The word “should,” it seems, could not overcome Whitaker’s personal desire not to recuse. What does “should” mean to a Trump appointee, anyway? From all outward appearances, absolutely nothing. But “should” is the foundation of government ethics in our democracy, and it should mean something.
When one of us (Shaub) was director of the Office of Government Ethics (OGE), Trump ignored advice that the president “should” comply with the government’s ethical norms and divest his conflicts of interest. (Shaub later resigned.) That advice was grounded in prior guidance all of us were informed by in our service as government ethicists, including input from another former OGE director, a former acting attorney general and none other than former Supreme Court Justice Antonin Scalia when he was a senior Justice Department official.
Following the president’s bad example, his appointees have made the Trump administration arguably the most scandal-plagued administration in modern history. We have watched in dismay as Trump nominees and appointees routinely demand to know whether any law or regulation clearly prohibits the things they want to do. They seem to view the word “should” as meaning only “not illegal.”
Even if an act is not strictly illegal, however, executive branch officials must avoid the appearance of unethical behavior. This is a standard our ethics watchdog organization pointed to when we wrote to the Justice Department to request Whitaker’s recusal, and it is one the department’s ethics official correctly applied in reaching the view that Whitaker should indeed recuse. At stake is the legitimacy of government. One of the 14 ethical principles of the executive branch directs that officials “shall endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards.” Former attorney general Alberto Gonzales also emphasized in a recent opinion piece that “Justice Department rules regarding recusal from a matter are intended to preserve the integrity of an investigation and to safeguard the reputation of the Justice Department from even the appearance of bias or prejudgment.”
OGE has similarly warned it is not enough for an official to comply with conflict of interest laws if the official has failed to address an “appearance of impropriety.” In a letter to the Senate Thursday, Assistant Attorney General Stephen Boyd — another Trump appointee — tried to preempt this argument by insisting that no attorney general has ever recused from a matter to avoid an appearance of impropriety created specifically by public statements. Boyd’s letter is disingenuous in its characterization of the ethics analysis, though. The analysis is not about specific public statements, but rather about the appearance of impropriety. (Of course, if the cause were relevant, Whitaker’s outrageous statements about the special counsel investigation would be an aggravating factor that would only heighten the need for recusal.)
Other attorneys general have addressed appearance concerns by recusing from matters. When Attorney General John Ashcroft recused from the Valerie Plame investigation, for example, Justice Department officials said the “issue that he was concerned about was one of appearance.” Likewise, former attorney general Eric Holder recused from an important leak investigation to avoid “any potential appearance of a conflict of interest” and, for the same reason, from an investigation of former presidential candidate John Edwards. In addition, former attorneys general Holder and Loretta E. Lynch both signed ethics agreements in which they committed prospectively to recuse from various matters under OGE’s government-wide appearance of impartiality regulation.
That OGE appearance regulation includes a provision authorizing an agency ethics official to make an “independent determination” that a “reasonable person with knowledge of the relevant facts would be likely to question” an official’s participation in a matter. While serving as government ethicists, we had occasion to explain that, in making this independent determination, an ethics official can rely on a related catchall provision for circumstances not explicitly enumerated in the regulation. Boyd acknowledges the relevance of this catchall provision in his letter to the Senate. What Boyd gets wrong is his statement that “the ultimate decision about whether or not to recuse from a matter in a case such as this rests with the Acting Attorney General.” In fact, after an ethics official has made a determination under OGE’s appearance regulation, recusal becomes mandatory, and should recuse becomes “shall not participate.”
Boyd’s letter reveals the Justice Department’s leadership short-circuited the career ethics officials’ independent determination. The letter recounts a distorted decision-making process that deprived ethics officials of their regulatorily mandated independence, as Whitaker essentially “forum-shopped” for a politically amenable opinion from more senior department officials. Attempting to defend this rigged process, Boyd invents a distinction between a determination by ethics officials and a nonexistent “formal” type of determination. The regulation makes no such distinction and does not provide for a “formal” determination. Boyd admits in his letter that the ethics officials “concluded” that “if a recommendation were sought, they would advise that the Acting Attorney General should recuse.” But that conclusion was itself their determination, and Boyd acknowledges they notified Whitaker of it. Whitaker’s refusal to abide by their determination and recuse from the special counsel investigation is a clear violation of the regulation.
Even if the Trump administration continues to maintain that the guidance from these ethics officials, who are lawyers, was insufficiently “formal” to trigger a recusal obligation, Whitaker is terribly wrong to ignore them. President Lyndon Johnson wrote “Where government is based on the consent of the governed, every citizen is entitled to have complete confidence in the integrity of his government.” To that end, the late President George H.W. Bush issued an executive order — which remains on the books today — directing executive branch officials to avoid even the “appearance” of violating ethical standards. Bush also explained to his White House staff that government ethics is “a question of knowing right from wrong, avoiding conflicts of interest, bending over backward to see that there’s not even a perception of a conflict of interest.” Near the end of his time in the White House, President Barack Obama emphasized the key to running a successful government ethics program was to “listen to the lawyers” and support a “strong ethics office.”
Remember the context for Whitaker’s refusal to follow ethics officials’ guidance: The president fired the director of the Federal Bureau of Investigation and the attorney general because they refused to stop an investigation of his campaign. He then installed an acting attorney general who, among other outrageous statements, called the investigators a “lynch mob” and publicly explained how an attorney general could undermine the investigation. That new acting attorney general has a political and personal relationship with a witness involved in the investigation. And the Justice Department’s ethics office has advised he should recuse based on his prior statements about the investigation.
Under these circumstances, it is clear the acting attorney general should recuse. Any reasonable person with knowledge of these relevant facts would agree.