The lawyers tasked with policing Donald Trump’s potential conflicts of interest are grappling with an oversight system that’s disjointed and ineffective — and one they say is mostly unnecessary.
More than two dozen lawyers working inside and outside government have a part of the Trump ethics portfolio, but no one individual has visibility into the full picture. The set up means that in some cases the lawyers are overlapping while other areas of potential conflict go uncovered entirely.
“There’s not a clear distinction of roles between and among these different lawyers. That’s the problem,” said a Washington-based attorney who requested anonymity because he’s working on ethics issues. “There’s just going to be a huge amount of overlap.”
Perhaps a bigger issue for the watchdog effort is that the lawyers who have the job of safeguarding either the White House or the president and his family business don’t see the conflict of interest issues as deserving the significant attention they have received since Trump’s upset election win last November.
“This is a very difficult scenario because no matter how they try to set up the system there will always be a group that has an issue with anything and everything related to Trump,” said Michael Cohen, a former longtime Trump Organization lawyer who recently stepped down to work as the president’s personal attorney.
While conflict of interest laws do not apply directly to the president, something many attorneys close to Trump are quick to note, the controversies swirling around the president’s business arrangements have nonetheless brought the lawyers working on these issues plenty of political headaches.
Earlier this month, the government’s chief ethics official concluded that White House senior adviser Kellyanne Conway had been in “clear violation of the prohibition against misuse of position” when she endorsed Ivanka Trump’s merchandise in a cable television interview. The president’s three consecutive weekend visits to his private Mar-a-Lago club in South Florida have opened him up to questions that he’s giving his dues-paying members special access to his government.
And despite handing over daily control of his company to his two adult sons and a longtime Trump Organization executive, legal documents show that Trump himself still maintains significant power over the entire operation by holding the right to revoke at any time the entire arrangement and also because the purpose of the trust he established is really just for holding “assets for the exclusive benefit of Donald J. Trump.”
“They have a formidable challenge in the sense that they’re plowing new ground,” said Arthur B. Culvahouse, the former White House chief counsel for President Ronald Reagan. “It’s a small office. The stakes are big. The lines aren’t always crystal clear and certainly not in this case. It’s a lot of judgment.”
The ethics vetting team is being run by an army of attorneys including four in the White House counsel’s office and several more at the Trump Organization in New York. The government lawyers are tasked solely with questions pertaining to the administration but have been hamstrung by both the sheer scope of the president’s business dealings and the legal limitations that come from their office, according to sources.
Trump’s pre-inauguration business portfolio – spread across some 500 entities he was either the sole or principal owner of – was far from easy for the layman to untangle. It turns out, the legal set up used by Trump and the rest of his family is itself something of a maze too.
Sorting that out has fallen to the Trump Organization’s recently-named independent legal adviser, Bobby Burchfield, a corporate litigator without a significant ethics background, who some worry will be unable to compel the business to provide the necessary information to assess conflicts.
Burchfield, a longtime Republican Party attorney, said in an interview he’s been on something of a crash course since accepting the paid outside counselor post last month, learning the details of any relevant Trump business ventures.
“I’m not ready to take a final exam on all the Trump holdings and the nature of them, but I’m learning what I need to know with regard to each of the transactions I need to review,” he said.
While wired up with the Trump White House – Burchfield maintains strong ties to both chief of staff Reince Priebus and chief counsel Don McGahn – as well as the company’s senior brass, he said he doesn’t take orders from any of them.
“I don’t really consider them my boss in the sense they’re telling me what to do,” he said. “They bring issues to me. I give them my independent advice. I do not have any reporting role to the president, nor does he have any role in management of the trust.”
But Trevor Potter, the president of the Campaign Legal Center and a former GOP chairman at the Federal Election Committee, said Burchfield is in an impossible spot trying to glean insight before offering his advice from inside the Trump Organization. The company, he noted, has a profit motive that may not always square with the best ethical standards that would keep it and its namesake out of the headlines.
“The job doesn’t make any sense,” Potter said, adding it’s also “more window dressing than anything that affects what the company is going to do, and it puts Bobby into a position of approving things without being sure he knows all the facts.”
The arrangement also showcases the risks to a lawyer’s professional status from taking on matters related to such high-profile clients and where even the best legal advice may go unheeded.
“Every one of those lawyers has to think about their own reputation. There were some political appointees who came out of the Nixon administration OK and there were a lot of people who didn’t,” Potter said.
At the White House, which did not respond to requests for comment, McGahn has put Stefan Passantino in the role of Trump’s lead counsel for compliance and ethics issues. A longtime attorney for Newt Gingrich, Passantino was the White House aide who directly engaged with the Office of Government Ethics in the wake of the Conway flap, and he’s the one who privately counseled her on the legal boundaries as her remarks about Ivanka Trump drew notice from Congress.
On the other side of the Trump business fence are the internal lawyers representing the Trump Organization in New York, including Alan Garten, a company veteran for more than a decade who earlier this month got promoted to chief legal officer. Garten has about a dozen lawyers working under him, and he answers directly to Donald Trump Jr. and Eric Trump. He also works alongside George Sorial, another longtime Trump executive who recently took on a new post-inauguration position as the company’s chief compliance officer.
The Trump Organization is also relying on legal and ethics advice from outside the company too, including from former White House counsel Fred Fielding and Sheri Dhillon, a longtime Trump tax attorney at Morgan, Lewis & Bockius who last month briefed reporters on Trump’s new arrangement during a nationally-televised press conference.
New to the job since last month is Burchfield, who remains based out of his King & Spalding office a block from the White House and has spent about a quarter of his time since taking the post working on Trump-related issues.
Before rendering his opinions, Burchfield said he studies information provided by the Trump Organization, research gleaned from independent investment reports and through his own online sleuthing. He then applies ethical standards that are broader and more stringent than what’s applicable to other federal employees. “There’s a heavy dose of judgment that goes into that to determine what’s appropriate,” he said.
To critics of the Burchfield arrangement, the role lacks transparency –they won’t release the retainer agreement — and it’s diminished by the fact his salary comes from the Trump trust. “He’s working for an entity whose sole beneficiary is Donald Trump,” Potter said.
Burchfield countered that the “lines of demarcation are pretty clear” when it comes to his work with the Trump White House. “Don [McGahn] is not involved in signing off on things in the business and I’m not involved in signing off on things within the executive branch,” he said.
Asked about possible damage to his professional status should Trump’s business conflicts continue being a drag on the administration, Burchfield acknowledged the risks to his new role.
“The only thing you leave this world with is your reputation,” he said. “I’m very concerned about my reputation. But I’m also committed to making sure I can do it in the right way. I’m confident I can do it in a way that doesn’t diminish my reputation or the reputation of the president.”