We Still Need Presidential Conflict-of-Interest Reform

“Former President Donald Trump was once harshly criticized for failing to release his tax returns, but no one seems to care much anymore,” wrote Brian Faler of Politico in an essay over the weekend. So true. Amid the understandable attention (about which we have written an enormous amount) on other law and norm concerns related to former President Trump, the tax disclosure and related conflict-of-interest issues have lost public attention. But these issues are also worth considering because they teach important lessons about the relationship between failure to tighten norms related to the presidency once they are violated and the diminution of the norms’ effectiveness. 

Norm Violations and the Decline of Norms

In After Trump, we urged Congress to (among other things) “amend the Ethics in Government Act to ensure public disclosure of presidents’ (and vice presidents’) and presidential (and vice presidential) candidates’ tax returns.” The aim of tax disclosure in this context is to allow voters to assess the possible conflict-of-interest implications of candidate policy stances, and to protect against conflicts of interest once in office.

The reform we (and others) proposed obviously did not materialize. And neither former President Trump nor vice-presidential candidate J.D. Vance have disclosed their tax returns during the 2024 presidential campaign. (Vice-President Kamala Harris and her running mate, Tim Walz, have disclosed.) For Trump this is the third election cycle in a row in which he has refused to disclose his tax returns. That marks three election cycles of non-compliance with what was a norm with which all major party candidates had complied from 1980 until 2016. Trump in office also violated what had been a norm since President Carter of presidents voluntarily releasing tax returns to the public on a yearly basis.

Trump’s indifference to the tax disclosure norm, or what’s left of it, comes after many years of criticism by Democrats and the press, and unprecedented tax information leaks to the New York Times—which showed that during several years Trump paid zero or minimal federal income taxes and that he had many possible conflicts of interest related to the presidency. Trump’s rejection of tax disclosure norms, and the issue’s lack of salience in the presidential campaign, strongly suggests that voters do not care much about the issue. “Trump has been successful, by and large, at taking tax-return disclosure off the table of the political debate,” says Steve Rosenthal, a senior fellow at the Tax Policy Center, in the Politico story. 

As we documented at length in After Trump, Trump played fast and loose with other financial conflict-of-interest norms during his first term. He did not divest his assets; he declined to establish a meaningful blind trust clearly separating him from the conduct of his business interests and then often mingled presidential duties with personal business interests; and he fended off all legal and political challenges to these activities. The conflict-of-interest norms that he violated, like the tax disclosure norms, aim to ensure that the president acts free of financial corruption and serves the public interest rather than his private business interests.

We can expect Trump to continue to violate these norms if re-elected. He was asked during a town hall event in Iowa on Jan. 10 whether he would divest from his businesses were he elected in 2024. His answer was incoherent, but the bottom line—from this statement and from everything else we know about Trump—is that he will not:

I own hotels all over the… I don’t get free money. Somebody rents a hotel room, et cetera, et cetera. Much money I gave back. In fact, I didn’t have to do it. George Washington was a very rich man. People don’t know that. In his essentially White House, which wasn’t built, but they had an office, he had a business desk and he had a country desk right next to each other. You’re allowed to do that. I didn’t do it. I put everything in trust and if I have a hotel and somebody comes in from China, that’s a small amount of money and it sounds like a lot of money. That’s a small… But I was doing services for that.

Note that Trump leaves himself plenty of room in this response. He declares that he “put everything in trust,” only to acknowledge “doing services” for the money earned, which he seems to minimize as an issue because the amounts received were “small.” In short, Trump appears prepared to persist in the violation of these norms that were once thought sacrosanct. But he will be able (if elected) to do in 2025 what he did in 2016-2020, because no reforms have been enacted to end these practices, and because the issue lacks the political salience that made it an active topic of debate and controversy from 2016-2020.

It may be tempting to dismiss the tax disclosure norm as far below others in significance and to just let the political marketplace decide. Some candidates will then judge the release of returns to be the right thing to do, or politically advantageous, and provide the disclosure. Others will choose differently. Voters will decide how much they care. But if left to the political process, tax return releases will no longer be a norm, commanding wide respect and compliance, but at best an exercise in political strategy. The conflict-of-interest constraints on this powerful office, which are already inadequate, would be further and dangerously weakened. The public should have basic information about the potential financial entanglements and pressures that could influence the exercise of presidential authority.

There is a feedback loop here. Norms work when politicians care about them intrinsically or fear political or other sanctions from non-compliance. Trump obviously does not care about norms—conflict of interest norms, or any other norms—intrinsically or instrumentally. He violated the tax disclosure and conflict-of-interest norms during his first presidential run and term, he was challenged on these norm violations, he was indifferent to the political and legal blowback, he survived the onslaught, and he continues to be indifferent. Perhaps this shows that these norms lacked the wide public support they were previously believed to have. But there can be no doubt that Trump’s political survival and continued indifference have helped to take the wind out of their sails, so to speak. The relative dearth of news stories on these issues, and their lack of salience in Vice President Kamala Harris’s campaign attacks, are telling. These conflict-of-interest issues certainly do not show up in any polling as a serious political vulnerability of the Trump candidacy.

This does not mean that norms are entirely dead or that there is no line that Trump could cross that would implicate broad voter concern. We believe there is such a line. One can imagine that this might happen if, for example, an authoritarian foreign government during a second Trump presidency brazenly lines his pockets through his business ventures in exchange for open political favors. But even if there is some line that Trump cannot cross without suffering real political consequences, that line has moved to a significantly less restrictive place as a result of his norm violations and the lack of effective response. 

Reforms as Means to Shore Up Norms: An Analogy

If voters are little bothered by the shattering of these norms, elected officials are unlikely to be motivated to enact reforms to rescue them from complete failure. In the case of Trump, the failure of the legislative process to respond can also be traced to his party’s anxiety about embracing reform measures that could be construed as “anti-Trump.” For conflict-of-interest reform to succeed, political leadership in the right conditions has to transcend momentary political pressures and voter indifference that cause politicians to sit on their hands. This worked in Electoral Count Act reform. But it never came together with regard to conflict-of-interest reform (and so many other needed reforms related to the presidency.)

Consider an analogy. At one time, hard as it may be to believe, federal elected officials could charge money for speeches (or other “appearances”). There was a cap on the amount per speech (at one point as high as $2,000), but it was a practice many engaged in to supplement their official salaries. No candidate (to our knowledge) was driven from office by angry voters for making this kind of money from interest group invitations for these paid speaking engagements. The voters might not have approved; but it was not a major voting issue by any means. However, for various reasons that go beyond our purposes here, Congress recognized that the important norm against profiting financially from office was failing in this key and highly visible respect and voted to prohibit first members of the House, in 1989, then senators, in 1991, from receiving honoraria.

Reform can respond to eroded norms by replacing them completely with legal prohibitions on targeted conduct such as paid speeches. Or it can utilize other tools, like transparency, to require elected and other senior government officials to account for their management of conflicts of interest, as in the case of the personal financial disclosure requirements under the Ethics in Government Act. Either way, what the norms stand for is validated and their significance reaffirmed. If neither occurs, and without the emergence of genuine public engagement, we can expect the norms to fade away. And they will die out all the more quickly when a president and party leader compounds voter indifference with his own.

Voters care in principle about the norms such as these: In 2016, when this was a live issue, voters, including Republicans, supported presidential candidate tax return disclosure. But once candidate and President Trump refused to disclose, the issue became politicized, as his supporters had to decide between siding with him or with his critics. His action successfully divided the electorate and undermined the norm for the future. At this point, the only remedy is legal reform, and a relatively simple one at that. But for now the politics have prevailed. 

– Bob Bauer, Jack Goldsmith, Published courtesy of Lawfare.