The late Supreme Court Justice Antonin Scalia once wrote a memo to the Ford administration advising that conflict of interest laws do not apply to the president or vice president, but should be observed nonetheless.
Though he did not have occasion to address these issues from the bench, in 1974 he was asked to write an advisory opinion addressing whether a federal conflict of interest law applied to the president and vice president. At the time Scalia was assistant attorney general at the U.S. Department of Justice in the Office of Legal Counsel (OLC), which provides legal advice to the president and various executive branch agencies.
The White House asked for OLC’s views because incoming Vice President Nelson Rockefeller boasted considerable financial holdings, and the Ford administration was concerned about impropriety. Still reeling from the damage of Watergate, the beleaguered White House was eager to avoid scandal.
Scalia’s memo concluded the conflict of interest law was not binding on the president or the vice president, but also counseled that failure to maintain those standards would look rotten. (RELATED: Trump’s Business Interests Could Trigger A Constitutional Crisis)
Scalia’s advice came only months after President Richard Nixon left office in disgrace, and a damaging confirmation process revealed Rockefeller had lavished gifts on senior White House aides.
“Failure to observe these standards will furnish a simple basis for damaging criticism, whether or not they technically apply,” he wrote.
The memo explained that the president and the vice president could not be considered “employees” or “officers” within the meaning of the conflict of interest law and a corresponding executive order issued by President Lyndon Johnson. As Scalia and other scholars like Seth Barrett Tillman have explained, the term “officer” as used in the Constitution and other areas of the federal law invariably refers to individuals other than the president and vice president. Scalia also wrote the statutory definition of “agency” or “employee” does not include the president.
Earlier this month, three prestigious attorneys — Laurence Tribe, Norman Eisen, and Richard Painter — published a memo through the Brookings Institution arguing President-elect Donald Trump will be in violation of the Constitution’s Emoluments Clause, an anti-corruption provision, as soon as he takes office Jan. 20. Eisen and Painter both served as White House ethics lawyers.
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