There has been much media attention given to possible conflicts of interest President Donald Trump will encounter as he serves the interests of the American people while simultaneously serving the interests of his business brand.
Exploiting Public Position for Personal Benefit
The legal definition of “conflict of interest” is straightforward: “A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.”
Such conflicts can occur without a public official being aware of it. Take the recent conflict of interest disclosure involving U.S. Supreme Court Chief Justice John Roberts.
Writing in a recent Findlaw column, attorney Casey C. Sullivan pointed out that Chief Justice Roberts has more than 1200 shares (valued at $176,000) in a company called Thermo Fisher Scientific, Inc.—the parent company of another company called Life Technologies. In early December, the Court heard oral arguments in a patent case involving Life Technologies in which the Chief Justice participated.
Sullivan pointed out that “each justice establishes his or her own procedures for identifying and responding to potential conflicts …”
Justices Must Recuse Themselves if Financial Stake in Outcome
This is pretty much the same authority enjoyed by the President—sole power to identify a conflict and determine the appropriate way to respond to it. The only difference, as pointed out by Sullivan, is that “federal law mandates that justices recuse themselves when they or a close family member has a financial stake in the case.”
This legal requirement notwithstanding, conflicts slip through the check/balance cracks the Court has established.
In the Life Technologies case, the Court’s clerk, Clark Scott Harris, told the attorneys involved in that case that “the ordinary conflict check conducted in the chief justice’s chambers inadvertently failed to find this potential conflict.”
This is not an uncommon occurrence with the justices.
Conflict Checks Often Slip
In July 2015, the New Yorker Magazine reported that between 2009 and 2014, Justices Roberts, Samuel Alito, and Stephen Breyer voted in 37 cases in which they owned stock in the company appearing before the court as “a friend-of-the-court or amicus brief.” They ruled in favor of those companies 73 percent of the time—and there was no evidence that any the justices ever discussed the issue of recusal.
That’s why Chief Justice Roberts’ belated recusal (01-04-17) in the Life Technologies case is so disturbing. It reflects a seemingly embedded insensitivity to potential conflicts of interest among the justices—and there is no reason to believe that President Trump’s “ordinary conflict check” will have any greater success at identifying potential conflicts of interest that will routinely involving the president, his family and close advisors.
Justice Went on Trip with Cheney While Case Before the Court
President Trump admires the late Supreme Court Justice Antonin Scalia who, as the New Yorker reported, had a distinct contempt for conflicts of interest. He exhibited this contempt when a case involving his close friend, Vice President Dick Cheney, found its way before the court several years ago. Cheney had been accused of lying “about the composition of a White House group that was setting national energy policy.”
Scalia denied a motion to have him recused from the case, and, worse yet, the justice went on a duck hunting trip with Cheney on a government jet in Louisiana while that case was still pending before the Court, the New Yorker reported.
Scalia’s contempt was embraced by his close ally Justice Clarence Thomas who said the “activities of the Vice-President should not be scrutinized in litigation run amok.”
In other words, public officials in positions of power should pretty much be able do what they please in identifying and responding to potential conflicts of interests.
As evidence of this assertion, the New Yorker pointed to a 2014 case in which Chief Justice Roberts had $500,000 worth of stocks in a company in which Roberts voted in favor.
Several of the Court’s justices, like President Trump, own stock in companies they are routinely called upon to make decisions about. They routinely shun aside real conflicts of interest in those cases granting decisions favorable to those companies. We suspect the President will do the same. Perhaps he understands the Court will provide him with cover.