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What Can We Do If A President Has A Conflict Of Interest But Doesn’t Think He Does?

Even by 2017 standards, the last few weeks have been packed with news. So you’re forgiven if you missed a chain of stories tied to alleged ethical violations by members of the Trump administration. Here’s a quick catch-up:

Whew.

And that’s just the tip of the iceberg. The Sunlight Foundation, a nonprofit devoted to government transparency, has been compiling a list of the president’s alleged conflicts of interest from news reports and legal documents. As of July 5, their count sat at 609 different ethical quandaries, of which only 46 had been resolved through the dissolution of a company, divestment by the Trumps, or some other means. That’s a lot for a leader who assured America back in December that the president “couldn’t have conflicts of interest” and promised he’d solved all of his in a January press conference.

How do you deal with conflicts of interest when the person at their center doesn’t believe they exist? That’s not a question unique to the presidency. Twenty years ago, the medical and scientific fields were in much the same position, with a handful of ethicists struggling to convince doctors and researchers that financial conflicts of interest with pharmaceutical companies and other industry sponsors were real and dangerous. As the political community weighs the options for increasing presidential transparency, it’s worth looking at how the same process has changed science — and at how little we still know about whether those changes worked.

The first step is disclosure, even if it’s only voluntary, said David Resnik, a bioethicist and chair of the National Institute of Environmental Health Sciences’ Institutional Review Board. That’s because the disclosure of potential conflicts of interest was one of the key factors in convincing scientists that potential conflicts were widespread and troubling. Florence Bourgeois, assistant professor of pediatrics and emergency medicine at Harvard Medical School, agreed. For example, she told me about the federal clinical trial registry website, which began in 2000 as a purely voluntary system for researchers who wanted to show that they were being honest about their results, even when they didn’t turn out they way they had hoped, rather than cherry-picking hypotheses after they arrived at their results. It also ensured that results didn’t just disappear when they conflicted with the desires of financial sponsors. But as the editors of scientific journals saw what was — and more importantly, what wasn’t — getting registered, that changed. In 2005, the International Committee of Medical Journal Editors began requiring pre-registration of any study before results could be published. In 2007, the FDA also began to require study registration as part of the drug approval process. Today the National Institutes of Health requires it of any study they fund.

The same was true with physicians who accepted money from companies that make the drugs and devices they prescribe, said Bernard Lo, president of the Greenwall Foundation for bioethics research and the chair of a 2009 National Academies report on conflicts of interest in medicine. Years of surveys — where doctors voluntarily offered information about their financial relationships — helped to build the case for state laws that mandated disclosure, which, themselves, helped create momentum to make this kind of transparency part of the Affordable Care Act.

We’re seeing a similar pattern happening with presidential conflicts of interest. Disclosing tax returns has never been legally required of presidential candidates — but every candidate for the past 40 years has volunteered disclosure, said Larry Noble, senior director of the nonpartisan Campaign Legal Center. Trump’s choice to withhold that information has made the public, ethicists and lawmakers more aware of how important that disclosure is. Several state legislatures — including New Jersey, Hawaii, California, New Mexico and Oregon — are now pushing bills that would make disclosure of tax returns mandatory for any presidential candidate who wants to be on the ballot.

Trump’s bucking of voluntary disclosure norms has also drawn attention to how little presidents are required to report to begin with. Presidents fill out conflict of interest forms, Noble said. But those forms leave out a lot of detail. Personal businesses and LLCs have to be reported, but currently, “you don’t know who is behind it, what partners there are, what investors there are,” he said. Both he and Richard Painter, a University of Minnesota law professor who was also George W. Bush’s chief ethics lawyer, said they would want to see changes to the level of detail those forms require.

But, according to Resnik, disclosure isn’t enough: “It doesn’t eliminate the problematic situation.” All it does is tell people about it.” Sometimes that can be sufficient to alter the way an industry operates — in the medical field, for instance, Pfizer began sharing information about its studies that had previously been considered trade secrets as the peer pressure around disclosure norms increased. But, experts said, the big takeaways are that disclosure is a necessary first step — and that enforcement needs to come next.

When it comes to the office of the president, it’s the matter of enforcement that comes up short. Many conflict of interest rules for government officials don’t apply to the chief executive. Even when it looks like the president might be violating the rules that do apply to him, Painter said, nobody has the direct authority to do something about it. The emoluments clause of the Constitution — which forbids government officials, including the president, from accepting money and gifts from foreign governments — could apply to some of Trump’s business holdings overseas. But there’s no agency that has authority to investigate or enforce that without first convincing a court there’s a problem. Painter is part of a group of legal and ethics experts currently trying to do just that.

“There ought to be specific authority given to an executive branch agency to enforce emoluments and tell people when they’re in violation and when they’re not,” Painter said. That’s something that has support from Noble, as well as from Walter Shaub, his colleague at the Campaign Legal Center who was, until July, Trump’s head of the Office of Government Ethics. The OGE has an advisory role for now. Maybe, in the future, the CLC or some spin-off agency will have an enforcement role.

Medical and scientific communities have had to learn the hard way that even well-intentioned ethics rules can have unintended consequences. After years of increasing mandatory disclosures there’s now a growing stigma against any kind of financial association with the pharmaceutical industry. “I think the fear [is that it might] unnecessarily deter collaboration when that could be for the public good,” she said. The assumption that all connections to industry are inherently bad can lead to impractical, and unreasonable, choices. Should a researcher have to reject a grant from the American Cancer Society because that organization might accept money from pharmaceutical companies? Probably not, Resnik said.

Similarly, Painter and Noble said, it would be impractical — and possibly unconstitutional — to have the president recuse himself from every decision that crossed paths with his finances. Nobody expects senators to sell the family farm before they can serve on the agriculture committee. This isn’t an all-or-nothing situation.

More importantly, science and medicine have taught us that no matter what changes get made, we may never know whether they worked. Neither Bourgeois, Lo, nor Resnik knew of any research that could show whether changes to medical conflict of interest rules had produced fewer conflicts of interest. And it could be impossible to prove definitively, Resnik said, because there are more variables at work than a single policy. But experts said that in both medicine and government, values still matter and there’s reason to want rules based on those values, even if we aren’t sure how effective they are. “Is it important for elected officials to make decisions on what is best for the country or what is best for them?” Noble said. “I think most people would say ‘the country.’”

Maggie Koerth-Baker is a senior science writer for FiveThirtyEight.

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