Richard Painter, a professor of law at the University of Minnesota, was the chief White House ethics lawyer from 2005 to 2007 and is vice chair of Citizens for Responsibility and Ethics in Washington. Norman Eisen, a visiting fellow at the Brookings Institution, was the chief White House ethics lawyer from 2009 to 2011 and is the chair of CREW.
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.
Priebus went on to make assertions about Shaub that were false. For example, he claimed Shaub was “political” because he “may have . . . publicly supported Hillary Clinton,” which is simply untrue. Shaub has done no such thing. (Before becoming director, Shaub made modest political donations, as did his Republican predecessor.Indeed, both of us have also exercised this same First Amendment right.)
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.