Tuesday, July 18, 2017

Walter Shaub: How to Restore Government Ethics in the Trump Era

Shortly after his inauguration, President George H. W. Bush counseled freshly minted White House appointees that, “It’s not really very complicated. It’s a question of knowing right from wrong, avoiding conflicts of interest, bending over backwards to see that there’s not even a perception of conflict of interest.” He paired this straightforward declaration with action, establishing unified standards of conduct for the executive branch and resolving his own conflicts of interest. These words and deeds set the tone for ethical governance.

Since the enactment of the Ethics in Government Act, our past presidents entered government with an appreciation for the importance of tone from the top. Though exempt from the conflict of interest statute, which bars other officials from working on matters affecting their financial interests, they all voluntarily divested conflicting holdings and put the proceeds in blind trusts or nonconflicting assets. 

They knew their exemption from the statute was not a reward for attaining high office but a pragmatic recognition that America needs its president engaged in urgent matters of state. By holding themselves to the same exacting standards as the rest of the executive branch, they sent a clear message to those serving under them.

This tradition came to an abrupt stop with President Trump. By continuing to hold onto his businesses and effectively advertising them through frequent visits to his properties, our leader creates the appearance of profiting from the presidency. As things stand, we can’t know whether policy aims or personal financial interests motivate his decisions as president. Whatever his intentions may be, the resulting uncertainty casts a pall of doubt over governmental decision-making.

I am not suggesting that it was always easy. Having served for much of my career on the front lines of the presidential nominee program, I regularly locked horns with nominees and White House lawyers in both the Bush and Obama administrations as we wrestled over our differing notions of how best to address ethical risks. Sometimes those deliberations were animated; occasionally they were heated. I am also sure that more than a few nominees felt bruised by the painful process of resolving their conflicts of interest. Even if we did not always agree, however, White House officials always understood that O.G.E.’s only goal — and, indeed, my only goal — was to protect the integrity of the government’s operations. The incidental beneficiaries of those efforts were the Bush and Obama administrations and the nominees we kept out of trouble. That’s why it is disheartening now to witness parts of the ethics program slipping away.

The Office of Government Ethics has been performing the same service it has always provided with respect to the current administration’s nominees. In fact, I have succeeded in moving President Trump’s nominees on average almost a week (six days to be exact) faster than I moved President Obama’s nominees during the last presidential transition, without compromising O.G.E.’s high standards. I am particularly proud of this accomplishment because this administration’s nominees generally hold far more complex financial interests than the last administration’s nominees, a circumstance that would normally be expected to slow O.G.E.’s work. Unfortunately, it has been harder to address other aspects of the lagging ethical culture in the current administration.

The cascading effects of the president’s departure from existing ethical norms have touched others in government. The tone from the top led one White House appointee to use her position to hawk the merchandise of the president’s daughter and another to endorse the president’s book. It led a cabinet official, whose recent wedding reportedly featured a chartered bus ride from the president’s hotel, to urge the public to see a movie he produced. The press secretary touts one of the president’s commercial enterprises as the “winter White House,” and the State Department has publicized it around the globe. A White House lawyer made the extraordinary assertion that “many regulations promulgated by the Office of Government Ethics (‘OGE’) do not apply to employees of the Executive Office of the President.” Appearing to echo this view, the Office of Management and Budget challenged O.G.E.’s authority to collect routine ethics records. Even some presidential nominees have pushed back against ethics processes with uncommon intensity.

Affected, too, is the very official charged with responsibility for White House ethics, the counsel to the president. His office recently ginned up ten unsigned, undated waivers, many of which seem intended to have retroactive effect, raising the specter of a possible effort to paper over ethics violations. Worse, the counsel appears to be both issuer and recipient of two waivers. His deputy also beat back a press inquiry regarding the applicability of ethics rules to one of the deputy’s former clients. In addition, his office has dragged its feet on responding to O.G.E.’s questions about appointees, despite the office’s statutory duty to review their disclosures and certify their ethical compliance.

Projecting their own cynical partisanship, some defenders of this conduct dismiss any expressions of concern — or, in my case, resignation — as politically motivated.Underlying my own expressions of concern, however, is fidelity to the principle that public service is a public trust. I would not have gone looking for this particular fight; it found me. I can assure those reciting the administration’s talking points that I have not enjoyed the attention, nor have I enjoyed watching the negative effects on the ethics program. As I told the Senate during my confirmation hearing in 2012, I am a true believer in the foundational principles of the executive branch ethics program. I am also acutely aware that the program owes a debt to both parties for its past successes and that it will take both parties to restore the program to good health. To advocate for the executive branch ethics program is to advance the nonpartisan mission of an essential institution of our representative form of government.

Defenders of the status quo also seem unwilling to acknowledge the existence of a problem absent clear evidence of significant violations. This argument risks legitimizing an approach of bare minimum legal compliance. The existence or absence of identified violations is not the only measure of an ethics program — no program can detect every violation and those detected are often hard to prove. At its heart, an ethics program acts as a prevention mechanism through systems designed to reduce the risk of violations occurring. Those systems depend on adherence to ethical norms.

Recent experiences have convinced me that the existing mechanism is insufficient. The Office of Government Ethics needs greater authority to obtain information from the executive branch, including the White House. The White House and agencies lacking inspectors general need investigative oversight, which should be coordinated with O.G.E. The ethics office needs more independence, including authority to communicate directly with Congress on budgetary and legislative matters. Because we can no longer rely on presidents to comply voluntarily with ethical norms, we need new laws to address their conflicts of interest, their receipt of compensation for the use of their names while in office, nepotism and the release of tax forms. Transparency should be increased through laws mandating creation and release of documents related to divestitures, recusals, waivers and training. Disclosure requirements can be refined and the revolving door tightened. These changes would give O.G.E. the tools it needs to address the current challenges and, perhaps more importantly, reinforce for presidents the importance of setting a strong ethical tone from the top.


NYT

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