Donald Trump Won't Divest From His Business Before Entering Office

Despite pronouncements to the contrary, it now seems that President-elect Donald J. Trump will not completely separate himself from his business before he takes office.

According to Monica Langley of The Wall Street Journal, the Trump Organization will not be selling off its global real-estate holdings for fear that doing so might cause either a fire sale or a bidding war. As Trump has said repeatedly, though never fully explicated, he will be stepping down from his leadership role in his business empire and leaving it to his adult sons, Donald Jr. and Eric, who will stop attending their father’s meetings once he takes office in January. However, the president-elect will retain his ownership stake in the company.

That Trump has chosen not to divest comes as little surprise based on several of his previous statements on the topic. In a meeting with writers and editors from The New York Times, Trump alluded to the difficulty of selling off his holdings due to the illiquid nature of his assets. As a result, numerous experts, including Norm Eisen and Richard Painter, who served as the ethics lawyers for the Obama and Bush administrations, respectively, and Laurence Tribe, a constitutional-law professor at Harvard Law School, have already weighed in on the president-elect’s decision not to divest. According to them, simply stepping down from a leadership position—indeed, anything short of complete divestment—does not mitigate concerns regarding conflicts of interest. As long as Trump is profiting off of his business, they say, Trump will be in continual violation of the Constitution’s Emoluments Clause, which explicitly forbids the president from receiving gifts from foreign leaders—something that will effectively be happening any time a foreign government deals with the Trump Organization, whether by booking a room in one of its hotels or by easing the development of future properties in their own countries.

Why is Trump so reluctant to divest? Josh Marshall of Talking Points Memo has suggested that perhaps it’s because doing so would be financially disastrous for him. As has been noted elsewhere, Trump and his company are currently hundreds of millions of dollars in debt to various financial institutions, with Trump himself personally liable for tens of millions; selling off his businesses might so disrupt his cash flow that he would no longer be able to meet his obligations.

Irrespective of Trump’s reasons not to divest, the president-elect’s decision leaves him open to continued scrutiny regarding his conflicts of interest. He may not actively involve himself in his company, but Trump will still be making money off of a multinational, multi-billion-dollar corporation while in office; simply leaving the decisions to his sons does little to put the requisite distance between the president-elect and his source of profit. The question of whether his business interests will influence his policy will remain until he is able to prove otherwise. The following guide details the specific instances presenting Trump with a conflict known to date.

The Background

Since his election, an ever-increasing level of attention has been paid to theunprecedented conflicts of interest that President-elect Donald J. Trump seemslikely to bring with him when he assumes office. His responses to the concerns have been varied and, at times, contradictory. His first statement on the subject, which came via Twitter, suggested that he would make little effort to avoid entangling his business and his office, and would instead attack those who point that out:

A few days later, in a conference with the editorial staff of The New York Times, he appeared similarly defiant, asserting, “The law’s totally on my side, the president can’t have a conflict of interest.”

The president-elect’s public stance since the election has been inconsistent at best and contradictory at worst. In an early-morning tweetstorm on November 30, Trump announced that he would be “holding a major news conference” on December 15 about a plan “being crafted which take[s] me completely out of business operations,” although he stressed again that he is “not mandated to do this under the law.” As the date approached, his spokeswoman announced that he would be delaying the press conference until January. According to The New York Times, Trump’s plans do not include any meaningful level of divestment; rather, he and his daughter Ivanka, who plans to take on a significant policy role in his administration, will be taking a leave of absence from the company. Though doing so may slightly improve the optics of the situation, the fact remains that Trump and his family will still be profiting off of their business, so the move does not mitigate his many conflicts of interest. In response, several Senate Democrats, led by Elizabeth Warren, have drafted legislation aimed at forcing Trump to divest or face impeachment.

So far, the only indication that Trump may actually be distancing himself from his financial holdings is that, on December 6, he and his spokesman Jason Miller announced that Trump had sold off his stocks in June. However, neither provided any evidence of the sale, and considering the president-elect’s history of questionable or downright false statements regarding his finances—see, for example, David Fahrenthold’s months-long, exhaustive debunking of Trump’s claims regarding his charitable giving and namesake foundation—the claim remains suspect. Until proof of the transaction has been established, such as by releasing broker records, this article will proceed based on his FEC filings, which remain the most recent documentation of his financial holdings.

Central to the discussion is that, as Trump has repeatedly pointed out, the president and vice president are exempt from the Office of Government Ethics’ rules preventing conflicts of interest within the executive branch. More recently, attention has shifted to the Emoluments Clause, a relatively obscure section of the Constitution barring the chief executive from receiving gifts from foreign governments, which some experts say Trump might violate if his properties receive preferential treatment from other world leaders. However, case law on the clause’s possible application is sparse.

At any rate, legality does not imply propriety. Unless Trump acts to put appropriate distance between himself and his business ventures, these questions are likely to continue throughout his time in the Oval Office.