Our first post about conflicts of interest appeared on December 22, 2004, and was about "senior NIH scientists [who] were collecting hundreds of thousands of dollars in consulting fees and stock from industry." We were not the first to be concerned about the problems resulting from financial relationships among health care professionals, academic health care institutions, and other health care non-profits on one hand, and the commercial health care industry on the other.
In 2009, the US Institute of Medicine, now part of the National Academy of Medicine published a report entitled "Conflict of Interest in Medical Research, Education, and Practice" which included specific recommendations for reducing them. Unfortunately, despite the prestige of the then IOM, the report seemed to vanish without much of a trace (look here)
A report from the IOM which recommended decreasing conflicts of interest affecting the production of clinical practice guidelines was similarly anechoic (look here and here). Egregious examples of conflicts of interest in medicine and health care continue to appear in the media. For example, per a Dec 6, 2019, ProPublica article, a newly disclosed US government database listed 8000 that shows that disclosed "8,000 'significant' financial conflicts of interest worth at least $188 million since 2012" affecting researchers funded by the National Institutes of Health. Moreover, the conflicts disclosed in such databases or discussed in the media may just be the tip of the iceberg.
It should be no surprise that conflicts of interest remain prevalent despite various reform efforts. Such conflicts benefit the parties involved inthem but harms to other people may not be obvious. Consider, for example, a pharmaceutical company paying a key opinion leader thousands of dollars to give talks and write articles that might help it market a particular product. The key opinion leader makes more money. The pharmaceutical company may sell more product. Disadvantaged are the patients whose physicians were persuaded by this ploy to prescribe the drug when other drugs or approaches might have benefited those patients more. But these patients and physicians may never connect their less than optimal outcomes with the conflicts of intereat that enabled their bad results. Those who do not realize how conflicts of interest hurt them are not likely to campaign against these conflicts. Howver, those who benefit from the conflicts are likely to resist any efforts to reduce them.
But if at first you don't succeed, try, try again...
The New BMJ Article
In December, 2019, the British Journal of Medicine published "Pathways to independence: towards producing and using trustworthy evidence" (Moynihan R, Bero L, Hill S et al. BMJ 2019; 367: l6576. Link here.), with authors from eight different countries. They argued that:
endemic financial entanglement is distorting the production and use of healthcare evidence, causing harm to individuals and waste for health systems. Building on the evidence and practical examples cited below, we propose pathways towards financial independence from industry across healthcare decision making.
The article provided a good quick summary of the reasons that various kinds of conflicts of interest can harm patient care, education, research, and health policy making, and proposed the following:
Governments require independent production of evidence used for healthcare decision making, including the evaluation of new treatments, tests, and technologies
Governments require that public healthcare organisations, including regulatory and health technology assessment agencies, receive no industry funding and that their advisers have no financial relationships with industry
Groups conducting research synthesis, including systematic reviews, ensure reviewers have access to all information on study methods and all relevant study results, including clinical study reports, and are conducted without industry funding and by authors with no financial relationships with companies that could benefit from the outcomes
Professional, advocacy, or academic groups engaged in educational activities for health professionals or the public or advocacy affecting regulatory or policy decisions, move to end reliance on industry funding and end financial relationships between their leadership and industry
National governments work with professional associations and licensing bodies to develop policies that ensure educational activity supported by industry cannot contribute to accreditation of health professionals
Medical journals and their editors move to end reliance on healthcare industry income
Professional groups, hospitals, health services, and governments prohibit marketing interactions between industry and decision makers, including practising professionals, and actively support development of healthcare information independent of commercial interests
Professionals, policy makers, and the public move to reliance on practice guidelines produced and written by groups that have no financial relationships with industry and that have access to evidence, including research synthesis, free of industry influence
Research funding bodies and academic institutions modify academic metrics and incentives explicitly to reward academic collaboration with public agencies and civil society groups as well as industry
These proposed pathways arise from our analysis of the relevant evidence and examples from around the world. The list is not comprehensive or definitive and is designed to inform intensified debate and development of detailed recommendations.
The authors did not claim their pathways were "comprehensive or definitive," but hoped they would "encourage development of more detailed practical recommendations for change." Will this new push to challenge prevalent conflicts of interest in medicine and health care make a difference? On one hand, the international approach could be more successful than the previous Institute of Medicine reports which focused only on the US. On the other hand, since the IOM reports came out, the reign of conflicts of interest in the US has only gotten worse, especially within the US government. Yet the new BMJ article depends on government to go down many of the proposed pathways.
Emoluments from Home and Abroad
Concerns about conflicts of interest affecting the US government date back hundreds of years, but had largely been forgotten. The actions of the current Trump administration have awakened interest in how the framers of the US Constitution tried to forestall conflicts of interest affecting the executive branch of government.The Constitution includes two clauses that appear to forbid certain specific conflicts of interest. They had been largely forgotten, and their meaning obscured by their use of now archaic language.
Article I, Section 9 states:
No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.
Article II, Section 1 states:
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
The word "emolument" is now rarely used However, at the time of the writing of the Constiution its meaning was payment, thing of value, profit, advantage, or gain. An NPR article described the efforts of one law professor, John Mikhail, a professor at Georgetown Law School, to research the meaning the framers would have understood. He:
looked at all the known dictionaries between 1604 and 1806 that define emolument -- 40 books in all. He said only three gave definitions in ways favorable to Trump, 'kind of a narrow, even technical meaning, tied to the salary or official duties of an office,' while the other 37 used 'a broader meaning that would encompass sort of the profits of ordinary market transactions.'
Almost all of the dictionaries used the word profit in their definitions. The two other go-to words were advantage and gain.
The Foreign and Domestic Emoluments Clauses As Prohibitions of Conflicts of Interest Involving the US President and Other Government Officials
John Medwed, the WGBH legal analyst, explained the origin of the "foreign emoluments clause," (Article I, Section 9) this way,
it emerged out of a fear that wealthy Europeans would ply American ambassadors with gifts and somehow curry favor and influence foreign policy. And back in the 1700s, that was a real concern. Benjamin Franklin famously received a diamond encrusted box from the king of France. And that caused titillation all through the upper crust, this concern that the French would dictate our foreign policy. That's what led to the emoluments clause.
So the foreign emoluments clause seems to forbid all officials of the US government from receiving any payments, gifts, or anything else of value from foreign governments.
In Vox, Ian Milhiser, a senior legal correspondent with extensive legal background, put it this way:
There is a reason the Constitution singles out transactions with foreign governments as forbidden. As Alexander Hamilton explained in the Federalist Papers, 'one of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption.' In a monarchy, the chief executive shares an identity with the state, so a king or queen 'has so great a personal interest in the government and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the state.'
But in a republican state, where leaders serve temporarily and keep their finances separate from that of the nation, 'persons elevated from the mass of the community, by the suffrages of their fellow-citizens, to stations of great pre-eminence and power, may find compensations for betraying their trust.
The framers, in other words, believed that federal officials would be uniquely vulnerable to the corrupting influence of a foreign state. The foreign emoluments clause offers a shield against that corruption — assuming that it is enforced.
So there seems to be a very good argument that the framers of the US Constitution tried very hard to prevent a certain kind of conflicts of interest, those arising from a US government official receiving financial or material benefit from a foreign government.
Similarly, Milhiser succinctly wrote,
the domestic emoluments clause limits the president’s ability to profit off of either the federal government or a state government.
Thus the framers also sought to prevent the President and other officials form self-dealing, and from having conflicts of interest involving state governments.
President Trump's Numerous and Conspicuous Violations of the Emoluments Clauses, that is, Numerous and Flagrant Conflicts of Interest
The emoluments clauses remained largely obscure for over 200 years, probably because they were mostly respected, until the regime of Donald Trump.
We noted, most recently here, several well documented sources listing thousands of examples of Trump and cronies' conflicts of interest and corruption, including many instances about his conflicts of interest that seem to violate the emoluments clauses.
These conflicts largely arise from a historically unprecedented situation. Trump is the only known president to have maintained ownership of extensive business operations while in office. Per Wikipedia,
The Trump Organization is a group of about 500 business entities of which Donald Trump is the sole or principal owner. About 250 of these entities use the Trump name. The organization was founded in 1923 by Donald Trump's grandmother, Elizabeth Christ Trump, and father, Fred Trump, as E. Trump & Son. Donald Trump began leading it in 1971, renamed it around 1973, and handed off its leadership to several of his children in 2017.
The Trump Organization, through its various constituent companies and partnerships, has or has had interests in real estate development, investing, brokerage, sales and marketing, and property management. Trump Organization entities own, operate, invest in, and develop residential real estate, hotels, resorts, residential towers, and golf courses in various countries. They also operate or have operated in construction, hospitality, casinos, entertainment, book and magazine publishing, broadcast media, model management, retail, financial services, food and beverages, business education, online travel, commercial and private aviation and beauty pageants. Trump Organization entities also own the New York television production company that produced the reality television franchise The Apprentice. Retail operations include or have included fashion apparel, jewelry and accessories, books, home furnishings, lighting products, bath textiles and accessories, bedding, home fragrance products, small leather goods, vodka, wine, barware, steaks, chocolate bars, and bottled spring water.
Since Trump is the major owner of the Trump Organization, profits made by it largely go to him. Thus a payment to that organization, less operating costs and whatever interest other owners, essentially his children, have, is a payment to him.
Emoluments from Foreign States
As summarized in the voluminous "Tracking Corruption and Conflicts in the Trump Administration" report section of the Global Anti-Corruption blog, the Trump Organization has been paid numerous times by foreign government.
Payments to Trump Organization Hotels
Attention has particularly focused on a single property, the Trump International Hotel in Washington, DC. Per the report,
A number of concerns center on the Trump International Hotel in Washington, D.C., and in particular on whether foreign governments, or agents of foreign governments, may seek to curry favor with the Trump Administration by booking rooms and events at the hotel.
a leaked email from September 2017 indicated that, despite public assurances to the contrary, President Trump is 'definitely still involved' in the D.C. hotel’s business. Moreover, shortly after the election, the hotel hosted a promotional event aimed specifically at foreign diplomats, which almost 100 diplomats attended. Since then, there have been numerous reports of private companies and foreign governments paying for rooms and events at the Trump International Hotel, including in 2018 an Amazon subsidiary with billions of dollars in government contracts. As of May 4, 2018, the patrons at the hotel included 59 political groups, eight foreign governments, and 25 business interest events (industry or lobbying).
The report notes that the foreign governments that have "spent substantial sums at this D.C. hotel, with the possible intention to ingratiate themselves with the administration" included Bahrain, Azerbaijan, Saudi Arabia, Kuwait, Turkey, Malaysia, Philipines, Afghanistan, Iraq, Ukraine, and Romania.
More broadly, in the Citizens for Responsibility and Ethics in Washington (CREW) report on Trump's conflicts of interest:
Since President Trump took office, officials from 65 foreign governments, including 57 foreign countries, have visited a Trump property. Altogether, foreign officials account for 137 visits in total, 97 of which have been made to the Trump International Hotel in Washington, D.C.
Many of these visits have come from large events hosted by foreign governments, some of which switched venues to hold annual events at Trump properties after he became president. The embassy of Kuwait had, for example, typically held its annual national day celebration at the Four Seasons prior to President Trump’s election. The last three years, however, it’s held the event at the Trump hotel in D.C. In 2018, the Romanian consulate in Chicago moved its own national day celebration to the Trump hotel in Chicago after hosting it at the Chicago Cultural Center five years in a row.
While events like these are likely to be incredibly costly—and thus raise the likelihood of the president financially benefiting from payments made by foreign entities—neither the Trump Organization nor the Trump administration has released the financial details beyond an annual payment to the Treasury the Trump Organization claims represents profits from foreign government funds.
Turkish officials have made 14 visits to Trump properties, more than any other country. This can partially be credited to two annual conferences on U.S. relations with Turkey that have been held at President Trump’s D.C. hotel. This year, two advisors to President Recep Tayyip Erdoğan and the ministers of trade, defense, and treasury all attended the event.
Other events have drawn officials from countries that span continents or regions. In February, the Embassy of Kuwait in D.C. held a Kuwaiti independence day celebration at the Trump Hotel, with officials from all over the Middle East and North Africa in attendance. The 13 foreign officials in attendance included representatives from Kuwait, Yemen, Saudi Arabia, Oman, Iraq, Sudan, Yemen, and Libya.
Other officials have patronized Trump businesses around the time they met with President Trump. The Romanian President and Nigerian Vice President both visited the Trump hotel while in D.C. for meetings at the White House, and the Romanian Prime Minister is known to have stayed there.
[Trump Tower Chicago]
Payments Derived From Real Estate Transactions
If that were not enough, there are numerous instances of payments to or benefits received by the Trump Organization from foreign governments that do not involve its hospitality business.
The Global Anti-Corruption Report noted that foreign governments and entities associated with them have rented and purchased Trump real estate. These included "foreign government banks such as the Bank of India and Industrial & Commercial Bank of China." Also,
the government of Qatar bought an apartment in one of President Trump’s New York towers for $6.5 million. As of June 2018, Qatar owned four units in the building for which it has paid a total of $16.5 million. Additionally, at least seven foreign governments—including Iraq, Kuwait, Malaysia, Saudi Arabia, Slovakia, Thailand, and the European Union—rented units at Trump World Tower in New York in 2017. (The Trump Organization does not own Trump World Tower, but it does manage the building, which means it benefits indirectly from renters in the form of management fees paid by those who own the units.) While most of the governments had also rented their units in 2015 and 2016, two of them—Iraq and Slovakia—only began renting in 2017.
President Trump has a long history of lucrative financial dealings with Saudi Arabian partners, including those in or close to the Saudi government.
The Trump Organization is currently developing a luxury resort on the Indonesian island of Bali. The Bali local government provided public land for the project, granted numerous licenses and permits, and is planning to build (at government expense) a toll road extension that will substantially shorten the drive from the airport to the Trump resort—a decision that has raised concerns that the government may be deliberately undertaking an infrastructure project to curry favor with the U.S. president. (On August 13, 2019, Donald Trump Jr. attended an event in Indonesia to celebrate the development of two Trump properties in the country. Though the event was not affiliated with the United States government, pictures of the event reveal that several Indonesian government officials)
The Trump Organization developed a luxury hotel in Panama City, and the Panamanian government has stepped in to aid the project in various ways, including government-funded repair of privately-owned sewage and drainage systems, use of the hotel for various government functions, and favorable permitting and tax decisions—decisions that, while not illegal or necessarily improper, raise significant concerns about conflicts of interest. The drama concerning this property continued in February 2018, as the building’s majority owner, Orestes Fintiklis, tried to fire the Trump Organization for mismanaging the hotel’s finances, but the Trump Organization refused to leave, instigating a standoff in which the police were called; the Panamanian government is currently investigating whether there was 'punishable conduct' by the Trump Organization.
Other Payments to the Trump Organization by Foreign States
Other Trump Organization operations have benefited from the actions of foreign governments, in particular,
in February 2017 President Trump reaffirmed the U.S. commitment to the so-called 'One China Policy.' Within a week of this announcement, the Chinese government granted the Trump Organization long-coveted Chinese trademarks for the 'Trump' brand. As of June 2017, the New York Times reported that President Trump had 123 trademarks registered and provisionally approved (meaning they would be approved within three months if there were no objections) in China.
Emoluments from the US Government
Independent of the salary and benefits President Trump receives from the government, the Trump Organization has received payments made by the US government. The Global Anti-Corruption blog report noted in general that
One of the most direct ways that President Trump can profit from the presidency is by making decisions that effectively require U.S. government agencies to purchase goods or services from the Trump Organization.
Specific instances it listed included:
One of the most direct ways that President Trump can profit from the presidency is by making decisions that effectively require U.S. government agencies to purchase goods or services from the Trump Organization.
Department of Defense at Trump Tower: The Department of Defense has followed its standard practice of setting up a separate headquarters near the President’s private residence—in this case also in Trump Tower.
Trips to Mar-a-Lago and other Trump Properties: As of September 3, 2019, President Trump had spent 293 days at properties owned by the Trump Organization, with the bulk of that time at the Trump National Golf Club in Bedminster (90 days) and Mar-a-Lago resort in Florida (99 days).... On these visits, the Secret Service must pay the Trump Organization directly for any costs related to protecting the president. In fact, a Government Accountability Office report concluded that the Secret Service paid about $60,000 to the Mar-a-Lago resort for four trips between February and March 2017 alone
Trump Properties Abroad: If President Trump or his immediate family travel abroad and choose to stay at a Trump property, the U.S. government will pay the Trump Organization to rent space for the Secret Service and any additional necessary support. For example, the State Department paid at least $60,000 to the Trump Organization’s golf resort in Scotland when President Trump stayed there in July 2018.
Emoluments from US States
Payments by state governments to Trump via the Trump Organization have not been tracked so assiduously, but the Global Anti-Corruption Blog report noted,
At least 33 state-level officials also visited Trump properties, including nine governors, two lieutenant governors, and 15 members of state legislatures.... If these visits are taxpayer funded—and ongoing public records requests are seeking to find out—officials could be diverting public funds into the president’s private trust. This concern appears to have been borne out in a recent investigation by the Portland Press Herald, which found that former Maine Governor Paul LePage and his staff spent at least $22,000 in Maine taxpayer money staying at the Trump International Hotel over a two-year period—an amount far in excess of the state spending limit for this type of expense.
Public pension funds in California, New York, Texas, Arizona, Montana, Michigan, and Missouri—with more than five million members—have millions of dollars invested in The CIM Group, a Los Angeles-based investment group that owns The Trump SoHo Hotel and Condominium. Through 2017, the CIM Group paid Trump International Hotels Management LLC 5.75% of Trump SoHo’s operating budget, resulting in millions of dollars in payments. Thus, these state pensions paid millions of dollars almost directly to the Trump Organization through the CIM Group.
In 2017, the Trump Organization announced a new mid-priced hotel chain, Scion (soon followed by another chain, American Idea). The first Scion hotel was granted a tax break in 2018 worth over $6 million from the Mississippi Development Authority.
The article by Moynihan et al in the BMJ is the latest effort to challenge conflicts of interest affecting health care professionals and academic health care organizations. There are many barriers to the success of such reform efforts, most notably resistance from people who are directly benefiting from ongoing conflicts: in this case, health care professionals and management of the commercial firms making the payments to them that generate the conflicts.
In the US, we now have a particular barrier to addressing conflicts of interest in health care. Moynihan et al call on national governments to take various actions to reduce such conflicts. However, the US government is now led by a President whose personal conflicts of interest are voluminous, severe, and brazen. Many of them appear to directly violate provisions of the US constitution that forbid emoluments (payments, gifts, or transmission of other things of value) to the President by foreign states, the US government, or state governments. The government under Trump has shown little interest in challenging conflicts of interest or corruption unless doing so would politically benefit the president. So once again, it is difficult to see how we might meaningfully challenge conflicts of interest affecting American health care without challenging the monstrously conflicted executive branch of our own government.
That will not be easy.
Discussion of Trump's conflicts of interesti the media, and several civil lawsuits targeting them have not discouraged the President from continuing to enrich himself from foreign, the US, and state governments.
It is not obvious how these presidential conflicts of interest could otherwise be reduced or eliminated. While the US House of Representatives has recently focused on possible impeachment of President Trump, unconstitutional conflicts of interest have not been a focus. A New York Times op-ed just noted his continuing conflicts of interest, but lamented
The Democratic-controlled House has done an especially poor job of calling attention to this corruption. It hasn’t even conducted good oversight hearings — a failure that, as Bob Bauer, an N.Y.U. law professor and former White House counsel, told me, 'is just astonishing.'It is possible that Trump will lose the next election. However, that would leave him, unconstitutionally conflicted, in office until 2021, if he does not attempt to ignore such electoral results, as he has threatened. He has already threatened to ignore election results he deems illegitimate (look here).
So it seems that we in the US are stuck with the continuing prevalence of conflicts of interest and corruption adding to health care dysfunction, unless health care professionals and the public band together to do something more direct to challenge them.