Richard Painter, a professor at the University of Minnesota Law School who was the chief White House ethics lawyer from 2005 to 2007, and Norman Eisen, a visiting fellow at the Brookings Institution who was the chief White House ethics lawyer from 2009 to 2011, and is the chair of CREW, have previously explained that Donald Trump Could Be in Violation of the Constitution His First Day in Office because he refuses to divest himself from his multiple business interests around the world.
The Framers could not have been clearer: the president’s claim that something was not a gift, but was earned through his business or other effort still does not allow him to accept it. It would blow a giant loophole in the clause in terms of the Framer’s intent—preventing foreign sovereigns from corrupting American officials—to forbid presents but allow other things of potentially much greater value on the pretext (or actuality) that they were earned. Moreover, the Framers did not limit “emoluments” to cash or any other particular kind of thing of value.
Walter Shaub, Jr., the director of the Office of Government Ethics, recently came to the same conclusion. Remarks of Office of Government Ethics Director Walter M. Shaub Jr.:
I need to talk about ethics today because the plan the president-elect has announced doesn’t meet the standards that the best of his nominees are meeting and that every president in the past four decades has met.
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We can’t risk creating the perception that government leaders would use their official positions for profit. That’s why I was glad in November when the president-elect tweeted that he wanted to, as he put it, “in no way have a conflict of interest” with his businesses. Unfortunately, his current plan cannot achieve that goal.
The Tea-Publican Party response was what one would expect from a political party whose credo is IOKIYAR: “Kill the messenger!”
Painter and Norman Eisen follow-up at the Washington Post, Just when you thought the Trump ethics disaster couldn’t get worse, it did:
For two weeks now, the majority leadership in the new Congress and the incoming Trump administration have been conducting a war on ethics. This has ranged from the effort to cripple the Office of Congressional Ethics to the Senate’s rush to confirm President-elect Donald Trump’s nominees before their financial conflicts disclosures were complete to Trump’s own inadequate plan to address his ethical problems.
The latest front involves the Office of Government Ethics and its director, Walter Shaub Jr., who has had the temerity to speak up against Trump’s plan to deal with his conflicts of interest as “meaningless.”
Both of us, former ethics counsels for Presidents George W. Bush and Barack Obama, respectively, have worked with Shaub, a career public servant who, in our experience, provided nonpartisan and wise advice. Now, Shaub is being pilloried — and may be at risk of losing his job — for doing just that, and asserting correctly that Trump’s approach “doesn’t meet the standards . . . that every president in the last four decades has met.”
How does the Trump plan fall short? The president-elect asserted that the conflicts laws don’t apply to him but ignored the most fundamental one of all: the constitutional rule that presidents may not accept cash and other benefits — “emoluments” — from foreign governments.
Trump’s lawyer then offered a porous and insufficient plan to address this problem: The Trump Organization will donate profits from foreign governments’ use of his hotels. But why only hotels? What about foreign sovereign payments to buy his condos or apartments, for use of his office buildings or his golf courses, not to mention his massive foreign government bank loans, and other benefits? And why only profits, when the Justice Department has long held that the emoluments clause covers any revenue from foreign governments — not simply profits?
For speaking up about the shortcomings of this plan, Shaub found himself in the Republican crosshairs. Rep. Jason Chaffetz (Utah), chair of the House Oversight and Government Reform Committee that has jurisdiction over the White House, demanded Shaub appear for a Star Chamber-style recorded inquisition and implicitly threatened to shut down the Office of Government Ethics if Shaub did not submit. Chaffetz ought to have been doing the exact opposite, supporting OGE and demanding documents from Trump about any financial ties to Russia or other foreign governments.
Then, just when we thought it couldn’t get worse, it did. The incoming White House chief of staff, Reince Priebus, went on national television to threaten Shaub. In a scene like something out of a gangster B-movie, Priebus warned the director that “he ought to be careful” and gave his blessing to Chaffetz’s interrogation. Priebus’s glare of menace was unmistakable. The only thing he left out was cracking his knuckles.
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Priebus also attacked Shaub’s competence, and so his livelihood, questioning “what this person at Government Ethics, what sort of standing he has any more in giving these opinions”. In fact, the director is a dedicated and talented ethicist who has served Democratic and Republican presidents alike with distinction and without controversy for many years. He has already approved 54 percent of the Trump nominees who have submitted their paperwork to OGE, compared with just 29 percent at this point in the Obama transition eight years ago. If the White House chief of staff had made these kinds of threats against the head of OGE when we were serving in the White House, we would have resigned immediately.
We think apologies are due Shaub. In addition, we recommend that Republicans back off of their threats. How about Chaffetz instead publicly affirm the need for the agency and invite Shaub to have a public conversation about that and about Trump’s conflicts with both the majority and minority members of the committee? We are sure that Shaub would accept such an offer and explain to the committee and the public why his concerns about the president-elect’s plan are well founded.
Finally, and most important, Chaffetz should agree to take a hard look at that plan, including asking Trump for documents about it. That would be the best step of all in pivoting to fight for ethics, instead of against them.
The editors of the Washington Post also editorialize today, Republicans are waging an ethics war — but it’s the wrong one:
The law gives Mr. Shaub wide authority to help police executive branch “employees” and “officers.” But it exempts the president and vice president from key conflict-of-interest requirements. In a speech at the Brookings Institution last Wednesday, Mr. Shaub acknowledged this exemption. He nevertheless noted that the modern expectation is that “the president should act as though the financial conflict-of-interest law applied,” noting that “the signals a president sends set the tone for ethics across the executive branch.”
Mr. Shaub made some good points, but it’s not clear it was wise for him to do so. He is not the director of a nonprofit government watchdog; he is a federal officer operating under the color of law, empowered to help enforce specific statutes. In his comments he was operating outside his lane.
If Mr. Shaub’s freelancing was unsettling, however, the GOP’s overreaction was downright chilling. Incoming White House chief of staff Reince Priebus warned Mr. Shaub “to be careful.” House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) sent a letter to Mr. Shaub summoning him to a deposition-style grilling, noting that the oversight committee is responsible for authorizing the OGE in law.
As Congress’s chief watchdog, with an open-ended charge to review all sorts of executive branch activity, Mr. Chaffetz should be raising questions about Mr. Trump’s ethics plan. Before November’s election, he promised “years” of investigations of Hillary Clinton, if she won. His tune changed after Mr. Trump’s victory; he said Sunday he has no interest in a “fishing expedition” to assess Mr. Trump’s business entanglements. Yet he will use valuable committee resources assailing a federal ethics officer for what amounts to modestly concerning behavior.
Some observers worry that Mr. Chaffetz might even defund or otherwise curb the OGE, which, whatever the merits of Mr. Shaub’s comments, performs valuable work. Just as it has for every other recent presidential administration, the office has helped a variety of Trump nominees unwind their financial conflicts, aiding them so they can be confident they will not enter office under an ethical cloud. Mr. Chaffetz is already prioritizing partisanship over responsibility. Undercutting the executive branch’s ethics office would represent a larger failing.
Under this Tea-Publican Congress, apparently Mr. Trump is to be granted license to ignore the Constitution as he deems fit, because IOKIYAR. God save the Republic.