[David Post] Trump, Trump(tm) and Trump’s conflicts plan

Then-President-elect Donald Trump speaks during a news conference Jan. 11. (Evan Vucci/Associated Press)

Sheri Dillon, the Morgan Lewis & Bockius lawyer who spoke at then-President-elect Donald Trump’s news conference [transcript here] this month and described the plan that Morgan Lewis has devised to “assure the American people the decisions [Trump] makes and the actions that he takes as president are for their benefit and not to support his financial interests,” did not exactly cover herself (or her firm) with glory by her performance.

The deal supposedly involves “a structure for his business empire that will completely isolate [Trump] from the management of the company”:

“He has relinquished leadership and management of the Trump Organization to his sons Don and Eric and a longtime Trump executive, Allen Weisselberg. Together, Don, Eric and Allen will have the authority to manage the Trump Organization and will make decisions for the duration of the presidency without any involvement whatsoever by President-elect Trump.”

That’s a step. Removing Trump from any decision-making authority in the Trump Organization may help to eliminate one potential conflict: the ability of the Trump Organization to use inside, non-public information, obtained by the president in order for him to carry out the public’s business, for its own private gain.

But it does nothing to deal with the other, far more serious potential conflict: the possibility that Trump will, as Dillon put it, exploit “the office of the presidency for his personal benefit,” i.e., allow the prospect of private gain rather than public benefit to sway his decision-making as president.  

I care a lot more about management of the country than I do about management of the Trump assets. How does relinquishing his management role in the Trump Organization protect against those conflicts of interest? After all, Trump will, under the plan, continue to own the Trump Organization, and any benefits it reaps during his presidency will appear in his pocket the moment he finishes his presidential term — as he, no doubt, knows full well. As a Post report put it a few days ago:

Airplanes belonging to Donald Trump’s businesses will be inspected over the next four years by employees of the Federal Aviation Administration that he will lead.

Disputes over Trump’s trademark registrations could be reviewed by judges appointed by his hand-picked commerce secretary. His Department of Housing and Urban Development could reverse its past opposition to a potentially lucrative sale of a large subsidized housing complex in New York partly owned by the president-elect. And Trump’s Environmental Protection Agency will have the power to roll back clean-water rules he and other golf course owners have said are harmful to their industry.

When Trump takes office on Friday, he will assume control of a federal bureaucracy with enormous power to bolster nearly every corner of his real estate, licensing and merchandising empire — and enhance his personal fortune.

There’s one obvious way that Trump can eliminate this conflict potential: by divesting himself of ownership of the company. Let’s look closely at what Dillon said about that:

“Some have asked questions. Why not divest? Why not just sell everything? …

Selling, first and foremost, would not eliminate possibilities of conflicts of interest. In fact, it would exacerbate them. The Trump brand is key to the value of the Trump Organization’s assets. If President-elect Trump sold his brand, he would be entitled to royalties for the use of it, and this would result in the trust retaining an interest in the brand without the ability to assure that it does not exploit the office of the presidency.”

“First and foremost,” this is BS, legally speaking — thoroughly misleading at best, blatantly incorrect at worst. While it is true that he could sell his assets under a structure that would enable him to obtain royalties for the use of his brand, that is, as any first-year Morgan Lewis intellectual property transactions associate could have informed Dillon, hardly the only way a sale could work. Nothing prevents him from assigning all of his trademark rights, along with all associated “goodwill,” to the purchaser lock, stock, and barrel, in which case he would not “[retain]