THE PRESIDENCY AS A FIDUCIARY RELATIONSHIP

Ivan Hoffman, B.A., J.D.

          All this discussion about obstruction of justice, collusion with the Russians, is the President acting in the interests of the Russians, a luxury building in Moscow, did the President have bone spurs and so on gets us lost “in the weeds” as it were.  (read the numerous articles on my site under “Ivan Hoffman: A Matter of Law”)  Guilt or innocence, civil liability, lying or not, in many instances often turn on the fine points of legal definitions, motions to suppress etc. etc.  I suggest that we need a view with a much wider lens.  In this view, suspicions are enough.  Uncertainties are enough.  Doubts are enough. 

Fiduciaries 

          A person with a fiduciary duty is someone who is charged with the responsibility to protect the interests of another, the beneficiary.  A fiduciary is thus obligated by law to never take advantage of the beneficiary even at the fiduciary’s own cost, expense or peril.  The fiduciary must act solely and exclusively for the benefit of the beneficiary.  A fiduciary must act with complete candor and openness as to the beneficiary, without lying or hiding material information from the beneficiary. This is especially important because in almost every instance, the beneficiary lacks access to the information known to the fiduciary and is thus relying on the fiduciary.  The fiduciary may have such knowledge because of training, experience or other factors.  A fiduciary must never act in any situation in which he or she has a conflict of interest, meaning any situation in which the fiduciary can gain at the expense of the beneficiary.  Overall, the law imposes a fiduciary relationship wherever one party (the beneficiary) relies upon another (the fiduciary) where the fiduciary is in a position to exert dominance and influence over the beneficiary and where the fiduciary is in a position to control the well-being of the beneficiary.  Some examples of fiduciary relationships are attorneys to their clients, guardians to their wards, priests to their parishioners, doctors to their patients and some investment advisors to their clients.   

          Inherent in the fiduciary-beneficiary relationship is that the beneficiary must have, and by law is entitled to have, total and complete trust in the fiduciary.  The relationship is, by definition, decidedly in the favor of the fiduciary and thus the need for the beneficiary to be able to have confidence and trust in the actions of the fiduciary.  If the beneficiary loses that trust and confidence, if the beneficiary has even the sense that the fiduciary is acting not in the beneficiary’s interests but in the interests of the fiduciary, the relationship cannot function as intended. 

          By the express language of the Constitution in Article II, Section 1, Clause 1 (in part): 

1: The executive Power shall be vested in a President of the United States of America. 

          A chief executive officer is generally the president of the organization.  The president (and other officers) of the organization have fiduciary obligations to act in the best interests of the organization and its shareholders or other owners. 

          Additionally, that same Article II, section 1, clause 8 states: 

8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

          The people of the United States elect a President in whom they are entitled to trust and be confident will be someone who will act in their behalf and best interests especially since the province of government in general and the presidency in particular is beyond the legal capacity of ordinary citizens to affect other than through their votes.  The government keeps lots of information from the citizens, ostensibly for national security or other reasons, reasons both announced and secreted.  So citizens have no access to information or ability to act, thus creating a dependency upon the government in general and the presidency in particular to act on their behalf. 

          Those factors it seems to me meet the classic definition of a fiduciary relationship. It seems a very cogent claim can be made that the office of President of the United States is a fiduciary office and the beneficiary is the entirety of the United States and each of its citizens.  While this may be a legally uncertain position, not one subject to lawsuits if for no other reason than lack of standing on the part of ordinary citizens (for a discussion of “standing,” read “The Emoluments Clauses”), I believe that the underlying principles of fiduciary relationships exist.  And as indicated in the opening, the way to look at this situation is not through the fine points of the law but from a place where trust and confidence are the determining factors. 

          When a beneficiary has reason to believe that the fiduciary is acting inappropriately with regard to the fiduciary’s obligations, it appears that prudence on the part of the beneficiary requires the beneficiary to consider whether to change the fiduciary so that the beneficiary can feel confidence and secure in the new fiduciary’s loyalties.  Often the beneficiary has “suspicions” that may not rise to the level of legally established misdeeds on the part of the fiduciary but which, nonetheless cause the beneficiary to be concerned.   Feelings are not always or ever subject to rational approaches.  Where trust is concerned, feelings may however be valid.  In the instance of the presidency, doesn’t the mere existence of even suspicions, however rational or irrational, much less facts, raise these concerns and mandate voting for a new fiduciary?   

          If you had a fiduciary such as a doctor or an attorney or investment advisor and doubts arose about that fiduciary, doesn’t prudence strongly indicate that you look for another fiduciary or, in the instance of a President, vote for a new one?   

          And if you had a fiduciary such as a doctor or an attorney or investment advisor and doubts arose about that fiduciary and you did not find a new fiduciary or, in the instance of a President, did not vote for a new one…how would you sleep at night? 

          In a fiduciary relationship, one based on the need for complete trust, the insecurity of not knowing is the same as knowing.  In this view, suspicions are enough.  Uncertainties are enough.  Doubts are enough.  

Copyright 2019 Ivan Hoffman.  All Rights Reserved. 

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Ivan Hoffman has been practicing intellectual property law for over 46 years and has written extensively about the topic. (www.ivanhoffman.com).   

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States laws but the laws of other countries may be different.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.  

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No portion of this article may be copied, retransmitted, reposted, duplicated or otherwise used without the express written approval of the author.


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