Michael Dorf: Will Trump’s Business Interests Moderate Him?

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Donald Trump across the street from the site of the Trump International Hotel and Tower in Chicago on May 10, 2006. Michael Dorf writes that if Trump rationally pursues his own economic interest, he will try to moderate the likes of his Israel ambassador pick, David Friedman, because war between Arabs and Israelis is bad for the Trump brand throughout the Middle East. Stephen J. Carrera/reuters

This article first appeared on the Dorf on Law site.

In prior essays, I joined the chorus of people condemning Donald Trump's woefully inadequate efforts to ensure that his business interests do not interfere with his official duties as president.

I first explained that in addition to the obvious problems created by Trump's conflicts of interests, the appearance and perhaps reality of corruption could spread corruption.

I then explained how, notwithstanding the personal identification of the Trump brand with Trump himself, Trump could indeed sell his interests in his businesses and put the resulting proceeds in a genuine blind trust, but only if he is willing to forgo what I called the "corruption premium."

Trump continues to provide evidence that he nonetheless intends to pocket the corruption premium.

Meanwhile, a persuasive new paper by Norman Eisen, Richard Painter and Laurence Tribe concludes that Trump will be in violation of the Emoluments Clause from the moment he takes the oath of office. I urge readers who are interested in the Emoluments Clause issue to read it or at the very least the brief executive summary.

What will come of the Emoluments Clause issues? Congress has roughly three options:

1) it could "consent" to Trump's receipt of "present[s]" and "Emolument[s]" from foreign governments, thus, per the terms of the Emoluments Clause, eliminating any constitutional violation (but not addressing the underlying risks of corruption and foreign influence);

2)  it could impeach and remove Trump for violating the Emoluments Clause;

or (3) it could ignore the problem.

Related: Michael Dorf: resistance to Trump is not futile

Because I think ignoring the problem is by far the most likely path, I want to focus here on the consequences of Trump's conflicts of interest. I shall indulge a little bit of what passes for glass-half-full optimism these days by asking whether there could be an upside to the fact that Trump will remain keenly aware of his own business interests, even if he does not handle day-to-day operations.

According to the doux-commerce thesis (which has been around at least since the 18th century) the sentiments necessary for and activated by participation in a market economy conduce to peaceful relations between individuals and nations. At its core, the idea is that war is bad for business.

Doux commerce is pretty obviously false as a universal claim. Some businesses—e.g., munitions manufacture—benefit from war. Moreover, there are contexts in which a president's business interests will lead him to turn a blind eye to immoral or illegal conduct by governments and private actors.

As Kurt Eichenwald reports, that already appears to be happening in various locations, including the Philippines, where Trump-harbinger, Hitler-praising President Rodrigo Duterte's campaign of killing suspected drug dealers without any semblance of due process has earned praise from Trump, perhaps because, as Eichenwald puts it, "rooting out crime in the Philippines is good for the real estate values" and Trump has substantial interests in real estate market in the Philippines.

So, no, doux commerce is hardly a panacea. The glass is at most half full.

But half full, indeed, even one-tenth full, is still better than completely empty. The relevant question for the doux-commerce hypothesis as applied to Trump is not, Will Trump's business interests pull his foreign policy in a good direction?

The question is, Will Trump's business interests pull his foreign policy in a better direction than it would head in the absence of those business interests?

The answer to that question could be yes.

Consider the Middle East. A few days ago, Trump announced that he plans to nominate David Friedman as ambassador to Israel. Friedman is a bankruptcy lawyer with no diplomatic experience, which is not in itself all that unusual. Presidents of both parties frequently dole out ambassadorships to political allies, although usually they send actual diplomats to hot spots.

In any event, Friedman's lack of qualifications are much less troubling than his views, which are about a full standard deviation to the right of those of Bibi Netanyahu.

Perhaps Trump chose Friedman as payback to Orthodox Jews, who were much more likely to support him than were American Jews generally. (According to Pew, a higher percentage of Jews voted for Clinton than did members of any other religious group, although the data lump Muslims in with "other." If broken out separately, I suspect that the data would show that Muslims rejected Trump by a larger percentage than any other religious group.)

It's also possible that Trump chose Friedman because he saw him as a kindred spirit—as a man given to outrageous statements for which he does not apologize, like calling American Jews who support a two-state solution to the Israel/Palestine conflict--which is to say a clear majority of American Jews—worse than kapos, the Jews who assisted Nazis in the death camps.

Whatever Trumpian logic led the president-elect to select Friedman, if he is confirmed and given real power, Friedman is very likely to pursue policies that increase the odds of war, terrorism and human suffering more broadly.

Or, what amounts to the same thing, even if Friedman himself does not call the shots but if his selection reflects the priorities of the Trump administration, that will have terrible consequences. Friedman's support for "annexation" of the West Bank and for moving the U.S. embassy to Jerusalem will severely undercut the already-slim chances for the making of "a deal" between Israel and Palestine, Trump's at least nominally stated aim.

More broadly, Trump's ideological approach to conflicts in the Middle East is to throw fuel on the fire. As I noted previously, his views are incoherent. He simultaneously demonizes Iran even as he wants to work closely with Iran's Russian pro-Assad allies in Syria.

The incoherence undoubtedly stems from Trump's unwillingness to acquire the knowledge possessed by even a reasonably well-educated 20-year-old, much less to sit through intelligence briefings. To make matters worse, Trump's basic approach is reflexively aggressive.

To be sure, Trump is not exactly a warmonger. He broke with the neocon wing of the GOP and in some ways ran to the left of Clinton's Scoop-Jackson-inflected muscle flexing. Trump doesn't seem to want to get the U.S. into more foreign wars. It's just that his ignorance, arrogance and bombast pose a risk of starting them. Likewise, his overheated rhetoric on terrorism will likely produce blowback.

Put simply, if left to do what they think is best, all things considered, Trump and the top people that carry out his administration's foreign policy will very likely do things that are horrible because of their arrogance, ignorance, and (for some but not all of Trump's people) ideology.

Thus, it is at least possible that by pulling the Trump administration away from what Trump and his people think they ought to do, Trump's business interests will push U.S. foreign policy towards better (though still not ideal) positions.

To illustrate, let's stick with the Middle East. Despite a few efforts to strike deals with local developers, apparently Trump does not currently have any substantial property interests in Israel, but he does have substantial business interests in other parts of the Middle East.

If Trump rationally pursues his own economic interest, he will try to moderate the likes of David Friedman, because war between Arabs and Israelis is bad for the Trump brand throughout the Middle East.

The same point should be true in other regions. Peace is good for business. War, terrorism and trade wars are bad for business.

I'll end with two caveats. First, by invoking doux commerce, I do not mean to suggest that Trump actually internalizes the cooperative attitudes that, according to Albert Hirschman, commerce induces. I agree with Professor Neil Buchanan when he writes that Trump does not believe in capitalism, because Trump only understands win/lose, not win/win.

However, Trump doesn't need to understand capitalism to respond to economic incentives. Even a minimally rational Trump would understand that war and terrorism are bad for the luxury hotel business.

That brings me to the second caveat: Trump is not necessarily even minimally rational. After all, if he were, how could he have run a blatantly anti-Muslim campaign and designated Mike Flynn as his National Security Advisor despite the latter's notoriously anti-Muslim statements?

Wouldn't a minimally rational Trump have realized that these actions would be bad for his brand in majority-Muslim countries?

The short answer is yes. Trump may not be even minimally rational. Accordingly, I conclude that Trump's business interests in other countries have the potential to moderate the terrible course he would otherwise choose if he were guided only by his own policy preferences and those of the people who will surround him, but that they probably won't.

At best, the glass has a drop of water in it, but perhaps it is indeed empty. It is Schroedinger's glass.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University . He blogs at dorfonlaw.org.

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