Analysis: The Trouble With Trump’s Uneven Approach to Transparency

In January, Donald Trump and his lawyer Sheri Dillon held a press conference at which they laid out a plan for how the president would distance himself from his businesses. Among the steps they presented was a means to address concerns that foreign governments and leaders may attempt to curry favor with the president by staying at the Trump International Hotel in Washington, D.C. This, ethics experts said, would violate the Constitution’s Emoluments Clause, which states that government officials cannot “accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” As such, Dillon announced, the Trump Organization will “voluntarily donate all profits from foreign government payments to his hotels to the United States Treasury.”

As my colleague Russell Berman wrote on Wednesday, a document sent from the Trump Organization to Elijah Cummings, the ranking Democrat on the House Oversight Committee, demonstrates that the company isn’t doing the legwork required to stand by that pledge. The nine-page document states that the Trump Organization does not “attempt to identify individual travelers who have not specifically identified themselves as being a representative of a foreign government agency.” Doing so, the Trump Organization says, “is impractical in the service industry and putting forth a policy that requires all guests to identify themselves would impede upon personal privacy and diminish the guest experience of our brand.” The company appears to effectively delegate identifying foreign payments—at least, the pamphlet says, those that aren’t “direct billings from the Property to a foreign government”—to the foreign governments themselves.

In fact, the Trump Organization effectively acknowledges the inadequacy of the policy in the very document in which it is presented:

We recognize that foreign governments can be organized in very different ways. Some may operate through state-owned and state-controlled entities in industries such as aerospace and defense, banking, finance, healthcare, energy, and others, which may not be reasonably identifiable as foreign government entities, and therefore may not be included in our calculation of profit to be donated.

In other words, a foreign government could still seek to influence Trump via his hotel merely by routing payment through a corporation or individual associated with said government, but not explicitly identified as such.

Far from answering questions regarding whether the hotel would remain a vehicle for potential emoluments, the pamphlet seems to indicate that Trump is abdicating the responsibility he claims to have undertaken voluntarily. It’s not just that the Trump Organization’s unwillingness to entertain the possibility of reduced profits to comply with the Constitution contradicts the president’s pledge to put “America First.” It’s also the latest demonstration of one of the administration’s more self-defeating tendencies: Trump behaves as though ethical guidelines are optional (which, in some cases, they are). This in turn creates a dynamic in which, rather than resolve controversies, the administration escalates conflicts by questioning the need for compliance.

For additional examples, one need look no further than that January 11 press conference. As if to demonstrate to the public the sacrifices he was making on their behalf, Trump took the stage alongside tables stacked with manila folders in which, he claimed, were reams of documents he had signed relinquishing control of his companies. What seemed to have been conceived as a showcase of generosity quickly backfired: Trump’s transition team did not allow reporters to actually open the folders, prompting speculation that they may have simply been props filled with empty paper. Rather than a testament to Trump’s commitment to transparency, the display became an object of derision and a visual reminder of the inadequacy of Trump’s ethical arrangements.

The president has similarly brought controversy upon himself recently over financial disclosure. As has been frequently noted, Trump has continually refused to participate in the decades-old tradition of releasing his tax returns. This means that the only public records of his finances are the disclosure forms he filed with the Federal Election Commission in 2015 and 2016, which provide significantly less information about his financial situation than would his tax returns.

Now, with the disclosure deadline for 2017 approaching, Trump’s team is pushing back against providing even those documents. The Associated Press reported that Dillon suggested that, since the president isn’t legally obligated to refile his disclosure forms until 2018, Trump should not be required to sign the documents this year to certify their veracity. Walter Shaub, who is the head of the Office of Government Ethics (OGE) and who has publicly criticized the president’s decision to retain ownership of his businesses while in office, responded by asserting that his office will only accept paperwork with Trump’s signature, a request to which Dillon acquiesced.

Still, it’s worth taking a step back and analyzing Dillon’s approach. Rather than treating disclosure as a routine part of the presidency, the exchange seems to hinge on the idea that Trump is filling out the forms entirely voluntarily (which, as noted above, is technically true this year). Viewed from that perspective, it’s well within the president’s rights to negotiate which parts of the paperwork he will submit. But doing so implies that the president either doesn’t recognize the importance of transparency or, worse, believes the disclosure will reveal something that he doesn’t want the public to see. With speculation about his financial ties already rampant, the result is an entirely self-generated controversy that further contributes to the widespread belief that Trump’s obstinate opacity means he has something to hide.

That’s not to say that Trump’s FEC forms wouldn’t have been newsworthy to begin with; they are, after all, the only publicly available records of his finances. In all likelihood, though, this year’s disclosures would be fairly similar to those he filed during the campaign: a roughly 100-page list of the companies comprising the Trump Organization. Arguably the only question the forms could conclusively answer is whether Trump has sold off his stocks and bonds, which he and his spokespeople have claimed he did last summer without offering any proof of the sales. It’s entirely possible—even, arguably, probable—that the forms won’t show anything of interest, rendering Dillon’s decision even more confounding.

That’s not even the only fight the Trump administration’s picked with the OGE this month. The White House is currently in another showdown with the agency over ethics waivers for the many lobbyists the administration has brought into the federal government. Rather than submitting the waivers, which list, among other pertinent information, the lobbyists’ names, the agencies for which they will be working, and any conflicts their previous jobs might create, Mick Mulvaney, the director of the Office of Management and Budget, chose to challenge the OGE’s authority to request the forms at all. This drew another stern response from Shaub, reasserting his agency’s legal mandate and the necessity of maintaining an outside arbiter of ethics within the executive branch.

This, again, is a problem that the Trump administration is creating entirely for itself. Trump and his team proactively chose to decry the role of lobbyists in the federal government during the campaign, craft an executive order on the topic, and then hire numerous lobbyists to work in the administration. Now, the White House has again chosen to turn routine disclosure practices into a public showdown, which only further reinforces the idea that the administration doesn’t want the public to know who they’re hiring.

Much the same can be said for the White House visitor logs, which the administration is withholding under the justification that doing so will save taxpayers money. That explanation quickly crumbles, though, both because the savings are minuscule—roughly $70,000 over four years—and because it implicitly repaints basic transparency as optional and disclosure as a favor to the public. Besides, it didn’t take long for news organizations to begin tracking visitors to the White House themselves, meaning that the only tangible effect of the administration’s decision was to create the impression that there was something in the logs they were trying to hide.

The easiest way for the Trump administration to avoid this type of self-inflicted wound would, of course, be to actually practice some degree of transparency. If instead they continue to treat disclosure as a favor rather than a duty, they’ll only continue calling attention to stories they’d probably rather see go away.