualified blind trust for their assets.
   6. Within 80 days of Inauguration Day, if the candidate has not complied and created a blind trust as required by (a)(4) & 5 C.F.R. §2634.402, OGE must bring a suit in the United States District Court for the District of Columbia—
      1. suit must be brought no later than two weeks after noncompliance.
   7. The United States District Court for the District of Columbia may assess against such individual a fine in any amount not to exceed $50,000 or imprisonment not longer than five years,[183] or both; and shall be incapable of running for or holding any office of honor, trust, or profit under the United States—
      1. aiming to eliminate real or apparent financial conflicts of interest and promote ethical decision-making while providing candidates notice and clear guidelines on expectations prior to running for office.

There are four major requirements of this proposed statute. First, this proposal creates a condition precedent requiring the President and Vice President to create a qualified blind trust within 60 days of their inauguration.[184] Second, the statute defines a blind trust and requires an independent trustee—which cannot be a friend or family member—be charged with controlling the trust. Third, the statute lays out enforcement procedures—if a President or Vice President fails to create a qualified blind trust within 80 days of Inauguration Day, OGE must bring suit. Finally, the proposed statute sets forth the maximum penalties for any official who fails to comply with these requirements. This condition precedent is a statement of the new reality that presidential candidates are no longer just career politicians, but are also entrepreneurs, investors, and individuals with diversified holdings.

i. Illustration: Proposed OGE Regulation in Action

This Article proposes the adoption of a OGE regulation that requires all presidential and vice presidential candidates to sign a condition precedent that if selected for office, within 80 days of inauguration, they will create a blind trust. To illustrate this rule, imagine it existed during the 2016 election. All candidates would have been required to contractually agree to create a blind trust and 80 days after the inauguration both President Trump and Vice President Mike Pence would be obligated to create a qualified blind trust that adheres to current federal regulations. [185] Unlike President Trump’s current trust, which is controlled by his two sons, this regulation requires that the trustee be an independent third party, with no connections to or relationship with the candidate or his financial assets. Had the regulation been in place during the 2016 election and Trump’s sons controlled the trust, OGE would sue Trump in the United States District Court for the District of Columbia for a willful and knowing violation of the agreed upon condition precedent.

A President like Trump has both liquid assets and his brand name—Trump. Some critics of blind trusts are concerned about the inability to forget what is placed into it and the complexity of putting your “identity” into a blind trust—e.g., Trump’s company is built on his name.[186] Complexity, however, does not equate to impossibility; candidates would be aware of the requirements and have the campaign cycle plus 80 days to consult with financial experts, if necessary. While admittedly a candidate upon placing their assets in a blind trust does not then suffer from amnesia and forget what they previously held, the candidate would have no control or knowledge of the inner workings of any current business holdings.

C. Counter argument: Takings Claim  

One potential critique of this proposal is that a regulation requiring candidates to place financial assets into a blind trust is equivalent to a regulatory taking. The Fifth Amendment and its Takings Clause prevents government action that infringes on private property without just compensation.[187] The Takings Clause’s protection of individual’s property encompasses more than just physical takings. In Penn Central Transportation Company v. City of New York [188], The Supreme Court looked to the “economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations.” [189]

In Pennsylvania Coal Co. v. Mahon,[190] the Supreme Court explained that physical possession was not necessary—intensive regulation could also amount to a taking.[191] If the interference causes a total loss of freedom to use the property, it is the equivalent of a physical possession—i.e., a taking.[192] Yet short of complete interference it is unclear what constitutes a compensable taking.[193] The ambiguity in this analysis has led to the government only needing to satisfy a broad general public welfare requirement by asserting a somewhat reasonable connection between the condition and advancing the general public welfare.[194]

Under the current interpretation of public welfare, it is extremely unlikely that the requirement of a blind trust for an individual who decides to run for office constitutes a regulatory taking. This is because the regulation of these assets, for the duration of the candidate’s term, advances the public welfare by helping remove any self-interested decision-making. The government would, also, not be “taking” the assets, rather an independent trustee appointed by the candidate becomes responsible.[195] Because the trustee would be generating income comparable to what the candidate would have been making, it is hard to see how requiring a blind trust would be the equivalent of a regulatory taking.

D. Why the Proposed Statute is More Efficient Than the Alternatives

This proposed regulation is not the only solution to prevent decision-making that is tainted by self-interest. This section explains why this proposal is superior to the commonly suggested alternative conflict of interest solutions—a constitutional amendment, impeachment, or the use of special counsel.

i. Constitutional Amendment

As previously mentioned, some critics suggest that subjecting the President to conflicts of interest laws violate the separation of powers principle.[196] To avoid all suggestions of separation of powers issues, the Constitution could be amended to require Presidents to remove their conflicts of interests, thereby eliminating any suggestion that Congress was overstepping its power. But amending the Constitution to combat conflicts of interest is unlikely to be successful. Article V requires two-thirds of both the house and senate just to propose a law and then three-fourths of the states still must ratify the amendment for it to be successful.[197] Alternatively, a convention called for by two-thirds of the state legislatures may propose an amendment and three-fourths of the states must approve it.[198] In over 220 years, more than 11,000 amendments have been proposed but only 27 have been ratified.”[199] With the current political climate and increased outcry and media attention of conflicts of interest it is imperative that the current federal ethics laws change. But the past has made it clear: “constitutional amendments have not been an important means of changing the constitutional order.”[200]

ii. Congress Takes Charge

Rather than attempt the lengthy and almost impossible process of amending the Constitution, Congress could use its impeachment powers to dissuade potential candidates from retaining any financial interests that may cause a conflict. Although Congress cannot create additional requirements for the President, it is unlikely that expanding federal conflict law to them would be a constitutional violation.[201] For example, during the Civil War Congress enacted financial conflict of interest statutes that did not exempt the President.[202] Even after this statute was amended to exempt the President, for the past forty years every President has chosen to utilize a blind trust or the equivalent.[203] Clearly, expanding a financial conflict law to the President would not necessarily impede his ability to fulfill his constitutional duties. The question, therefore, becomes: how can Congress expand conflict of interest laws to the President without violating the separation of powers principle?

Congress could use its impeachment power as an incentive for Presidents to sever their conflicts of interest. “The president, vice-president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”[204] However, the founders did not clarify what constituted “high crimes and misdemeanors” and if these crimes are required to be against the state.[205] the auto insurance lobby stands to come out financially neutral if not positive: insurers do not bear the cost of technology, but benefit from decreased payouts due to the technology’s use. If insurers adjust premiums to match this decreased cost proportionately, they are no better off; but if they do so to a lesser degree than that by which costs fall, their margins should increase. It is no wonder that other anti-drunk driving measures have earned the support of insurance companies. During the Clinton impeachment, Republicans submitted that Clinton’s “abuse of trust or bringing ill repute on the presidency” and perjury were sufficient reasons for impeachment.[206] Thirteen constitutional law scholars, at the House Committee hearing, argued that Clinton’s alleged conduct did not rise to the level of “high crimes and misdemeanors” because it did not involve the “derelict exercise of executive powers” but rather just private conduct.[207] Ultimately Clinton was not removed from office, but this does not mean that the allegations were not proper for impeachment.

Some commenters proffer that the constitutional ban on accepting payments from foreign officials along with United States anti-corruption laws against bribery could be used as a justification for an impeachment proceeding.[208] Impeachment, however, is unpredictable. For example, Trump’s hotels are all over the globe and receive money and business from various foreign nationals.[209] These payments could be seen as bribes[210] because they create a concern that Trump’s foreign policy decisions will be influenced by these patrons.[211] But even if a conflict of interest were found to be a “high crime or misdemeanor,” impeachment would not be a predictable means of ensuring that all Presidents would be held accountable as impeachment is both political and legal.[212] Impeachment is discretionary and if Congress is controlled by the same party as the current administration, it is unlikely an impeachment proceeding would achieve the requisite votes.[213]

iii. The Executive Investigates

When the House and Senate are controlled by the present administration it can be easy to imagine situations where certain Presidents would be allowed to escape financial conflict of interest regulations, while others would not. To avoid the suspicion of bias, special counsel[214] could be appointed to investigate Presidents who have potential conflicts of interest. Special counsel is generally appointed by the Attorney General, a member of the executive branch who is appointed by and can also be removed by the President.[215] In the past, United States attorneys of the same party as the defendant or President who appointed them have brought prosecutions against them.[216] Nonetheless, some of the biggest cases were frustrated by the conflict of interest that exists when the Department of Justice investigates and prosecutes the executive branch.[217]

Special counsel have a history of encountering uncooperative Presidents.[218] In 2017 the FBI investigated allegations that Russia interfered in the 2016 election. Shortly thereafter, Trump fired the director of the FBI, James Comey,[219] and the Attorney General, Jeff Sessions, recused himself.[220] As a result, the DOJ assigned the investigation to a special counsel, Robert Mueller.[221] Trump attempted to interfere with the investigation by suggesting that Mueller and several members of his team had conflicts of interest.[222] Even the Ethics Act acknowledges the inherent conflict of interest of the Department of Justice investigating the executive branch, which can be illustrated through President Trump’s relationship with Deutsche Bank.[223] One of President Trump’s biggest lenders is Deutsche Bank, who recently reached a settlement with the Department of Justice regarding its involvement in the 2008 financial crisis.[224] Now that Trump is the head of the branch in charge of investigations such as this, every decision the Justice Department makes may be more closely scrutinized.[225] To avoid conflicts of interest the Department of Justice could, but is not required to, appoint a special counsel.[226] Although, Trump would be unable to fire this prosecutor, helping to remove bias, this individual would still report to superiors who are connected to the President.[227]

Because the Attorney General appoints the special counsel, Congress granting additional control could be seen as a power grab.[228] Similar to an expansion of § 208, special counsel also raises a concern that the President will be prevented from fully exercising his constitutional duties.[229] Justice Scalia was concerned that expanding the special prosecutor’s power would weaken the presidency by subjecting the head of the executive branch to potentially “debilitating criminal investigation.”[230] But Justice Scalia was in the minority. In Morrison v. Olson,[231] the Supreme Court held that Congress could protect a special counsel from removal by the President.[232] The Attorney General could overcome this congressional oversight only by a showing that the removal would impede the President’s “ability to perform his constitutional duties.”[233]

Recently, the majority’s decision in Morrison v. Olsen has come under fire while Scalia’s dissent has garnered supporters. In 2016, the D.C. Circuit decided PHH Corporation v. Consumer Financial Protection Bureau (“CFPB”) [234] which involved the constitutionality of restricting a President’s ability to fire an agency’s director. The court’s opinion, written by Judge Brett Kavanaugh, suggested that Morrison v. Olsen was incorrect, citing to Scalia’s dissent multiple times.[235] Judge Kavanaugh explained that “[t]he independent counsel experiment . . . ended with universal consensus that . . . Scalia had been right back in 1988 to view [it] as an unconstitutional departure from historical practice and a serious threat to individual liberty.”[236] In 2018, the D.C. Circuit reversed its 2016 decision and found that the CFPB’s structure was constitutional.[237] But Judge Kavanaugh’s opinion demonstrates that Morrison v. Olson may be losing its authority.

Even if a special counsel can investigate a President for potential conflicts of interest it is unlikely this would be effective. Archibald Cox, a special prosecutor appointed by Attorney General Elliot Richardson to investigate President Nixon’s administration, was dismissed after subpoenaing the “White House tapes.”[238] Cox was not dismissed because of his integrity or alleged partisanship, but rather for refusing to comply with the President’s wishes.[239] In fact, both Attorney General Richardson and Attorney General Ruckelshaus, who supported Cox, resigned after his proposed dismissal.[240] Congress is concerned that Trump will follow in Nixon’s footsteps and have Mueller fired. In an effort to prevent Presidents from impeding these investigation, Congress proposed two bipartisan bills[241] to provide safeguards for special counsel fired without good cause.[242] Congress’s fears are not without merit. In an interview with the New York Times, Trump entertained the prospect of firing Mueller if he investigated his and his family’s finances.[243]

Conclusion

As the 2016 presidential election demonstrates, the current legislation regarding federal conflicts of interest is inadequate. Even those who are not persuaded by this Article’s proposal cannot deny that the 2016 election made it clear that federal conflicts of interest need to be addressed. With the increasing skepticism in the federal government, it is necessary that a national policy to help overcome modern distrust of the political system is created. To help achieve this, a new ethical standard for the President and Vice President that helps manage the regulation of conflicts of interest needs to be implemented. More far-reaching legislation is essential to prevent self-interested decision-making that impacts U.S. citizens and residents. Although new laws may not prevent all conflicts of interest, the best way to remove bias from executive actions is to eliminate the most noticeable conflicts at the commencement of an administration. The reformed ethical standard must be “beyond reproach.”[244] It is crucial that effective regulation of conflicts of interest extending to the President and Vice President are created to revitalize the trust in U.S. governmental officials.

 

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[*] J.D. 2018, George Washington University

[1] The Federalist No. 68, at 459–60 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

[2] Since conflicts of interest laws apply to the President and Vice President in the same way, this Article’s reference to presidential conflicts of interest law also incorporates the Vice President.

[3] See Morgan, Lewis & Bockius LLP, Status of U.S. Federal Income Tax Returns (March 7, 2016), https://assets.donaldjtrump.com/Tax_Doc.pdf [https://perma.cc/57WZ-LWPT ]; U.S. Office of Gov’t Ethics, OMB No. 3209-0001, Executive Branch Personnel Public Financial Disclosure Report (2016).

[4] See 18 U.S.C. § 208 (2012).

[5] See Claire Hill & Richard Painter, Compromised Fiduciaries: Conflicts of Interest in Government and Business, 95 Minn. L. Rev. 1637, 1640 (2011).

[6] See, e.g. 18 U.S.C. §§ 203–208 (2012).

[7] United States v. Miss. Valley Generating Co., 364 U.S. 520, 548 (1961); see also Kevin Kelcourse, Conflicts of Interest, 26 Am. Crim. L. Rev. 713, 713 (1989).

[8] See Exec. Order No. 11,222 3 C.F.R. 306 (1964–1965), revoked Exec. Order No. 12,674, 3 C.F.R. 215 (1990) (requiring government officials to remove any “direct or indirect financial interests.”); Roger Mudd, The Place to Be: Washington, CBS, and the Glory Days of Television News,  98–99 (2008).

[9] See Kelcourse, supra note 7, at 723.

[10] The Federalist No. 10, at 131 (James Madison) (Clinton Rossiter ed., 1961).

[11] See 18 U.S.C. § 208(b)(4) (2015).

[12] Jack Maskell, Cong. Research Serv., RL31822, Entering the Executive branch of Government: Potential Conflicts of Interest With Previous Employment and Affiliation 1 (2007).

[13] See Act of Feb. 26, 1853, ch. 81, § 2, 10 Stat. 170 (codified as amended at 18 U.S.C. § 205 (2012); See Pub. L. 87-849, 76 Stat. 1126 (1962) (amending statute to exempt the President); Kathleen Clark, Congress Can and Must Restrict the President’s Financial Conflicts of Interest, N.Y. Times (Dec. 7, 2016), http://www.nytimes.com/roomfordebate/2016/12/07/can-congress-end-donald-trumps-conflict-of-interest-exemption[https://perma.cc/YBX7-EA6T]. The Ethics Reform Act of 1989 amended the Civil War conflict of interest statute to exempt the President, but Congress likely retains the power to amend it again. See id.

[14] See Loretta Santacroce, The Impact of the Ethics in Government Act of 1978, at 12 (1978).

[15] Id.

[16] Exec. Order No. 11,222, 3 C.F.R. 306 (1964–1965), revoked Exec. Order No. 12,674, 3 C.F.R. 215 (1990). Part three pertains to “special Government employees” and prohibits these employees from using their positions for private gain. Id.

[17] See id.

[18] Title IV of the Ethics in Government Act of 1978, Pub.L. No. 95-521, 92 Stat. 1855-62 (1978) (codified as amended at 5 U.S.C. §§ 401–408 (2012)). 

[19] S. Rep. No. 95-170, at 21 (1977).

[20] See Stuart C. Gilman, Law and Implementation of Ethics Systems in the United States: One Step Toward Controlling the Cancer of Corruption, LAWASIA J. 110, 114 (1998).

[21] See Office of Government Ethics, USA.Gov (last visited March 5, 2017), https://www.oge.gov/web/oge.nsf/OGE+Legislative+Proposals [https://perma.cc/LTS4-67W4].

[22] See e.g., U.S. Off. of Gov’t Ethics, Report to the President and to Congressional Committees on the Conflict of Interest Laws Relating to Executive Branch Employment (2006).

[23] H.R. Rep. No. 87-748, at 21 (1961).

[24] See 18 U.S.C. §§ 202(c), 208 (2012); Paul Blumenthal, President Trump Won’t Have to Tell CEO Trump ‘You’re Fired,’ Huffington Post (Sept. 11, 2015), http://www.huffingtonpost.com/entry/president-trump-conflict-of-interest_us_55f1eb0be4b002d5c078b44c [https://perma.cc/85S7-RGV3].

[25] Blumenthal, supra note 24.

[26] Maskell, supra note 12, at 3.

[27] See id.

[28] Jon L. Mills, The Future of Governmental Ethics: Law and Morality, 17 Dick. J. Int’l L. 405, 436 (1999).

[29] S. Rep. No. 95-170, at 22 (1977); see also 5 U.S.C. § 101(f)(1)–(2) (2015).

[30] Pub. L. 101-194, 103 Stat. 1747 (1989).

[31] See Memorandum for Richard T. Burress, Office of the President, from Laurence H. Silberman, Deputy Attorney General, Re: Conflict of Interest Problems Arising out of the President’s Nomination of Nelson A. Rockefeller to be Vice President under the Twenty-Fifth Amendment to the Constitution at 2, 5 (Aug. 28, 1974).

[32] See CRS Legal Sidebar, Conflicts of Interest and the Presidency 1 ( 2016), https://fas.org/sgp/crs/misc/conflicts.pdf [https://perma.cc/4UGA-XTKT].

[33] See id.

[34] Id.; see also Jack Maskell, Cong. Research Serv., R43186, Financial Disclosure by Federal Officials and Publication of Disclosure Reports 3–4 (2013). Congress recognizes the influential power money can have over an individual and has created various disclosure and conflicts laws affecting both candidates and elected officials. One such example is the federal campaign finance laws, requiring disclosure of certain campaign contributions that a candidate receives and spends. See All. for Justice, Applicability of the Ethics in Government Act to Federal Judges 3 (2011).

[35] The Federalist No. 71, at 432 (Alexander Hamilton) (Clinton Rossiter ed., 1961); see also John Adams, Letter from John Adams to Mercy Otis Warren, April 16, 1776, in Papers of John Adams, vol. 4, February–August 1776 (Robert J. Taylor ed. 1979), 123, 123–126 (“There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superior to all private passions.”).

[36] See Maskell, supra note 12, at 3–4.

[37] See 18 U.S.C. § 208 (2015); Buckley v. Valeo, 424 U.S. 1, 66–68 (1976); Cal. Bankers Assoc. v. Schultz, 416 U.S. 21 (1974). The Supreme Court has generally upheld campaign finance disclosure requirements to ensure transparency and accountability. See Buckley, 424 U.S. 1; Cal. Bankers Assoc., 416 U.S. 21.

[38] See S. Rep. No. 95-170, at 22 (1977).

[39] See 18 U.S.C. § 208 (2012); Employee Benefits Security Administration; Definition of the Term “Fiduciary”; Conflict of Interest Rule-Retirement Investment Advice, 81 Fed. Reg. 20945 (Apr. 8, 2016) (“Disclosure alone has proven ineffective to mitigate conflicts in advice.”); M.A.G. Capital, LLC, Advisers Act Release No. 2849 (2009); Susan P. Shapiro, Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life, 28 Law & Soc. Inquiry 87, 229 n. 216 (2003) (explaining that “[d]isclosure may not only oversimplify a complex issue but also in itself mislead, sometimes damagingly so”); Kevin P. Weinfurt et al, Disclosing Conflicts of Interest in Clinical Research: Views of Institutional Review Boards, Conflict of Interest Committees, and Investigators, 2006 J. Law, Med, & Ethics 581 (Study on impact of disclosure in clinical research, finding that it may lead to negative consequences such as “underm[ing] the trust of potential research participants.”).

[40] Org. Econ. Co-operation & Dev., Managing Conflicts of Interest in the Public Service 17 (2003).

[41] See All. for Justice, supra note 34, at 1.

[42] See id.

[43] See Maskell, supra note 12, at 9. There is a “regulatory” recusal requirement that is broader and, in certain circumstances, will extend to past financial ventures. See id.

[44] See 18 U.S.C. § 208 (2012).

[45] See 18 U.S.C. § 208(d)(2) (2012); Eric Meermann, Ethical Investing for Federal Officials, Palisades Hudson Fin. Frp. LLC (Apr. 1, 2009), http://www.palisadeshudson.com/2009/04/ethical-investing-for-federal-officials/.

[46] Meermann, supra note 45.

[47] See 18 U.S.C. § 202(c) (2012); Maskell, supra note 12, at 5.

[48] See 18 U.S.C. § 202(c) (2012) (Excludes President and Vice President); Jack Maskell, Cong. Research Serv., RS21656, The Use of Blind Trusts by Federal Officials 3 n.9 (2005). Before the exemption was adopted, the DOJ informed the Senate that a disqualification requirement could interfere with the President and Vice President’s constitutional duties. See Conflicts of Interest and the Presidency, supra note 32, at 1; All. for Justice, supra note 34, at 1. 

[49] See Conflicts of Interest and the Presidency, supra note 32, at 1.

[50] See Maskell, supra note 12, at 15.

[51] See Monica Langley, Why Donald Trump, as President Wouldn’t Face Conflict-of-Interest Laws, Wall St. J. (July 4, 2016) http://www.wsj.com/articles/why-donald-trump-as-president-wouldnt-face-conflict-of-interest-laws-1467648595 [https://perma.cc/RJW4-UY6Z]. In 2006, Henry Paulson, former Goldman Sachs Chief Executive, sold about $500 million worth of Goldman stock when appointed Treasury secretary. See id. Additionally, former New York Mayor, Michael Bloomberg, resigned from all of his board and management positions before taking office. See id.

[52] See Meermann, supra note 45. Lynn will also forfeit any unvested restricted stock that does not vest within 90 days after his confirmation. See id.

[53] See id.

[54] See id.

[55] See Senate Select Comm. on Ethics, 114th Cong., Qualified Blind Trusts 1 (Comm. Print. 2015).

[56] See id.; Communications, Q&A: Government Officials’ Blind Trusts, Open Secrets (Mar. 8, 2007), https://www.opensecrets.org/news/2007/03/qa-government-officials-blind/ [https://perma.cc/6QUN-537Y].

[57] See Conflicts of Interest and the Presidency, supra note 32, at 1.

[58] Senate Select Comm. on Ethics, supra note 55, at 2. An ideal independent trustee is a financial institution, such as a trust company or a bank that has no relationship with the trustee or his family. See id.

[59] See Meermann, supra note 42; Jennifer Wang, Why Trump Won’t Use a Blind Trust and What His Predecessors Did With Their Assets, Forbes (Nov. 16, 2106), https://www.forbes.com/sites/jenniferwang/2016/11/15/why-trump-wont-use-a-blind-trust-and-what-his-predecessors-did-with-their-assets/#29c0542729c0 [https://perma.cc/Q79U-U2XT].

[60] Meermann, supra note 42.

[61] See id.

[62] See Nicolas Rapp, Who Needs a Blind Trust?, Fortune (Oct. 22, 2012), http://fortune.com/2012/10/22/who-needs-a-blind-trust/ [https://perma.cc/66WP-FQZB].

[63] See Megan J. Ballard, The Shortsightedness of Blind Trusts, 56 U. Kan. L. Rev. 43, 45–46 (2007).

[64] See Meermann, supra note 42.

[65] See Communications, Q&A: Government Officials’ Blind Trusts, supra note 56.

[66] See Meermann, supra note 42.

[67] See id. In fact President Barack Obama’s five predecessors all used blind trusts. See id.

[68] See id.

[69] See id. While considering a presidential run, Frist stated that he sold these shares to avoid the appearance of a conflict of interest. See Gina Pace, Frist Says He’s Cooperating Fully, CBSNᴇᴡꜱ (Oct. 18, 2005), https://www.cbsnews.com/news/frist-says-hes-cooperating-fully/ [https://perma.cc/46Y4-VUPR]. The media, however, was wary of Frist’s justification and began investigating many of his prior actions, such as supporting legislation that benefited his family’s company. See Sheryl Gay Stolberg, For Frist, a Political Fortune May Be Inextricably Linked to a Financial One, N.Y. Tɪᴍᴇꜱ (Oct. 25, 2005), http://query.nytimes.com/gst/fullpage.html?res=9C07EED9103FF936A15753C1A9639C8B63&pagewanted=all [https://perma.cc/46Y4-VUPR].

[70] See Christopher Tarver Robertson, Blind Expertise, 84 N.Y.U. L. Rev. 174, 257 (2010).

[71] A qualified blind trust is subject to 5 C.F.R. § 2634 (2017) and is interpreted by the Office of Government Ethics (“OGE”).

[72] See 5 U.S.C. app. § 102 (2012). It has been the “consistent policy of the executive branch that a President should conduct himself “as if” he were bound by this financial conflict of interest law.” Letter from Walter M. Shaub, Jr., Dir. of the United States Office of Gov’t Ethics, to Thomas R. Carper, Comm. on Homeland Sec. and Governmental Affairs (Dec. 12, 2016), available at https://www.oge.gov/web/oge.nsf/Congressional%20Correspondence/092B59EFD6EC27608525808800724288/$FILE/Carper%20response.pdf?open [https://perma.cc/KMX4-RTWN].

[73] See e.g., Ashley C. Allen, Report: The 10 Richest U.S. Presidents, USA Today (Feb. 15, 2014) http://www.usatoday.com/story/money/business/2014/02/15/10-richest-presidents/5514567/ [https://perma.cc/QZR7-4ZJA]; Michael B. Sauter, Ashley C. Allen, & Douglas A. McIntyre, The Net Worth of the American Presidents: Washington to Obama, 24/7 Wall St. (May 17, 2010), http://247wallst.com/banking-finance/2010/05/17/the-net-worth-of-the-american-presidents-washington-to-obama/ [https://perma.cc/ZH27-4K9E].

[74] Note, American Slavery and the Conflict of Laws, 71 Colum. L. Rev. 74, 79 (1971).

[75] See Carl Cavanagh Hodge & Cathal J. Nolan, U.S. Presidents and Foreign Policy: From 1789 to the Present 102 (2007); Aaron Schwabach, Thomas Jefferson, Slavery, and Slaves, 33 T. Jefferson L. Rev. 1, 3, 36 (2010). By 1743, the year of Jefferson’s birth, the Virginia legislature had determined that slaves were “real estate.” See A. Leon Higginbotham, Jr., In the Matter of Color: Race & the American Legal Process 52 (1978).

[76] See Allen, supra note 73. Presidents Buchanan, Lincoln, Grant, Hayes, and Garfield had “modest net worths” and did not have the means to live as they did during their presidency. See id.

[77] See id. Herbert Hoover owned mining companies where he made millions of dollars. See Ashley C. Allen, The 5 Richest and 5 Poorest U.S. Presidents, MSN (Feb. 13, 2014), http://www.msn.com/en-us/money/savingandinvesting/the-5-richest-and-5-poorest-us-presidents/ss-AA9mzvu [https://perma.cc/KC66-BSQL].

[78] See Agustino Fontevecchia, Forbes’ 2016 Presidential Candidate Wealth List, Forbes (Sept. 29, 2015), http://www.forbes.com/sites/afontevecchia/2015/09/29/forbes-2016-presidential-candidate-net-worth-list/#5d0ad79e435d; Allen, supra note 73. For example, the Kennedys’ wealth was derived from Joseph Kennedy’s business and Theodore Roosevelt, Franklin D. Roosevelt, John F. Kennedy, and both Bushes also inherited a considerable amount of their money. See Agustino Fontevecchia, Forbes’ 2016 Presidential Candidate Wealth List, Forbes (Sept. 29, 2015), http://www.forbes.com/sites/afontevecchia/2015/09/29/forbes-2016-presidential-candidate-net-worth-list/#5d0ad79e435d [https://perma.cc/P2SW-M7XY].

[79] See Emily Atmore, Unprecedented: President Trump’s Divided Loyalties, Uɴɪᴠ. Mɪɴɴ. L. Rᴇᴠ. (Feb. 1, 2017), http://www.minnesotalawreview.org/2017/02/unprecedented/#post-2273-footnote-2 [https://perma.cc/5USA-6TTE].

[80] United States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961).

[81] Roger Cohen, The Age of Distrust, N.Y. Times (Sept. 19, 2016), http://www.nytimes.com/2016/09/20/opinion/the-age-of-distrust.html [https://perma.cc/UY2N-5WX3]; Jay Cost, The Politics of Distrust, Wall St. J. (Oct. 16, 2015), http://www.wsj.com/articles/the-politics-of-distrust-1445015969 [https://perma.cc/8PX7-LAQR]; John Herbers, Full Disclosure is Now a Family Affair, N.Y. Times (Aug. 19, 1984), http://www.nytimes.com/1984/08/19/weekinreview/full-disclosure-is-now-a-family-affair.html [https://perma.cc/U2ZD-P4Y3].

[82] Caleb Melby, Balcki Milgliozzi & Michael Keller, Trump’s Immigration Ban Excludes Countries With Business Ties, Bloomberg Politics (Mar. 6, 2017), https://www.bloomberg.com/graphics/2017-trump-immigration-ban-conflict-of-interest/ [https://perma.cc/MSA3-AEE7]. For example, both Turkey (where the Trump Organization owns two “luxury towers” which brought in around $5 million in 2016) and the United Arab Emirates (where the Trump Organization has a licensing and management deal for a golf course and villas) are absent from the list. See id. On March 6, 2017, Trump signed an executive order banning immigration from several countries in the Middle East. Interestingly, Turkey (where the Trump Organization owns two “luxury towers” which brought in around $5 million in 2016) and the United Arab Emirates (where the Trump Organization has a licensing and management deal for a golf course and villas) are absent from the Order. See id.

[83] See Tom Hamburger, Romney Using Ethics Exception to Limit Disclosure of Bain Holdings, Wash. Post (Apr. 5, 2012), https://www.washingtonpost.com/politics/romney-using-ethics-exception-to-limit-disclosure-of-bain-holdings/2012/04/05/gIQARcVmxS_story.html [https://perma.cc/2VYQ-QMCA].

[84] See id.; David Corn, Mitt Romney Has a Huge New Conflict-of-Interest Problem, Mother Jones (Jan. 16, 2015), http://www.motherjones.com/politics/2015/01/mitt-romney-new-private-equity-problem-solamere-capital [https://perma.cc/5JZL-RCUY]; Conflicts of Interest and the Presidency, supra note 32, at 1.

[85] See Todd S. Purdum, An Age Old Ruse, Vanity Fair (July 12, 2012), https://www.vanityfair.com/news/2012/07/mitt-romney-age-old-ruse-blind-trust [https://perma.cc/5W6N-BHQR]; Matthew Mosk, Mitt Romney’s Blind Trust Not So Blind, ABC News (Dec. 19, 2011), http://abcnews.go.com/Blotter/mitt-romneys-blind-trust-blind/story?id=15188063 [https://perma.cc/7QXQ-9DH8].

[86] See Louis Jacobson, Chris Matthews Says Cheney Got $34 Million Payday From Halliburton, PolitiFact (May 24, 2010), http://www.politifact.com/truth-o-meter/statements/2010/may/24/chris-matthews/chris-matthews-says-cheney-got-34-million-payday-h/ [https://perma.cc/Z7HE-BTER]; Blumenthal, supra note 24; Richard James DeSocio, Rockefellerocracy: Kennedy Assassinations, Watergate and Monopoly of the “Philanthropic” Foundations 52 (2013).

[87] See DeSocio, supra note 86.

[88] In 1974, following Richard Nixon’s resignation over the Watergate Scandal, Gerald R. Ford became President and appointed Nelson Rockefeller as his Vice President.

[89] See Herbers, supra note 81. Rockefeller’s potential conflicts included large donations to members of Congress, state, and national officials. See also Letter from Nelson A. Rockefeller to Senator Howard W. Cannon, Chairman of the Senate Comm. on Rules and Admin. 3—6 (Oct. 11, 1974) (on file with the Gerald R. Ford Presidential Library); Akhil Reed Amar & Vikram David Amar, Essay, Is the Presidential Succession Law Constitutional?, 48 Stan. L. Rev. 113, 129 (1995); Joel K. Goldstein, Taking From the Twenty-Fifth Amendment: Lessons in Ensuring Presidential Continuity, 79 Fordham L. Rev. 959, 973 (2011). Rockefeller also owed more than $900,000 in taxes and his family’s interests were so large that a lot of public policy decisions would no doubt affect his family’s wealth. See Letter from Nelson A. Rockefeller to Senator Howard W. Cannon, supra at 1.

[90] See Goldstein, supra note 89, at 972.

[91] See David E. Rosenbaum, A Closer Look at Cheney and Halliburton, N.Y. Times (Sept. 28, 2004), http://www.nytimes.com/2004/09/28/us/a-closer-look-at-cheney-and-halliburton.html [https://perma.cc/KZV4-Z8MD]; see also Brett Deforest Maxfield, Ethics, Politics and Securities Law: How Unethical People are Using Politics to Undermine the Integrity of Our Courts and Financial Markets, 35 Ohio N.U. L. Rev. 243, 262 (2009).

[92] See Rosenbaum, supra note 91.

[93] President Obama recognized the dangers of no-bid contracts; he stated “[e]xcessive reliance by executive agencies on sole-source contracts . . . create[] a risk that taxpayer funds will be spent on contracts that are wasteful, inefficient, [and] subject to misuse.” See Sharon Weinberger, Windfalls of War: Pentagon’s No-Bid Contracts Triple in 10 Years of War (Aug. 29, 2011), https://www.publicintegrity.org/2011/08/29/5989/windfalls-war-pentagons-no-bid-contracts-triple-10-years-war [https://perma.cc/ZCC7-L42G].

[94] See Angelo Young, And the Winner for the Most Iraq War Contracts Is. . . KBR, with $39.5 Billion in a Decade (Mar. 19, 2013), http://www.ibtimes.com/winner-most-iraq-war-contracts-kbr-395-billion-decade-1135905 [https://perma.cc/4CXA-CJUL]; Angie Drobnic Holan, Halliburton, KBR, and Iraq War Contracting: A History So Far (June 9, 2010), http://www.politifact.com/truth-o-meter/statements/2010/jun/09/arianna-huffington/halliburton-kbr-and-iraq-war-contracting-history-s/ [https://perma.cc/C62Z-6FV2]; Rosenbaum, supra note 91. Cheney, through his stock in Halliburton, received $350,000 while in office. See Naomi Klein, Bomb Before You Buy: The Economics of War, 2 Seattle J. Soc. Just. 331, 336 (2004).

[95] See H.R. Res. 333, 110th Cong. (2007); Dmitry Barn, Making Appearances Matter: Recusal and the Appearance of Bias, 2011 BYU L. Rev. 943, 943 (2011).

[96] H.R.Res. 333, 110th Cong. (2007); CQ Transcript Wire, Kucinich Introduces Impeachment Articles Against Cheney, Wash. Post (Apr. 24, 2007). On November 6, 2007, after months of not being addressed by the House Judiciary Committee, Kucinich reintroduced the impeachment as a new resolution, which expired with the end of the 110th Congress, thus allowing Cheney to avoid impeachment. See H.R.Res. 799, 110th Cong. (2007); H.R.Res. 333, 110th Cong. (2007) (all legislation not enacted at the end of the 110th Congress was cleared); Lauren Kornreich, Third Time’s Not the Charm for Kucinich, CNN Pol. Ticker (Nov. 6, 2007), http://politicalticker.blogs.cnn.com/2007/11/06/third-times-not-the-charm-for-kucinich/comment-page-8/ [https://perma.cc/TJT5-5SWJ].

[97] See Blumenthal, supra note 24; Andrew Giambrone, Trump on D.C. Statehood: “I Have a Conflict of Interest,” City Paper (Aug. 16, 2015), http://www.washingtoncitypaper.com/news/city-desk/blog/13069849/trump-on-d-c-statehood-i-have-a-conflict-of-interest [https://perma.cc/MUM9-RY54].

[98] Interview by Chuck Todd with Donald Trump, Presidential Candidate, in Washington, D.C. (Aug. 16, 2015), http://www.nbcnews.com/meet-the-press/meet-press-transcript-august-16-2015-n412636 [https://perma.cc/HK46-WBAY].

[99] Susanne Craig & Eric Lipton, Trump’s Plans on Business May Fall Short, N.Y. Times (Jan. 11, 2017), https://www.nytimes.com/2017/01/11/us/politics/trump-organization-business-conflicts.html [https://perma.cc/3CSN-TJH5]; see also Aaron Blake, Donald Trump’s questionable ‘Blind Trust’ Setup Just Got More Questionable, Wash. Post (Nov. 11, 2016), https://www.washingtonpost.com/news/the-fix/wp/2016/11/11/donald-trumps-questionable-blind-trust-setup-just-got-more-questionable/?utm_term=.960b96efe972 [https://perma.cc/MZG6-YHC5]; Editorial, Trump’s Not-So-Blind Trust Fails Ethical Standards, Boston Globe (Nov. 18, 2016), https://www.bostonglobe.com/opinion/editorials/2016/11/18/trump-not-blind-trust-fails-ethical-standards/9LvLgGokNwsGVVgWjJuJfJ/story.html [https://perma.cc/34QC-Z3VF]; Kurt Eichenwald, Donald Trump’s ‘Blind Trust’ Plan Makes No Sense, Newsweek: The Scoop (Sept. 20, 2016), http://www.newsweek.com/2016/09/30/donald-trump-blind-trust-foreign-business-deals-500398.html [https://perma.cc/F2WZ-W4RF]; Nicholas Fandos & Eric Lipton, Donald Trump Shouldn’t ‘Put His Children Out of Work,’ Giuliani Says, N.Y. Times (Nov. 13, 2016), https://www.nytimes.com/2016/11/14/us/politics/donald-trump-shouldnt-put-his-children-out-of-work-giuliani-says.html [https://perma.cc/XN7Q-YEUG]; Darren Samuelsohn, Trump’s Kids to Run Businesses Via ‘Blind Trust,’ Trump Attorney Says, Politico (Nov. 10, 2016), http://www.politico.com/story/2016/11/trump-children-business-blind-trust-231179 [https://perma.cc/XN7Q-YEUG].

[100] See Blake, supra note 99; Glenn Thursuh & Maggie Haberman, Jared Kushner Named Senior White House Adviser to Donald Trump (Jan. 9, 2017), https://www.nytimes.com/2017/01/09/us/jared-kushner-senior-adviser-white-house-trump.html [https://perma.cc/34VL-RBNE]. A further issue with Trump’s involvement in the vetting process may arise when a cabinet official is also a family member, such as the Senior White House Advisor, Jared Kushner, who is Trump’s son-in-law. See Blake, supra note 99.

[101] See Laurel Raymond, Trump Has Violated His Oath to the Constitution, Think Progress, https://thinkprogress.org/trump-constitution-first-day-office. [https://perma.cc/7PS2-FSK2].

[102] See Spotlight on the Emoluments Clause, Suffolk U. L. Rev. Online (Feb. 8, 2017), http://suffolklawreview.org/spotlight-on-the-emoluments-clause/ [https://perma.cc/PVV7-BACH].

[103] See Eichenwald, supra note 99; Russ Choma, Donald Trump is Doing Business with a Controversial Azerbaijani Oligarch, Mother Jones (July 29, 2015), http://www.motherjones.com/politics/2015/07/donald-trump-azerbaijan-anar-mammadov [https://perma.cc/N762-NYUV]; Curt Devine, Drew Griffin & Nelli Black, Trump’s Business Partners Include Controversial Foreign Developers, CNN (Dec. 17, 2016), http://www.cnn.com/2016/12/15/politics/donald-trump-businesses-around-the-world/ [https://perma.cc/63GK-6J6J]; Jack Moore, Trump Organization Struck Deal with Azerbaijani Oligarch Tied to Iran’s Revolutionary Guard: Report, Newsweek (Mar. 6, 2017), http://www.newsweek.com/trump-organization-struck-deal-azerbaijani-oligarch-tied-irans-revolutionary-564387 [https://perma.cc/RF5S-KU3T].

[104] See Bill Clinton, Empowering People to Build Better Futures for Themselves, Their Families, and Their Communities, Clinton Found. (Aug. 22, 2016), https://www.clintonfoundation.org/blog/2016/08/22/empowering-people-build-better-futures-themselves-their-families-and-their [https://perma.cc/952L-FTDP].

[105] See Louis Nelson, What You Need to Know About Clinton and the Uranium One Deal, Politico (Nov. 14, 2017), https://www.politico.com/story/2017/11/14/hillary-clinton-uranium-one-deal-russia-explainer-244895 [https://perma.cc/J92Q-ZSR7].

[106] See id.

[107] See id.

[108] 18 U.S.C. § 208(a) (2012). There are other statutes that place limits on the executive branch such as 18 U.S.C. § 203, which prohibits execute branch employees from receiving any compensation for other matters before the executive branch. See 18 U.S.C. § 203 (2012).

[109] United States v. Miss. Valley Generating Co., 364 U.S. at 520, 548 (1961).

[110] United States v. Gorman, 807 F.2d 1299, 1303 (6th Cir. 1986).

[111] See Kevin Kelcourse, Conflicts of Interest, 26.3 Am. Crim. L. Rev. 713, 724 (1996).

[112] See id.

[113] See Justin Stern, A “Huge” Conflict of Interest? The Impact and Influence of President-Elect Trump’s Business Holdings, U. Miami L. Rev.: UMLR Insights (Dec. 2, 2016), http://lawreview.law.miami.edu/huge-conflict-interest-impact-influence-president-elect-trumps-business-holdings/ [https://perma.cc/57C4-X4GD]. On November 17, 2016, Congresswoman Katherine Clark introduced a bill that would extend conflict of interest law to the President and Vice President. See Matt Stone, U.S. Rep. Clark Targets Trump with Conflict-of-Interest Bill, Bos. Herald: Herald Bulldog (Nov. 17, 2016), http://www.bostonherald.com/news/local_coverage/herald_b

[114] See Norman L. Eisen, Richard Painter, & Laurence H. Tribe, The Emoluments Clause: Its Text, Meaning, and Application to Donald J. Trump 3 (2016), https://www.brookings.edu/wp-content/uploads/sites/17/2016/12/gs_121616_emoluments-clause1.pdf [https://perma.cc/9UB2-P2JS].

[115] See Laws that Do Not Apply to Congress (last visited Apr. 1, 2017), http://archives.democrats.rules.house.gov/Archives/jcoc2ai.htm [https://perma.cc/M5TS-4XQW]; Roger Parloff, Why Aren’t Donald Trump’s Epic Conflicts of Interest Illegal?, Fortune (Nov. 15, 2016), http://fortune.com/2016/11/15/donald-trump-conflicts-interest-ethics/ [https://perma.cc/QX44-3M4E]. Some scholars argue that the President’s position is unique and he cannot be prosecuted while in office without first being removed either by “impeachment, the voters, or the expiration of his term”—but this lacks both constitutional and legal authority. Susan Low Bloch, Can We Indict a Sitting President?, foreword to Ought a President of the United States Be Prosecuted, 2 Nexus 7 (1997); see also George E. Danielson, Presidential Immunity from Criminal Prosecution, 63 Geo. L. J. 1065, 1065 (1975). While the Constitution confers limited immunity from arrest to Senators and Representatives, no such privilege exists for the President. See id. In fact, the framers considered a presidential immunity provision, but rejected any such privilege. See id. According to Charles Pinckney, a delegate to the Constitutional Convention, “the framers expressly rejected any presidential privilege from arrest ‘because of [the framer’s] knowledge of the abuses that took place under the immunity from prosecution that existed in England.’” See id. The Supreme Court has, however, found that the President is protected from certain types of legal suites while in office. This includes immunity from civil liability stemming from his official acts. See Franklin v. Massachusetts, 505 U.S. 788, 801 (1992) (holding that the Administrative Procedure Act does not apply to the President); Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982) (extending absolute immunity to the President from civil damage suits relating to official acts). But see Clinton v. Jones, 520 U.S. 681, 701–08 (1997) (refusing to extend presidential immunity from civil damage actions to misconduct that was not connected to official duties).

[116] Monica Langley, Why Donald Trump, as President, Wouldn’t Face Conflict-of-Interest Laws, Wall Street J. (July 4, 2016), http://www.wsj.com/articles/why-donald-trump-as-president-wouldnt-face-conflict-of-interest-laws-1467648595 [https://perma.cc/LX3T-AC85].

[117] Letter from Laurence H. Silberman, Att’y Gen., to the Chairman, Senate Comm. on Rules and Admin. (Sept. 20, 1974) (quoting Special Comm. on the Federal Conflict of Interest Laws, Ass’n of the Bar of the City of N.Y., Conflict of Interest and Federal Service (Bar Association Report), 1960 16–17, https://fas.org/irp/agency/doj/olc/092074.pdf [https://perma.cc/4UMW-MTRS].

[118] See David Orentlicher, Conflicts of Interest and the Constitution, 59 Wash. & Lee L. Rev. 713, 722 (2002).

[119] See supra Part I.A. It was not until a 1962 amendment that Congress’s financial conflict of interest statute explicitly exempted the President. See Clark, supra note 13.

[120] United States v. Miss. Valley Generating Co., 364 U.S. 520, 562 (1961).

[121] See Jonathan L. Entin, Congress, The President, and the Separation of Powers: Rethinking the Value of litigation, 43 Admin. L. Rev. 31, 31 (1991).

[122] A pure doctrine of separation of powers assigns unique functions to each branch and prohibits intrusion upon the functioning of any other branch. See id. at 36.

[123] See id. 

[124] See Letter from Laurence H. Silberman, Att’y Gen., to Hon. Howard W. Cannon, Chairman of Senate Comm. Rules and Admin. (Sept. 20, 1974), https://fas.org/irp/agency/doj/olc/092074.pdf [https://perma.cc/2WVD-6QP8].

[125] See Conflicts of Interest and the Presidency, CRS Legal Sidebar (Oct. 14, 2016), https://fas.org/sgp/crs/misc/conflicts.pdf [https://perma.cc/Z942-SXQ9].

[126] See C. Boyden Gray, Can Congress End Donald Trump’s Conflict of Interest Exemption?, N.Y. Times (Dec. 7, 2016), http://www.nytimes.com/roomfordebate/2016/12/07/can-congress-end-donald-trumps-conflict-of-interest-exemption[https://perma.cc/94W6-3GXS]. The Constitution sets out the requirements to be President, requiring a person to be a natural born citizen, at least 35 years old, and a resident within the United States for a minimum of 14 years. See id.

[127] See id.

[128] See M.C.E., Conflicts of Interest and the President: Reviewing the State of Law in the Face of a Trump Presidency, 4 Emory Corp. Governance & Accountability Rev. 47, 54 (2017), http://law.emory.edu/ecgar/content/volume-4/issue-special/essays-interviews/conflicts-president-law-trump-presidency.html [https://perma.cc/KW86-ACNL]. Unlike current bribery statutes, the Emoluments Clause does not require “the president actually take any reciprocating action to trigger the clause.” Id.

[129] See Stern, supra note 113.

[130] U.S. Const. art. I, § 9.

[131] See Stern, supra note 113. Article one, section nine is not enough to prevent conflicts, as Secretary Hillary Clinton’s foundation received tens of millions of dollars from foreign nations. See id.

[132] See  Zephyr Teachout, Trump’s Foreign Business Ties May Violate the Constitution, N.Y. Times (Nov. 17, 2016), http://www.nytimes.com/roomfordebate/2016/11/17/would-trumps-foreign-business-ties-be-constitutional/trumps-foreign-business-ties-may-violate-the-constitution [https://perma.cc/2JXW-3JVT]; Stern, supra note 113.

[133] This applies to any gifts from a foreign government. See M.C.E., supra note 128.

[134] See Eisen, Painter, & Tribe, supra note 114.

[135] See id.

[136] Id.

[137] Zephyr Teachout, Corruption in America: From Benjamin Franklin’s Snuff Box to Citizens United 2 (2014).

[138] See Cass R. Sunstein, Impeachment: A Citizen’s Guide 185–86 n.10 (2017); see also Jacob Pramuk, Two Attorneys General Sue Trump: Checks and Balances ‘Are Failing Us,‘ CNBC (June 12, 2017, 12:52 PM), https://www.cnbc.com/2017/06/12/emoluments-clause-trump-sued-by-maryland-and-dc-attorneys-general.html.

[139] Blumenthal, supra note 24.

[140] President Obama utilized a statutorily conflict-free investment. See Eisen, Painter, & Tribe, supra note 114.

[141] Id.; see also Shaub, supra note 72.

[142] See id.  

[143] See Rachel Stockman, Trump is Right, Conflict-of-Interest Rules Don’t Apply to Him, Law Newz (Nov. 23, 2016), http://lawnewz.com/high-profile/trump-is-right-conflict-of-interest-rules-dont-apply-to-him/ [https://perma.cc/N5N4-85HP]; Blumenthal, supra note 24; Richard Tofel, Emoluments Clause: Could Overturning 185 Years of Precedent Let Trump Off the Hook?, ProPublica (Dec. 13, 2016), https://www.propublica.org/article/emoluments-clause-overturning-185-years-of-precedent-let-trump-off-the-hook [https://perma.cc/BP5F-PAKC].

[144] Mr. Tillman is a lecturer in law at the National University of Ireland Maynooth.

[145] See Seth Barrett Tillman, Originalism & the Scope of the Constitution’s Disqualification Clause, 33 Quinnipiac L. Rev. 59, 98 (2014).

[146] See Stockman, supra note 143; Blumenthal, supra note 24.

[147] See id. at 100 n.103 (2014); Tofel, supra note 143 (noting that Washington never expressed his interpretation of the Emoluments Clause—Tillman is merely inferring Washington’s views from his silence). The Foreign Emoluments Clause only prohibited gifts from “any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. Both French officials were neither Kings nor Princes so the only question is if the gifts were considered from a foreign state. Marquis de Lafayette, who gave Washington the key, described the gift as “a tribute [w]hich I owe as [a] [s]on to [m]y [a]doptive father,” making it likely Washington viewed the gift from a close friend and not a French official. Letter from George Washington to the Marquis de Lafayette (Aug. 11, 1790), in 31 The Writings of George Washington 85 n.56 (John C. Fitzpatrick ed., 1939); see also Saikrishna Bangalore Prakish, Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y Sidebar 38 (2008).

[148] See Neal Katyal & Richard Caplan, The Surprisingly Stronger Case for the Legality of the NSA Surveillance Program: The FDR Precedent, 60 Stan. L. Rev. 1023, 1078 (2008); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 652 (1952) (Jackson, J., concurring) (noting that the limits on executive power are influenced by the “practical working of our Government”).

[149] See 24 Op. Att’y Gen. 116, 117 (1902).

[150] See U.S. Const. Art. I, § 9.

[151] Congress violates the separation of powers principle when an “Act prevents the Executive branch from accomplishing its constitutionally assigned functions, and only where the potential for disruption is present must it then be determined whether the impact is justified by an overriding need to promote objectives within Congress’ constitutional authority.” See Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 441–43 (1977).

[152]On the clause’s anti-corruption purpose, see Zephyr Teachout, The Anti-Corruption Principle, 92 Cornell L. Rev. 341, 361–62 (2009). Some scholars argue that the Emoluments Clause does not even extend to the President, and ask whether the Framers intended it only to apply to Congress or inferior officers. See Josh Blackman, Scalia in 1974 OLC Opinion: “Officer” in Constitution “Invariably Refers to Someone Other Than the President,“ Josh Blackman’s Blog (Dec. 22, 2016), http://joshblackman.com/blog/2017/01/11/the-originalist-analysis-about-the-emoluments-clause-from-president-elect-trumps-legal-team/. The Emoluments Clause prohibits conduct such as bribe-taking, but expanding it to all conflicts of interest is likely broader than its intended scope.

[153] See Jonathan Adler, The Emoluments Clause—is Donald Trump violating its letter or spirit?, The Volokh Conspiracy (Nov. 21, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/11/21/the-emoluments-clause-is-donald-trump-violating-its-letter-or-spirit/?utm_term=.317d7998537a#comments [https://perma.cc/VH2V-AYNQ]. Based on Supreme Court precedent, standing may exist if a private party can prove a competitor received an unlawful benefit. See Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 666 (1993) (Thomas, J.) (“When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.”).

[154] See Bernard Condon, A Look at 5 Trump Business Ties That Pose Conflicts, Associated Press (Nov. 23, 2016), https://elections.ap.org/content/look-5-trump-business-ties-pose-conflicts [https://perma.cc/2XCR-4KPB]. For more on the issues with impeachment see infra Part III.D.A.1.

[155] See id.

[156] Id.

[157] See Shaub, supra note 72.

[158] Id. at 2.

[159] See id.

[160] Id.

[161] See id.

[162] U.S. Const. Art. I, § 8, cl. 18.

[163] See Charles N. Steel & Jeffrey H. Bowman, The Constitutionality of Independent Regulatory Agencies under the Necessary and Proper Clause: The Case of the Federal Election Commission, 4 Yale J. on Reg. 363, 369 (1987).

[164] See Eisen, Painter, & Tribe, supra note 114, at 22.

[165] See Title IV of the Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1855–62 (1978); Office of Gov’t Ethics, Report to the President and to Congressional Committees on the Conflict of Interest Laws Relating to Executive Branch Employment (2006); Office of Gov’t Ethics, Report on Improvements to the Financial Disclosure Process for Presidential Nominees (2001).

[166] Office of Government Ethics, USA.Gov, https://www.usa.gov/federal-agencies/office-of-government-ethics [https://perma.cc/CMU6-8C93].

[167] See U.S. Office of Gov’t Ethics, U.S. Office of Government Ethics: Agency Profile 7–9, 11 (2005); Mission and Responsibilities, OGE.Gᴏᴠ, https://www.oge.gov/web/oge.nsf/Mission%20and%20Responsibilities [https://perma.cc/85VX-BGPA]. The Federal Election Commission has only six members, yet has exclusive jurisdiction over civil enforcement of federal campaign finance laws. See The FEC and the Federal Campaign Finance Law, http://www.fec.gov/pages/brochures/fecfeca.shtml [https://perma.cc/EY6T-5RWN].

[168] See 5 U.S.C. app. § 402. When OGE believes an official has violated the Standards of Ethical Conduct, it makes an informal recommendation to the employing agency to investigate the matter. See The Comm. on Fed. Legislation, Special Prosecutor Provision of the Ethics in Government Act of 1978, 36 Rec. Ass’n B. City N.Y. 420, 439 (1981). In the event this process is unsuccessful, OGE’s Director can then issue a nonbinding recommendation to the employing agency. See id.

[169] See id.

[170] See id.

[171] Title VI of the Ethics Act lapsed in 1999 and has now been replaced with 28 C.F.R. § 600. Section 600 provides that under certain circumstances the Attorney General may appoint Special Counsel to conduct a criminal investigation. See 28 C.F.R. § 600.1.

[172] See 5 U.S.C. app. § 402. The Ethics Act was aimed at eliminating the appearance of a conflict of interest, rather than particular crimes, thus Title VI is triggered whenever the President or Vice President is suspected of committing any non-petty federal crime. See Pub. L. No. 95-521, Title VI, 28 U.S.C. §§ 591–598; H.R. Conf. Rep. 95-1756 at 65 (1978).

[173] See The Comm. on Fed. Legis., supra note 168. At the conclusion of the investigation, the Attorney General reports to the United States Court of Appeals for the District of Columbia. See id. No special counsel will be appointed if the Attorney General’s conclusion is that the allegations are “so unsubstantiated that no further investigation is warranted. See Pub. L. No. 95-521, § 592(b). If the Attorney General concludes that further investigation is necessary or does not report to the court within 90 days, the Ethics Act requires that the court appoint a special prosecutor. See Staff of S. Comm. on Governmental Affairs, 95th Cong., Rep. on S. 555 (1977) at 52.

[174] See The Comm. on Fed. Legislation, supra note 168.

[175] The DOJ has not always retained exclusive control of selecting special counsel. Under Title VI of the Ethics in Government Act of 1978, a panel of three judges were also authorized to appoint a special counsel. See Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1824; U.S. Const. art. II, § 2, cl. 2 (“Congress may by law vest the appointment of . . . [special prosecutors], as they think proper in the president alone, in the courts of law, or in the heads of departments.”) (The Attorney General still determined when an investigation was appropriate.); Morrison v. Olson, 487 U.S. 654, 661 (1988).

[176] One of OGE’s missions is to promote transparency in the executive branch. See OGE Promotes Transparence of the Executive Branch Ethics Program, OGE.Gov, https://www.oge.gov/web/oge.nsf/Mission%20and%20Responsibilities/595FC4A06573AE7C85257EA600655862?opendocument [https://perma.cc/JCS3-DPK2].

[177] “The Federal Election Commission is an agency that was designed to fail, and at that task, at least, it has succeeded brilliantly.” Michael M. Franz, The Devil We Know? Evaluating the Federal Election Commission as Enforcer, 8 Elec. L.J. 167, 167 (2009).

[178] 52 U.S.C. § 30101 (2012).

[179] 5 C.F.R. § 2634.403 (1996).

[180] 5 C.F.R. § 2634.402 (1997)

[181] 5 U.S.C. App. § 301. (2012)

[182] See Conflicts of Interest and the Presidency supra note 32, at 2.

[183] See 18 U.S.C. §§ 207–208 (2012) which lays out the same penalties for violating federal personal financial interest statutes.

[184] The blind trust must comply with 5 C.F.R. § 2634.402 (2012).

[185] The qualified blind trust would be created in accordance with current Ethics Act guidelines.

[186] See Peter Overby, 4 Questions About Donald Trump’s Potential Conflicts of Interest If He’s Elected, NPR: Morning Edition (June 9, 2016), http://www.npr.org/2016/06/09/481351291/if-elected-president-would-trump-put-his-investments-in-a-blind-trust [https://perma.cc/AZM3-BBWF].

[187] See U.S. Const. amend. V. The Fifth Amendment is not limited to real property, but extends to tangible and intangible property as well. See James W. Ely Jr., A Breather on the Takings Clause, 82 A.B.A. J. 42, 45 (1996).

[188] 438 U.S. 104 (1978).

[189] Id. at 538–39.

[190] 260 U.S. 393 (1922).

[191] See id; Ely, supra note 187, at 44 (noting a 1995 Texas law that permits challenges to the regulation if property value is decreased by more than 25 percent); see also United States v. Dickinson, 331 U.S. 745, 748 (1947) (“Property is taken in the constitutional sense when inroads are made upon an owner’s use of it to an extent that, as between private parties, a servitude has been acquired either by agreement or in course of time.”).

[192] See Dolan v. City of Tigard, 512 U.S. 374, 384 (1994); Ely, supra note 187 at 44.

[193] See Ely, supra note 187, at 44.

[194] See Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (holding that a zoning regulation that caused a 75 percent decrease in property value was constitutional because it was not “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 84 (1980) (concluding no taking existed when a shopping center “failed to demonstrate that the ‘right to exclude others’ is so essential to the use or economic value of [its] property that the state-authorized limitation of it amounted to a taking”).

[195] See United States v. Sioux Nation Indians, 448 U.S. 371, 452 (1980); Fort Berthold Reservation v. United States, 390 F.2d 686, 693 (Ct. Cl. 1968) (reasoning that when Congress acted as both a sovereign and trustee, no compensation was due if good faith was employed).

[196] See supra Part II.B

[197] See U.S. Const. amend. V.

[198] See id.

[199] See U.S. Const. amend. XXVII; Eric Posner, The U.S. Constitution is Impossible to Amend, Slate (May 5, 2014), http://www.slate.com/articles/news_and_politics/view_from_chicago/2014/05/amending_the_constitution_is_much_too_hard_blame_the_founders.html [https://perma.cc/QEX5-893K].

[200] David A. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. L. Rev. 1457, 1459 (2001).

[201] See supra Part II.C.1.B.

[202] See supra Part II.B.

[203] See Eisen, Painter, & Tribe, supra note 114.

[204] 2 Records of the Federal Convention of 1787, at 600 (Max Farrand ed., rev. ed. 1937).

[205] See Michael J. Gerhardt, Putting the Law of Impeachment in Perspective, 43 St. Louis U. L.J. 905, 909 (1999).

[206] Neal K. Katyal, Impeachment as Congressional Constitutional Interpretation, 63 Law & Contemp. Probs. 169, 181 (2000). Clinton was impeached by the House on two charges: perjury and obstruction of justice. See Alison Mitchell, The President’s Acquittal: The Overview; Clinton Acquitted Decisively: No Majority for Either Charge, N.Y. Times (Feb. 13, 1999). He was acquitted by the Senate. See id.

[207] See Thomas R. Lee, The Clinton Impeachment and the Constitution: Introduction to the Federalist Society Panel, 1999 BYU L. Rev. 1079, 1082–83 (1999).

[208] See Teachout, supra note 137.

[209] See Stockman, supra note 143; Isaac Arnsdorf, Trump Could Keep D.C. Hotel Despite Conflict of Interest, Politico (Dec. 3, 2016), http://www.politico.com/story/2016/12/trump-could-keep-dc-hotel-despite-conflict-of-interest-232144 [https://perma.cc/5N4V-BQHJ]; Larry Buchanan & Karen Yourish, The Array of Conflicts of Interest Facing the Trump Presidency, N.Y. Times (Dec. 22, 2016), http://www.nytimes.com/interactive/2016/12/01/us/politics/trump-conflict-of-interests.html [https://perma.cc/P9CY-RN3M].

[210] It could be a stretch to view these as bribes rather than an exchange of goods for services. For example, if Trump’s hotel rooms were valued at $100 a night, it would not be a bribe, gift, or present to rent the room for $100. It is also unlikely that he would be influenced by renting the room out for $100. Although, even at $100 a night, the exchange may be seen as a bribe if Trump were to rent the room to a diplomat in exchange for political favors. It would be more concerning, however, if Trump accepted $180 a night for that same room.

[211] There is debate on what exactly constitutes a bribe. See Judy Nadler & Miriam Schulman, Gifts and Bribes, Santa Clara U. (July 1, 2016), https://www.scu.edu/ethics/focus-areas/government-ethics/resources/what-is-government-ethics/gifts-and-bribes/ [https://perma.cc/A6CF-4CKV]. To avoid a Emolument Clause issue, Trump proposed donating any profits he made from foreign governments at his hotels to the United States Treasury so that “it is the American people who profit”—however, if Trump was in violation of the Clause this would not rectify it. See Sara Begley, Donald Trump to Donate Money Foreign Governments Spend at His Hotels to U.S. Treasury, Time (Jan. 11, 2017), http://time.com/4631595/donald-trump-hotels-treasury-foreign-government/ [https://perma.cc/P5CU-SMB7] (statement by Sheri Dillon, an attorney who has worked with the Trump team to structure his assets); Darla Mercado, Trump Says He’ll Donate Some Profits to the Treasury—And So Can You, CNBC (Jan. 11, 2017), http://www.cnbc.com/2017/01/11/trump-says-hell-donate-some-profits-to-the-treasury–and-so-can-you.html [https://perma.cc/X6G6-54QA].

[212] Andrew Johnson and Bill Clinton have more than just their impeachment acquittal by the Senate in common—both of their proceedings were divided along party lines. See Keith E. Whittington, Bill Clinton Was No Andrew Johnson: Comparing Two Impeachments, 2 U. Pa. J. Const. L. 422, 424 (2000).

[213] For example the Democrats proposed a resolution that would force disclosure of Trump’s potential conflicts of interest and ties to Russia. See H.R. Res. 286, 110th Cong. (2017). The Republican-controlled House of Representatives voted down this resolution, stifling the Democrats attempt to obtain records from the Justice Department regarding Trump’s ties to Russia. See Stephen Ohlemacher, Correction: Congress-Trump Taxes Story, AP (Feb. 15, 2017), http://bigstory.ap.org/418d4c32d280412aba4f64711950b4e3 [https://perma.cc/UHM3-EKYN].

[214] Often special prosecutor, independent counsel, and special counsel are used interchangeably. All three rely on the Attorney General to initiate investigations. It should be noted, that special prosecutors and independent counsel technically refer to a now expired provision of the Ethics in Government Act of 1978. See Cynthia Brown, Cong. Research Serv., R44857, Special Counsels, Independent Counsels, and Special Prosecutors: Options for Independent Executive Investigations 1 (2017). 

[215] See Jack Maskell, Cong. Research Serv., R43112, Independent Counsels, Special Prosecutors, Special Counsels, and the Role of Congress 2 (2013). Congress may participate in creating new statutory requirements for the appointment of a special prosecutor as it did in title VI of the Ethics in Government Act of 1978. See id.

[216] See Frank M. Tuerkheimer, The Executive Investigates Itself, 65 Calif. L. Rev. 597, 602 (1977).

[217] Although special counsel conduct investigations, the Attorney General is the one who determines whether or not to begin an investigation. See Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 188, 207–08 (1960) (“The affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater.”).

[218] A special counsel’s investigation may also impact the Attorney General. For example, Trump has criticized sessions ever since he recused himself from the Russia campaign. After Sessions appointed Mueller, Trump accused the Attorney General of “disloyalty,” leading Sessions to offer his resignation (which ultimately was not accepted). See Michael S. Schmidt & Maggie Haberman, Trump Humiliated Jeff Sessions After Mueller Appointment, N.Y. Times (Sept. 14, 2017), https://www.nytimes.com/2017/09/14/us/politics/jeff-sessions-trump.html [https://perma.cc/KBN9-B7DB].

[219] Comey refused to drop the investigation into Trump’s former national-security adviser Michael Flynn.

[220] Sessions cited involvement with the Trump campaign. See Ryan Teague Beckwith, Read Attorney General Jeff Sessions’ Remarks on Recusing Himself, Time (Mar. 2, 2017), http://time.com/4689524/jeff-sessions-recuse-russia-trump-transcript/ [https://perma.cc/5MX9-5ZJX].

[221] See Abby Phillip & Sari Horwitz, Trump Blasts AG Sessions for Recusing Himself From the Russia Probe, Wash. Post (July 19, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/07/19/trump-blasts-ag-sessions-for-recusing-himself-from-the-russia-probe/?utm_term=.7d07ce63f48e [https://perma.cc/C2ZH-FR27].

[222] Trump suggested that Mueller had a conflict of interest because Mueller interviewed for Comey’s job days before his appointment as special counsel. See Carrie Johnson, Special Counsel Robert Mueller Had Been on White House Shortlist to Run FBI, NPR (June 9, 2017), https://www.npr.org/2017/06/09/532286723/special-counsel-robert-mueller-had-been-on-white-house-short-list-to-run-fbi?live=1 [https://perma.cc/5K96-J2B4]; Graham Lanktree, New Legislation to Protect Russia Investigation’s Robert Mueller from Trump, Newsweek (Sept. 15, 2017), http://www.newsweek.com/new-law-protect-russia-investigations-robert-mueller-trump-665565 [https://perma.cc/Z2RY-UNGX]. Several members of Muller’s team were accused of having ideological conflicts of interest. These potential conflicts include donations to the Obama and Clinton campaigns and previously representing the Clinton Foundation. See Scott Shane & Charlie Savage, Muller, Known for Being Above the Fray, Is Now in the Thick of It, NY Times (June 15, 2017), https://www.nytimes.com/2017/06/15/us/politics/robert-mueller-special-counsel.html [https://perma.cc/7AUY-UHYT].

[223] See H. Rep. 115-28 (2017).

[224] See Jackie Wattles, Deutsche Bank Finalizes $7.2 Billion Settlement, CNNMoney (Jan. 17, 2017), http://money.cnn.com/2017/01/17/news/economy/deutsche-bank-fine/ [https://perma.cc/YCJ5-A8HX].

[225] See Chris Arnold, DOJ’s Big Bank Settlements Remove Potential Conflict of Interest for Trump, NPR (Dec. 23, 2016), http://www.npr.org/sections/thetwo-way/2016/12/23/506720254/dojs-big-bank-settlements-remove-potential-conflict-of-interest-for-trump [https://perma.cc/S3DX-L9CK].

[226] See AP, Trump Says “The President Can’t Have a Conflict of Interest” – Is He Right?, CBS (Nov. 23, 2016), http://www.cbsnews.com/news/what-trump-meant-when-he-said-the-president-cant-have-a-conflict-of-interest/ [https://perma.cc/HR2D-ZG6H].

[227] See S. Rep. No. 95-170, at 21 (1977), at 2; Watergate Special Prosecution Force Report (1975). If upon completion of a preliminary investigation it is determined further investigation is necessary, the matter is referred to the court for a special prosecutor to be assigned. See S. Rep. No. 95-170, at 2.

[228] See Morrison v. Olson, 487 U.S. 654, 711 (1988) (Scalia, J., dissenting).

[229] See supra Part II.C.1.

[230] See Morrison, 487 U.S. at 711 (Scalia, J., dissenting).

[231] Id.

[232] See id. at 691.

[233] Id.

[234] 839 F.3d 1 (D.C. Cir. 2016) (finding the CFPB’s leadership structure unconstitutional). In 2018, the D.C. Circuit reversed its 2016 decision and found that the CFPB’s structure was constitutional. 

[235] See id.

[236] Id. at 20.

[237] See PHH Corp. v. Cons. Fin. Protection Bureau, 881 F.3d 75, 79 (D.C. Cir. 2018) (“The CFPB’s authority is not of such character that removal protections of its Director necessarily interferes with the President’s Article II duty or perogative.”).

[238] See Abraham Dash, The Office of Independent Counsel and the Fatal Flaw: “They are Left to Twist in the Wind,” 60 Md. L. Rev. 26, 33 (2001).

[239] See id.

[240] See id.

[241] The Special Counsel Independence Protection Act, introduced by Senators Lindsey Graham (R-S.C.) and Cory Booker (D-N.J.), and The Special Counsel Integrity Act, proposed by Senators Chris Coons (D-Del.) and Thom Tillis (R-N.C.), would permit special counsel to challenge their removal in federal court. See S. 1735, 115th Cong. (hearing held in Senate’s Committee on the Judiciary, Sept. 26, 2017); S. 1741, 115th Cong. (hearing held in Senate’s Committee on the Judiciary, Sept. 26, 2017).

[242] A special counsel may only be removed “by the personal action of the Attorney General and only for good cause.” See 28 C.F.R. § 600.7(d) (2012).

[243] See Excerpts From the Time’s Interview With Trump, N.Y. Times (July 19, 2017), https://www.nytimes.com/2017/07/19/us/politics/trump-interview-transcript.html [https://perma.cc/CEM9-3FVZ]. (Trump answered affirmatively when asked if looking at his “finances and [his] family finances, unrelated to Russia . . . [was] a red line.” Trump elaborated that this would constitute a “violation” by Mueller.).

[244] Conflicts of Interest Laws, 15 Rec. Ass’n B. City N.Y. 180, 196 (1960).