How the use-of-name law would translate to Trump Organization activities isn’t precisely clear. It could mean merely that the company can't invoke "Trump" in its own title if he becomes president. But it might also mean that it can't “use” the Trump name by licensing it to any other entity, which would mean that everything from Trump golf courses to Trump hotels couldn't bear his moniker. That would be the more accurate interpretation, says Kathleen Clark, a professor at Washington University Law in St. Louis, Missouri. Congress’s “endorsement of a broad reading of the statute” was “intended to prevent … outsiders from ingratiating themselves with government officials by providing excessive outside compensation,” she told me. And that would apply to any business licensing Trump’s name.

Trump could honor the name law by doing what every president since the 1970s has done voluntarily: sell off his assets, in particular his interests in his brand, and replace them with holdings in a blind trust, the contents of which would remain unknown to him; or he could replace them with Treasury bills and index funds whose value he couldn’t affect in any direct way, as President Obama has done.

Trump, for his part, has shown no indication he plans to sell off his assets, and his camp has resisted, in particular, suggestions that he set up a blind trust. Trump’s solution is to have his children run the company. Yet it would appear that a sell-off is the only way he could adhere to the use-of-name statute as Congress understood it: as an instrument for preventing an officer, including the president, from being in a position where others could advance his or her financial interests in return for favorable policy decisions.

And Congress always intended for the name ban to apply to the president. In 1989, there was concern that outgoing President Ronald Reagan might have been vulnerable to an investigation because of a spate of conflict-of-interest controversies involving his aides. That’s when Congress amended the conflict-of-interest statutes to say that their use of the term “officer” would no longer include the president or vice president. Prior to that, even the 1974 Justice Department letter clearing the way for Rockefeller never tried to argue that the vice president isn’t a government officer. And so it’s crucial that in the very same 1989 bill in which it explicitly excluded the president and vice president in the conflict-of-interest statutes, Congress pointedly did not do so with the name ban.

If he refused to divest himself from his own business, Trump would seem to be vulnerable under the name law regardless of how ethically he were to behave as president. The prohibition would seem to stand whether or not he chose to brazenly advance his business interests while in office. Yet there is one thing standing in the way of him being prosecuted: In 1991, the Office of Government Ethics wrote a regulation exempting the president and vice president from the category of “officer” for purposes of the name ban, even though Congress said no such thing in the actual statute. But while this regulation exempting the president would—as long as it exists—be as binding on the courts as any statute, its status as far as the other two branches are concerned is not that of statutory law. The Office of Government Ethics could repeal it at any time.