Stopping Trump’s profiteering: How to actually ban presidents from earning outside income
Corruption, profiteering and conflicts of interest have become hallmarks of President Donald Trump’s second term. His most recent financial disclosure revealed that he brought in at least $2.2 billion from his business dealings in 2025, which amounts to significantly more than the over $1.6 billion he made over the course of his entire first term, meaning that he is on pace to make over five times as much money during his second term in public office than he made during his first. This includes over $117 million from overseas business interests and more than $1.4 billion from his cryptocurrency business dealings. This naked profiteering undermines democracy and harms Americans who can no longer trust that their government is working for them rather than the wealthy and powerful who can buy access and influence with Trump. Unfortunately for the American people, the current set of executive branch ethics laws are not built to handle this level of corruption by a sitting president.
Enacting new laws to prevent presidential profiteering as an obvious response to the countless ways in which Donald Trump has misused and abused his office, but there are significant practical and constitutional challenges in applying the same ethics requirements that apply to other government officials to the president or the vice president. Fortunately, the challenge of crafting a law which can prevent presidential profiteering is not insurmountable.
The first step towards a solution is a full and enforceable ban on any future president or vice president from earning outside income while in office.
Current laws and regulations
Many of the ethics provisions that apply to the rest of the executive branch do not apply to the president. The Ethics in Government Act of 1978 created the Office of Government Ethics (OGE) to provide “overall direction of executive branch policies related to preventing conflicts of interest on the part of officers and employees of any executive agency.” Under its authority, OGE established regulations, which include a ban covering the most senior presidential appointees receiving “any outside earned income for outside employment, or for any other outside activity, performed during that Presidential appointment.” A statute, along with a related regulation, restricts certain other noncareer executive branch employees to a 15% limitation on outside earned income. Furthermore, a criminal statute (18 U.S.C. 208) and its implementing regulation (5 C.F.R. § 2635.402) prohibits officials from “participating personally and substantially in an official capacity in any particular matter in which, to the employee’s knowledge, the employee or any person whose interests are imputed to the employee under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest.”
In the case of the president, OGE has traditionally relied on recommendations and norms—rather than any explicit prohibitions. However, President Trump’s unabashed self-dealing has shattered the perception that OGE, as it currently exists, can serve as a meaningful guardrail to guide the president’s conduct or hold the president accountable.
Constitutional challenges
The American public should be able to expect that both career officials and the president are making decisions free of conflicts. However, there are distinct constitutional differences between the president and other members of the executive branch. For example, it is comparatively simple to impose a legal requirement that a career official may not work on a project if they hold stock in a company affected by that project, it is more complicated to impose a requirement that a president sits out a decision on whether to order a military action which may affect his or her business interests. This complication is why preventative measures to prevent the conflict in the first place are so important when thinking about ethics rules for the president.
In a 1974 letter addressing the constitutionality of millionaire Nelson Rockefeller’s confirmation as Vice President, then-Acting Attorney General Laurence H. Silberman explained two key constitutional concerns surrounding conflicts of interest and the president: 1) Any prohibition on conflicts of interest likely cannot require the president to recuse himself in the manner that law requires for other employees, as it would potentially render him unable to perform duties under his sole constitutional authority; and 2) Congress likely cannot establish a prohibition by statute amounting to a qualification for the office of President beyond those enumerated in the Constitution, which are expressly limited to only three: citizenship, age and residency.
Generally, ethics laws suggest that a government official must recuse from matters which have “direct and predictable effect” on that official’s financial interests. Applying such standards to the president creates potential constitutional problems. For instance, a 2019 analysis of presidential disqualification and recusal issued by the Congressional Research Service notes that the president is “the sole official vested with constitutional authority to sign legislation, which is required for it to take effect.” A law that bars the president from signing legislation because of a conflict of interest would be constitutionally problematic.
President Trump has suggested in court that his outside income cannot be regulated. In 2019, his attorneys argued before the United States Court of Appeals for the District of Columbia Circuit in Trump v. Mazars USA that “imposing conflict-of-interest laws on the President would impermissibly ‘change or expand the qualifications for serving as President’” because it would require the president to either divest or place assets into a trust, and this would constitute an additional qualification for the office of president.
In an attempt to support this argument, President Trump’s filing in Mazars cites two Supreme Court cases—a 1969 case, Powell v. McCormack, which held that a member of Congress could not be denied his seat because of misappropriation of public funds because he still met the required constitutional qualifications, and a 1995 case, U.S. Term Limits v. Thornton, which reaffirmed that Congress may not alter or add to the qualifications in the Constitution and also warned against indirect approaches “with the avowed purpose and obvious effect of evading the requirements of the Qualifications Clauses” of the Constitution.
If a ban on presidential profiteering were written in a way that disqualified violators from office (e.g., a president who made outside income in his first term may not run again) or prevented a class of candidates from being able to run in the first place, perhaps that could be seen as an unconstitutional qualification for the presidency. While the court in Mazars declined to issue a decision on whether applying conflicts of interest laws to the president would change the qualifications for serving as president, any effort to enact meaningful ethics reforms to address presidential conflicts of interest must carefully consider the risk that a future court may be persuaded by such a misguided argument.
As long as the restrictions on the president are carefully focused on addressing the private financial benefits he is collecting and does not prohibit exercise of presidential duties, it should not be constitutionally problematic.
Two other Supreme Court cases, Nixon v. Fitzgerald (1982), and Clinton v. Jones (1997), articulate an entirely separate constitutional obstacle to enforcing ethics requirements against the president. These cases suggest that it may be problematic to impose civil monetary penalties on the president for violating ethics laws. In Fitzgerald, the Supreme Court held that the president has “absolute immunity from damages liability predicated on his official acts.” In Jones, the Supreme Court explained that the “dominant concern” was that such liability would distort the president’s “decisionmaking process” when performing the duties of office.
While President Trump has already tested the limits of presidential immunity on multiple occasions, imposing a civil monetary penalty on the president for violating a ban on earning outside income should not pose a constitutional problem. A president’s outside income is necessarily outside even the outer perimeters of his official acts. There is no basis to claim that fear of a suit arising out of private financial interests would prevent the president from dealing fearlessly and impartially with his duties, as was the main concern of the Supreme Court in Fitzgerald. In fact, the opposite is true: such a prohibition would help restore impartiality to the office, requiring the president to focus on the public interest rather than his private interests. Additionally, even if there were a way to tie outside income to an official act, the Supreme Court’s ruling in Fitzgerald seems careful to avoid ruling on whether Congress can take legislative action expressly intended to subject the president to civil liability.
A viable reform to prevent profiteering
Given these constitutional concerns, the key to designing meaningful reform to prevent Donald Trump or a future president profiting off their office will be designing a prohibition on outside earned income that is carefully tailored to neither create a new qualification for the Office of the President, nor prevent the president from performing any of his required duties. It must also be effective in the current political climate, especially given the recent setbacks in independence within the executive branch.
Congress can and should legislate a statutory ban on the president and vice president earning outside income while in office, with care to ensure that they can’t simply delay, or defer, income until after they leave office. Furthermore, requiring that the president or vice president disgorge any outside income earned in violation of such a ban appears to be the easiest and most effective way to withstand any constitutional challenges. It would remove the potential for self dealing while in no way impairing the president’s, or the vice president’s, ability to perform the duty of their office. Moreover, it would not alter qualifications for anyone to serve in either office.
How to enforce reform
The enforcement mechanisms currently available to OGE and the rest of the executive branch are not likely to be effective against a corrupt president—therefore there must be external options for enforcement by Congress, state AGs or private actors.
The Trump administration has demonstrated that it would be very problematic for enforcement authority for any penalty to be exclusively held by the executive branch of the federal government. President Trump, as part of a broad effort to destroy the independence of agencies and oversight mechanisms, has destroyed the impartiality of the DOJ, has installed loyalists in his Cabinet, and actively undermined the guardrails which have typically been relied upon to root out and respond to misconduct, conflicts of interest and corruption.
After the Supreme Court’s recent decision in Trump v. Slaughter, it appears that a president can fire principal officers at will should they choose to investigate him, and the increasingly politicized nature of agencies like the DOJ makes it highly unlikely that any investigation would arise in the first place, even with clear evidence of misconduct. To ask OGE, the DOJ, or any other executive agency to enforce a prohibition like this against Trump or any other future president engaging in profiteering, ignores the enormous power that a corrupt president now wields over the executive branch.
It is essential that any enforcement mechanism for a prohibition on presidential outside income or any other conflict of interest concurrently provides a private right of action or enforcement by a state attorney general to pursue disgorgement of any illegal profits. Including a longer statute of limitations would also empower a future administration to address potential violations of the one before it.
Congress could also codify violations of the prohibition as an impeachable offense, or, at least, potential evidence of an impeachable offense.
The dangers posed by a president using the office to profit are significant—a knowing violation of a statute that prohibits earning outside income in order to prioritize personal gain over the American people could certainly qualify as a reason for impeachment. While this codification would not be binding on a future Congress, providing clear standards designed to build public trust in the presidency could serve as a beneficial guide for future investigations and may make it easier to utilize the impeachment power, including through subpoenas, to identify misconduct and hold a corrupt president accountable.
Conclusion
It is imperative for Congress to make it a priority to address President Trump’s dangerous conflicts of interest, and banning his outside income is the right place to start. Americans need to trust that our government, and especially our president, is working in their best interests, not anyone else’s. Stopping the flow of money from outside sources is a necessity to restore that trust.