Ethics? Trump?

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Ethics? Trump?

Ethics? Trump?

Grub first: then ethics
— Bertolt Brecht, Three Penny Opera

It is a distinct pleasure to be the first columnist to disabuse a troubled American public of an easily understandable, but totally incorrect, belief in the meaning of a term that has entered the national conversation and caused consternation among political observers. The misunderstanding arises because of the use of the words “ethics,” and “Trump,” in the same sentence. That usage evokes, in the average citizen, a sense of disbelief that is difficult to set aside. Thus, it is not surprising that when there were headlines announcing the administration’s initial refusal to release dozens of “ethics waivers” for those serving in the administration, alarm bells were sounded by those who do not understand what is meant when an individual receives an “ethics waver.” The assumption made by those unfamiliar with the term, is that those who receive such waivers may, with impunity, act unethically whenever it suits them. That is, of course, not what such a waiver means, but the misunderstanding is understandable given the activities of the members of the Trump family since DJT assumed the throne. There are countless examples of DJT’s imperviousness to ethical matters and, citing the advice of his lawyers, he has consistently asserted that being president he can act unethically with complete impunity as well as immunity. Thus, as an example, DJT said that all profits received by his companies from foreign sources staying at his hotels, would be donated to charities so he would not profit from foreign governments patronizing his hotel. The Trump Organization has now said that for it to determine which guests’ payments would qualify as being from a foreign government would be impractical and violate the guests’ rights to privacy. As a result, DJT gets to keep the profits. With respect to DJT’s family, ethical questions are regularly posed by his daughter, Ivanka, and her husband, Jared Kushner, whose financial ties are of amazing complexity and pose all sorts of potential for conflicts of interest that, given their general insensitivity to such matters, are destined to remain in the news so long as they remain in the White House.

The important thing for readers to understand, is that an “ethical waiver” does not mean that those obtaining them are given license to behave in an unethical manner the way the Trump clan can. The use of the phrase must be understood in the context of the executive order that was signed by DJT on January 28, 2017, eight days after he assumed office. It was called “Ethics Commitments by Executive Branch Appointees.” It is an impressive document that contains more than 3100 words. The first three paragraphs address exactly the same thing three different ways, which proves how terribly important the obligations imposed by those three paragraphs are. The first and third paragraphs say anyone appointed to an executive agency agrees to a 5-year restriction on lobbying activities when that individual’s employment in that agency ends. The second paragraph says the employee agrees to do the things agreed to in the other two paragraphs, thus making it extra enforceable.  

With respect to those joining the administration, the appointee agrees that the appointee will not, for a period of 2 years from the date of the appointment, participate in any particular matter involving specific parties that is directly and substantially related to a former employer or former clients, including regulations and contracts.

As important as the foregoing provisions are, none is more significant than the provision found in section 3. That provision might be called the “Allie allie outs in free” section of the executive order. Its formal designation is much simpler. It is simply entitled “waiver” and says in part: “(a) The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.    (b)  A waiver shall take effect when the certification is signed by the President or his designee.” A legal opinion issued in 2010 says ethics waivers cannot be made retroactive. Since DJT wanted some of the waivers to be retroactive because of the activities of some of his appointees following their appointment, and since the waivers cannot be made retroactive, DJT came up with a clever way of circumventing the rule. The waivers that were given to senior White House staff are undated and the administration has refused to say when they were issued. Thus, the white House has unethically managed to bless the actions of those receiving the waivers even though the waivers were not in force when the proscribed conduct took place.

Those reading about the foregoing and learning from headlines that more than two dozen ethics waivers were going to be released could be forgiven if they assumed that an ethics waiver meant that its recipient could, with impunity, and following in the footsteps of DJT and his Trump children and other family members, behave unethically. That is not, obviously, what use of those two words mean. All they mean is that an appointee is free to contact those that he or she could not have contacted without the waiver. It does not mean that any unethical behavior arising out of those contacts is sanctioned. That is why it differs from rules applying to the Trump family. Sad but not surprising.

Christopher Brauchli

Christopher Brauchli

Christopher Brauchli is a columnist and lawyer known nationally for his work. He is a graduate of Harvard University and the University of Colorado School of Law where he served on the Board of Editors of the Rocky Mountain Law Review. He can be emailed at brauchli.56@post.harvard.edu. For political commentary see his web page at http://humanraceandothersports.com

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