Trump Transition Team “Announces Tough Lobbying Ban”

Politico: “Trump Team Announces Tough Lobbying Ban.” President-elect Donald Trump’s transition team “announced that it will require incoming officials to terminate their lobbying registrations, and agree not to lobby again for five years after leaving the administration.” Politico’s Isaac Arnsdof characterized the “ban” as “in some ways far more rigid than President Barack Obama’s groundbreaking lobbyist ban” but “more lenient on the front end.” From the November 16 article:

President-elect Donald Trump’s transition team on Wednesday announced that it will require incoming officials to terminate their lobbying registrations, and agree not to lobby again for five years after leaving the administration.

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The policy is in some ways far more rigid than President Barack Obama’s groundbreaking lobbyist ban.

The Obama transition team’s policy restricted hires who lobbied for one year prior, as did an earlier code of ethics for the Trump transition obtained by POLITICO. Trump’s new policy appears to be more lenient on the front end in that it allows new hires to have been registered to lobby on the issues they’re advising the transition on right up until they come aboard, provided the incoming transition aides show proof that they terminated their lobbying registration.

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In addition, officials in the Trump administration will be banned from lobbying for five years after leaving government. That sounds extremely sweeping, but it’s unclear how it will be enforced. [Politico, 11/16/16]

Right-Wing Media Praise Plan As “Draining The Swamp”

Fox’s Brian Kilmeade: Trump Is “Back To Draining The Swamp” With Plan That “Anybody Who Jumps Aboard The Trump Train … Will Not Be Able To Lobby For Five Years” Afterward. Fox & Friends co-host Brian Kilmeade said the proposal to “get rid of all the lobbyists” proves that Trump is “staying true to his word of what exactly he wants to accomplish” as president. From the November 17 edition of Fox News’ Fox & Friends:

BRIAN KILMEADE (CO-HOST): Today's headline is, “Back to draining the swamp.” Mike Pence takes over on the transition team and says, “Let's get rid of all the lobbyists,” he does it. And then yesterday it comes out that anybody who jumps aboard the Trump train and becomes a member of the team will not be able to lobby for five years. So he's staying true to his word of what he exactly wants to accomplish. [Fox News, Fox & Friends, 11/17/16]

Wash. Examiner’s Kristen Soltis Anderson: “Bans On Having Folks Go And Lobby After Being In The Administration Is A Signal That [Trump Is] Going To Do The Draining Of The Swamp He Said He’d Do.” Washington Examiner columnist Kristen Soltis Anderson argued that Trump’s proposed “bans” on lobbying after serving in the administration and registered lobbyists serving in the team are “a signal that [Trump is] going to do the draining of the swamp he said he'd do.” From the November 17 edition of ABC’s Good Morning America:

KRISTEN SOLTIS ANDERSON: I think getting rid of lobbyists on the transition team, putting in place bans on having folks go and lobby after being in the administration, is a signal that he's going to do the draining of the swamp he said he'd do. [ABC, Good Morning America, 11/17/16]

Limbaugh: The Trump Transition Team, They Are Preparing To Drain The Swamp. Radio host Rush Limbaugh hyped the Trump transition team’s ability to “drain the swamp,” claiming that not only is the president-elect “making sure there are no lobbyists,” but he is even requiring everyone in his administration sign “a form that they will not lobby for five years after leaving.” From the November 17 edition of Premiere Radio Networks’ The Rush Limbaugh Show: 

RUSH LIMBAUGH (HOST): The Trump transition team is well-oiled, it's smoking hot. The Trump transition team, they are preparing to drain the swamp. Trump is making sure that everybody on his team is actually on his team. He is making sure there are no lobbyists, and he is making everybody sign a form that they will not lobby for five years after leaving his administration. He is making it explicitly sure that what he promised during the campaign is happening, and going to happen. When they said they’re going to drain the swamp, that’s what they’re going to do. And the media can't get their arms around all of this, and they're trying to portray Trump as they think he is; neophyte, inexperienced, clueless, dangerous, bull in a china shop, doesn't know what he's doing. That’s what they’re trying to spread out there. And they believe that the more consistently they do it, the greater the odds that a greater number of people will start believing it. [Premiere Radio Networks, The Rush Limbaugh Show, 11/17/16]

RedState: Trump’s “Promises” To “Institute A Five-Year Lobbying Ban For All Departing Members Of Congress And Their Staff, In Addition To Executive Branch Officials,” Is “Encouraging.” RedState’s Dan Spencer wrote that Trump’s “promises” to “to institute a five-year lobbying ban for all departing members of Congress and their staff, in addition to executive branch officials” is “encouraging,” adding that it “gives [him] hope that perhaps Trump will stand by his Contract With the American Voter” to “Drain the Swamp.” From the November 17 post:

Appointees to President-elect Donald Trump’s administration will be required to sign a form barring them from being a registered lobbyist for five years after they leave government service. Fox News reports that Republican National Committee chief strategist Sean Spicer told reporter Wednesday that the prohibition would help to ensure people won’t be able to use government service “to enrich themselves.”

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The new policies are aimed at curbing the influence of lobbyists. During the presidential campaign, Trump vowed to institute a five-year lobbying ban for all departing members of Congress and their staff, in addition to executive branch officials.

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This is encouraging. Stahl called out Trump for having lobbyists included in his transition Team, and even though Conway had mounted a defense of using lobbyists, within days Trump sent in Mike Pence to clean house. It gives me hope that perhaps Trump will stand by his Contract With the American Voter. [RedState, 11/17/16]

Ban “Misses Pseudo-Lobbyists” Who Don’t Register As Such And Part Of It “Could Be Easily Skirted”

Wash. Post: Trump’s Ban On Registered Lobbyists “Could Be Easily Skirted.” According to The Washington Post, “On its face, the lobbyist ban appears stringent, but it could be easily skirted if a lobbyist were to deregister to be eligible to join the administration,” which, the Post’s Catherine Ho notes, “may already be happening.” From the November 16 article:

On its face, the lobbyist ban appears stringent, but it could be easily skirted if a lobbyist were to deregister to be eligible to join the administration. One sign indicates that it may already be happening: A close aide to Pence who is a Washington lobbyist, Josh Pitcock, filed paperwork with the Senate on Monday to terminate his status as a federal lobbyist. Pitcock advised Pence during the presidential campaign, and has lobbied for the state of Indiana since 2013, earning $280,000 a year to lobby on a wide range of issues including health-care marketplace exchange rates and resources for the state’s response to the Zika virus, lobbying records show. Pitcock did not immediately return a request for comment. [The Washington Post, 11/16/16]

NY Times: Trump “May Not Be Able To” Implement His Proposed Ban “Unless Congress Itself Passes Legislation” To Do So, Which Is “Unlikely.” According to The New York Times, Trump’s “administration may not be able to prohibit former administration officials from lobbying House and Senate members unless Congress itself passes legislation imposing a five-year post-employment ban for all federal employees,” which is “unlikely.” From the November 16 article:

In Mr. Trump’s case, his administration may not be able to prohibit former administration officials from lobbying House and Senate members unless Congress itself passes legislation imposing a five-year post-employment ban for all federal employees.



That move is unlikely, given that hundreds of Capitol Hill staff members — and some members of Congress — leave their jobs every year to become lobbyists. The current congressional ban is no more than two years, and in some cases there is no ban at all. [The New York Times, 11/16/16]

CNN: Ability For Lobbying Ban To Be Successful “Depends On How It Is Written And Enforced.” According to a CNN article about the lobbying ban, the particulars of how the ban is written will determine if it will actually deter lobbying by former Trump administration officials. Currently “a common practice in Washington is for key power players not to register as a lobbyist, but instead work as a consultant or adviser -- allowing them to take their experience and contacts to make hundreds of thousands of dollars on K Street.” [CNN, 11/17/16]

NY Times’ Nick Confessore: “Lobbyist Ban … Misses Pseudo-Lobbyists.” New York Times political reporter Nick Confessore tweeted that Trump’s proposed lobbyist ban “misses pseudo-lobbyists, like the Verizon consultant leading Trump’s FCC transition.” He also noted that to have “real meaning,” a lobbyists ban “needs a greatly widened statutory definition of ‘lobbying.’” [Twitter, 11/17/16; Twitter, 11/17/16] 

Politico: “Democrats And Republicans Alike” Say Ban “Will Discourage Lobbyists From Formally Registering” As Such. Politico reported that “Democrats and Republicans alike … say that [the ban] will discourage lobbyists from formally registering to avoid having to comply with the rule”:

“It will only incent further motivation to avoid having to register as a dreaded lobbyist,” one Democratic lobbyist said.

Washington saw a wave of lobbying de-registrations in the run-up to Obama’s presidency, with the influence sector worrying that they’d be passed over for jobs. Similarly, officials leaving the administration have taken advantage of federal rules requiring people to register as lobbyists only if lobbying makes up 20 percent of their activity. [Politico, 11/17/16]

And Trump's Administration Is Already Shaping Up To Be A Huge Conflict Of Interest

NY Times: “The Layers Of Potential Conflicts [Trump] Faces Are In Many Ways As Complex As His Far-Flung Business Empire.” According to The New York Times’ Eric Lipton and Susanne Craig, Trump faces “layers of potential conflicts” that will complicate “separating his official duties from his private business affairs.” Lipton and Craig note that even though Trump “will be exempt from a federal ethics rule that prohibits government employees and members of Congress from taking actions that could benefit their financial interests … the public will expect him to not use his office to benefit his personal finances.” From the November 14 article: 

The layers of potential conflicts he faces are in many ways as complex as his far-flung business empire, adding a heightened degree of difficulty for Mr. Trump — one of the wealthiest men to ever occupy the White House — in separating his official duties from his private business affairs.

Further complicating matters are Mr. Trump’s decision to name his children to his transition team, and what is likely to be their informal advisory role in his administration. His daughter Ivanka Trump joined an official transition meeting on Thursday, the day before Gov. Chris Christie of New Jersey was removed from his post leading the effort.

Mr. Trump has said he will eliminate ethical concerns by turning the management of his company over to his children, an arrangement he has referred to as a blind trust.



But ethics lawyers — both Republicans and Democrats — say it is far from blind because he would have knowledge of the assets in the trust and be in contact with the people running it, making it unlike a conventional blind trust controlled entirely by an independent party.

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As president, Mr. Trump will be exempt from a federal ethics rule that prohibits government employees and members of Congress from taking actions that could benefit their financial interests.



But the president still must comply with a law that requires annual financial disclosures of his assets. The first will not be due until May 2018, although President Obama filed one voluntarily during his first year in office.



Experts said that even if Mr. Trump was exempt from some federal ethics rules, the public will expect him to not use his office to benefit his personal finances. [The New York Times, 11/14/16]

New Yorker: Trump “Has Shown No Sign That He Understands Or Ever Even Thought About Conflict-Of-Interest Laws, Or Conflicts Of Interest.” According to The New Yorker’s Sheelah Kolhatkar, Trump “has shown no sign that he understands or has ever even thought about conflict-of-interest laws, or conflicts of interest,” and, “in some sense, it’s impossible to separate Trump from his assets.” A former adviser to former New York City Mayor Michael Bloomberg who was interviewed for the article said the numerous conflicts of interest that could arise create “a very unique problem for [Trump]—we don’t have a very good picture of his financial situation, we really don’t know what he owns, we don’t know all his entanglements.” From the November 14 article:

Trump was elected President and, so far at least, has shown no sign that he understands or has ever even thought about conflict-of-interest laws, or conflicts of interest. On November 10th, two days after the election, an attorney for the Trump Organization named Michael Cohen told CNN that the President-elect intended simply to turn control of his company over to his three children from his first marriage, who would run it through a “blind trust,” a suggestion that makes little sense on its face, given that a trust is only considered “blind” if the trustees are individuals with no financial relationship with the company’s owner. The former Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush all placed their assets in blind trusts while serving as President. (Obama has all of his money in Treasury bills and index funds, investments that aren’t seen as a conflict.) In any case, the idea of Trump setting up an impossible-sounding blind trust with his children dissolved the following day, when he announced that three of his children would serve on the executive committee of his Presidential transition team, helping him to fill jobs in his government.

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“This is not something esoteric. This is an area that the incoming President must address, along with his other conflicts,” [lawyer Kenneth] Gross, who advised Michael Bloomberg on the management of his assets while he was the Mayor of New York City, said. (I formerly worked at Bloomberg L.P.) “This is a very unique problem for him—we don’t have a very good picture of his financial situation, we really don’t know what he owns, we don’t know all his entanglements.”



Gross noted that, in some sense, it’s impossible to separate Trump from his assets. “One of the problems that Trump has is he already knows what properties he already owns. It does no good in terms of blinding assets he already owns, and it does no good if his children are running it, in resolving the conflict, because his self-interests are co-existent with his children’s interests,” Gross said. [The New Yorker, 11/14/16]

The Week: When Trump Arrives In Washington, “A Tidal Wave Of Potential Conflicts Of Interest Will Arrive With Him.” The Week’s Jeff Spross warned of “a tidal wave of potential conflicts of interest” that “will arrive with” a Trump administration, writing, “Legal entanglements are not a new problem for presidents entering office,” but “the volume for Trump is staggering.” From the November 14 article:

Donald Trump will arrive at the White House on Jan. 20, 2017. When he does, a tidal wave of potential conflicts of interest will arrive with him.



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Now, were Trump to use his control over the American government to boost his personal businesses and portfolio, it wouldn't be technically illegal. There are laws governing how federal officials, members of Congress, and federal employees should handle conflicts of interest, including requirements that they recuse themselves in certain cases. But those rules do not extend to the presidency. Trump could certainly be charged and investigated for engaging in outright bribery while serving as president. But even then the Justice Department would have to appoint a special prosecutor to investigate the charges — a move which, amusingly, Trump himself would have to agree to.

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Here's but one example: Trump owns eight hotels here in America, including Chicago, Las Vegas, New York City, Honolulu, and most recently in Washington, D.C., itself, after Trump leased the historic Old Post Office Building and turned it into a Trump hotel. Since the property owner is still the government, and the deal was made with Trump pledging future amounts of revenue, it entangled Trump's company in potential future legal and financial wrangling with the Government Services Administration (GSA) — an agency which President Trump would ultimately be in charge of. So how President Trump staffs and influences the GSA could help decide the fate of his D.C. hotel venture.

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Legal entanglements are not a new problem for presidents entering office. And had she been elected, Hillary Clinton would have entered office facing a lawsuit from media companies looking for access to her emails. But again, the volume for Trump is staggering. USA Today determined that something in the vicinity of 75 lawsuits will be pending against Trump when he takes the oath of office, of which around 30 are probably significant. Nor can they be dismissed on public immunity grounds, as most of his lawsuits name him in his role as a private businessman. (Clinton's lawsuits, on the other hand, name her in her role as secretary of state, so public immunity probably would have applied.) [The Week, 11/14/16]

Vox: Trump’s “Personal Financial Situation … Poses A Series Of Massive Conflicts Of Interest.” Vox’s Matthew Yglesias noted that Trump’s “personal financial situation … poses a series of massive conflicts of interest and lays the groundwork for financial self-dealing on an essentially unprecedented level.” Yglesias explained, “As long as the company is intact and under the control of Trump’s children and direct heirs, the conflict of interest has not been even slightly mitigated.” From the November 14 article:

Donald Trump ran for president promising to “drain the swamp” of corruption and self-dealing that he argued had taken root in Washington, DC. But not only has he immediately moved to pack his transition team with lobbyists and millionaires, his personal financial situation also poses a series of massive conflicts of interest and lays the groundwork for financial self-dealing on an essentially unprecedented level.

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Previous wealthy presidents have, however, taken it upon themselves to reassure the public that they are not self-dealing by placing their assets in a blind trust. That means they have an investment portfolio — stocks and bonds and such — that is placed under professional management with special terms. The manager is under a fiduciary responsibility to manage investments in the president’s best interests, but the president is not allowed to see what the trustees are investing in.

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Trump’s plan, by contrast, is simply to hand over management of the Trump Organization network of businesses to a council composed of his children and some other executives. He has chosen to call this council a “blind trust,” and some media outlets have unaccountably agreed to go along with it. But even in the age of Trump, words have meaning, and asking your kids to manage your affairs for you is not what a blind trust is.

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As long as the company is intact and under the control of Trump’s children and direct heirs, the conflict of interest has not been even slightly mitigated. Further exacerbating the problem is the well-known fact that Trump’s three oldest children — and Ivanka’s husband, Jared Kushner — are some of his closest political advisers. The council of kids running the Trump Organization, for example, have also been appointed to the council running the Trump transition project. There will be perfect and intimate coordination between Trump’s policymaking and Trump’s business life. [Vox, 11/14/16]