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The Icarus myth is a cautionary tale for our new president. Daedalus gave his son, Icarus, wings made of feathers and wax on a wood frame, with a warning. If Icarus flew too near the sun, the wax would melt and he would fall to his death. Icarus, heady with his new power and bursting with hubris, ignored the warnings and perished.
It is one thing to be a real estate mogul, playing fast and loose with the bankruptcy laws. It’s another to be the president playing close to the line. If Trump suppressed the investigation of Russian hacking of the Democratic National Committee in order to avoid delegitimizing his election, he could could have committed treason, as John Shattuck has written. Any foreign money Trump receives, in any form, could violate the Constitution’s Emoluments Clause — which prohibits government officials from taking money or gifts from a foreign state — as alleged in the lawsuit filed last week by a group of ethics experts and legal scholars. And if he tries to use his presidential power to secure private advantage, he could face impeachment for extortion or bribery.
The president has been assured that the conflict of interest statute does not apply to him -- which is true. To Trump, this means that it is OK for him to engage in such conflicts with impunity. That’s like saying that if you smoke cigarettes, there is a good chance you won’t get cancer. But smoking still greatly increases your risk.
The conflict of interest statute reflects important civic values — that the government operates for the benefit of the people, not the financial interest of officials. But that’s not the law's only purpose. It is a prophylactic measure designed to ensure that the officer-holder avoids situations where he would be at risk of committing extortion or bribery -- criminal statutes to which even the president is subject.
Imagine this scenario: Trump speaks with an official in a state where the president has investments to discuss closing a military base. Trump merely has to mention in the same conversation that he has investments nearby and he is at risk of committing a crime. Defendants have been indicted for far less. Or imagine that he decides to visit one of his golf courses, which hasn’t opened because of red tape, and mentions to the responsible official that there is an important bill affecting that state on his desk. It’s not just the issue of Trump's divided loyalties; it is what divided loyalties enable, namely that conversations can cross the line into illegal conduct.
Today [Trump] stands alone, subject to citizens’ absolute judgment. How will they judge him if conflicts of interest devolve into real crime?
In McDonnell v. United States, the Supreme Court made it clear that federal bribery and extortion require quid pro quos, Latin for "you give me this financial benefit and in exchange, I will do this official act." It doesn’t matter whether the benefit and the official act are mentioned in the same sentence, the same conversation, or within days. And the quid pro quo doesn’t have to be explicit; it can be proved by circumstantial evidence. In fact, it is not unusual for a judge to instruct a jury, as one court wrote, that it can “infer guilt from evidence of benefits received and subsequent favorable treatment.” That may not be enough to convict, but it is surely evidence of crime. Trump may argue, “Why would a man already fabulously rich seek to be richer still?” And the government may counter, "Because that is who he is. “
The president is not well-served by those who say the people elected him knowing these conflicts, choosing him over Hillary Clinton (although not in the popular vote) and other Republicans. The election involved a relative choice between unpopular candidates. Today he stands alone, subject to citizens’ absolute judgment. How will they judge him if conflicts of interest devolve into real crime?
Perhaps he is being advised that he can get away with anything again since the only recourse is an impeachment process at the hands of a Republican-dominated House of Representatives. Decades ago moderate Republicans eager to distance themselves from President Nixon helped initiate the impeachment process.
Worse for the president, his children may well share the same conflicts and are even more vulnerable. They don’t have to be impeached; they can be prosecuted.
By their advice, Trump’s advisers – political and legal – have encouraged brinkmanship – flying close to the line of illegality. But beware: A president acts in a different setting than does a businessman, a setting in which — like the one Icarus encountered — the heat is on.
Nancy Gertner Cognoscenti contributor
Judge Nancy Gertner was appointed to the bench in 1994 by President Bill Clinton, and retired in September of 2011 to join the faculty of Harvard Law School. Her autobiography, "In Defense of Women: Memoirs of an Unrepentant Advocate," was published in 2011.