Trump's facile assertion on November 22 that "the president can't have a conflict of interest" drew immediate comparisons to Richard Nixon's 1977 response to David Frost's question about government-authorized wiretaps, burglaries, mail opening, etc. that "when the president does it it's not illegal."
As the Washington Post's Glenn Kessler pointed out the next day, the "law doesn't say the president can't have a conflict of interest." Kessler noted that the Congressional Research Service reported in October that officials in the executive branch are subject to criminal penalties
... if they personally and substantially participate in matters in which they (or their immediate families, business partners or associated organizations) hold financial interests,
but that "because of concerns regarding interference with the exercise of constitutional duties, Congress has not applied these restrictions to the president." In other words, as Kessler observed, Congress assumed the President could be trusted to do the right thing.
Presidents Johnson, Carter, Reagan, Bush I and II, and Clinton all placed their assets in blind trusts. (President Obama did not, but his assets were in mutual funds and treasury bonds.)
Much of Trump's wealth is tied to his "brand," making him arguably uniquely susceptible to foreign influence. Foreign diplomats have already begun scurrying to his newly opened hotel in D.C., and Trump commented in his Times interview that his brand has become "hotter."
Case Western Reserve School of Law professor Erik Jensen outlined Trump's potential issues with the so-called emoluments clause of the Constitution for the Post. In it's simplest terms, the clause prohibits anyone in an "office of profit or trust" from accepting a present, salary, fee, title, etc. from a foreign leader or state. Among the unresolved questions, in Jensen's view, is whether "a corporation created by a foreign state ought to be treated as the foreign state" for these purposes. He suggests that, although the founders would not have anticipated these conditions, the answer should be "yes," if the clause is to have any meaning.
By extension, Jensen asks if arms-length agreements between an entity controlled by the President and one controlled by a foreign government is covered? What if a foreign-controlled corporation reaches a deal with a company controlled by the President? And finally, Jensen asks and answers that having the Trump children running things makes no real difference, comparing the notion of "blind trust" in such a case to the superficially "blind" beggars in The Hunchback of Notre Dame whose blindness is a deception.
Less than two weeks after the election, Trump had already created the appearance of ethical impropriety at least three times: when daughter Ivanka sat in on meetings with Prime Minister Abe of Japan, when Trump met with his Indian business partners shortly after winning the election, and when he encouraged right-wing British politician Nigel Farage to intervene on Trump's behalf in a dispute over wind farms off the coast of Scotland.
(Ivanka serves as vice president of development and acquisitions for the Trump organization, and owns a jewelry business that bears her name. Trump's Indian associates are building a Trump-branded luxury apartment complex near Mumbai.)
In an interview with Atlantic's Matt Ford, chief Obama administration ethics lawyer Norm Eisen warned of ethical and legal conflicts for Trump ahead. "There’s no dispute that the president is covered by the federal criminal law," Eisen noted, "including 18 U.S.C.§ 201, for example, which is bribery of public officials." If, for instance, Trump negotiated a trade deal contingent on favorable consideration by the British government in his wind farm dispute, in Eisen's view that could be illegal. "You’re getting something that’s personally valuable to you, and that means that your public judgment is suspect," Eisen said.
Eisen and Bush ethics czar Richard Painter have drawn up a bi-partisan plan endorsed by the Wall Street Journal and the New York Post, among other individuals and institutions, that would sign Trump's holdings over to an independent trustee who qualified under the blind-trust law. The Trustee would then liquidate the assets, including an initial public offering (IPO) or leveraged buyout (LBO) if necessary. The plan would also prevent business discussions between Trump and his children. "They can talk about grandchildrens’ birthdays, but they can’t talk business," Eisen said. "And everybody in the White House and the government needs to know you can’t talk business with a Trump Organization official."
Failing to distance himself from conflicts could is some cases raise criminal issues, potentially leading to FBI investigation, Eisen said, but in the case of an Emoluments Clause gift, injured parties — e.g. competing individuals or firms — could seek civil remedies. State attorneys general could also have jurisdiction, especially where fraud is concerned.
And, of course, there’s congressional remedies for sufficiently serious Emoluments Clause violations: impeachment or congressional investigation. Remember, the Senate is just hanging by a few votes, so a few angry Republican senators are enough to start having hearings and demanding documents and witness testimony if there’s a sufficiently big problem in any of this. And then, of course, the worst case is impeachment.