Putting the news in context

I’m taking the liberty of quoting at length from an essay by Justin Florence on the Lawfare blog
(“On the Importance of Limiting White House-DOJ Contacts: It’s Not Just About Obstruction”).

Florence lays out why maintaining the wall between the White House and investigations conducted by the the Department of Justice is so important. It is based on a longer memo by a lawyers’ group, United to Protect Democracy, which traced the history of this important principle (“White House Communications With the DOJ and FBI”).

It’s an important issue, and the broader context is important to be aware of and keep in mind as daily events are unfolding.

First, a quite specific reason is that criminal laws prohibit interference in specific investigations. There has been much discussion lately of the contours of the federal obstruction of justice statute, 18 U.S.C. § 1505, a felony offense prohibiting certain “communication[s]” that “influence[], obstruct[], or impede[] or endeavor[] to influence, obstruct, or impede the due and proper administration of the law.” Contacts by the President or White House to the DOJ or FBI made with the intent to influence an investigation can not only give rise to criminal liability to the person who interferes, they can undermine the potential prosecution by allowing the defendant to raise claims of improper prosecution.

Second, restricting these contacts avoids the type of systemic corruption that is endemic in authoritarian governments. As Matt Yglesias described in a prescient essay earlier this year, when the political elite involve themselves in specific enforcement and regulatory actions, “Those who support the regime will receive favorable treatment from regulators, and those who oppose it will not.” As he notes, this type of interference can cut both ways. A call from a White House official to a federal prosecutor can ask that DOJ go easy on a friend of the administration who has worked for or donated to a campaign or who is a partner of the President’s business interests. Or, that same kind of call could suggest that it would be helpful to look into an enforcement action to brush back a journalist who has written a critical story of the President or a competitor to a business interest. As Yglesias writes, “This is how Vladimir Putin governs Russia, and how the Mubarak/Sisi regime rules Egypt.” It is not how America should function.

Third, limiting these contacts furthers several constitutional principles. The Constitution prohibits “bills of attainder,” and while that prohibition focuses on Congress, it stands for the more overarching point that specific people or groups should not be singled out for punishment. In addition, the Fifth Amendment’s Due Process Clause demands that our government follow standardized procedures before denying people of their liberty or property. The Equal Protection Clause requires that all people be treated equally under the laws. And finally, Article II’s command that the President “take care that the laws be faithfully executed” suggests a good faith requirement on the executive power. Each of these constitutional principles, in its own way, calls for the fair and impartial exercise of the Executive’s law enforcement authority. A White House that uses its enforcement power for political purposes—targeting specific individuals, ignoring standard law enforcement procedures, or treating similarly situated people unequally—fails to live up to these constitutional principles.

And this leads to the fourth and most fundamental point. The basic notion of the rule of law, and public confidence in the rule of law, requires its even-handed application. The DOJ and White House memos on contacts reference this concern. The DOJ memo currently in place begins, “The rule of law depends upon the evenhanded administration of Justice,” and continues that “in order to promote the rule of law” it is establishing guidelines to govern all communications between representatives of the Department, on the one hand, and representatives of the White House and Congress, on the other.” As we wrote when we asked the DOJ Inspector General to investigate whether the White House was violating these policies with respect to a specific enforcement matter, “The American people depend on the Department to enforce our federal laws equally as to all parties, regardless of those parties’ size, influence, or political connections.”

Trump seems to be a model for questionable ethics

As a candidate, Donald Trump pledged to “drain the swamp.” As president, what he’s done instead is to turn off all the lights so that no one can see who or what is inhabiting the swamp.

So it’s no surprise that Trump’s problems with ethics are much in the news.

The New York Times reports today on an “extraordinary” and “unprecedented” move to block the Office of Government Ethics’ request for information on the status of former lobbyists or lawyers hired by the administration. Ethics rules prohibit former lobbyists or lawyers from taking action affecting their former clients or even the policy issues they formerly dealt with until two years has passed, although the president can approve waivers. The director of the ethics office has requested copies of any waivers issued for lobbyists in the Trump administration, which has now stepped in and questioned their legal authority.

NY Times: “White House Moves to Block Ethics Inquiry Into Ex-Lobbyists on Payroll.”

Meanwhile, the Washington Post examines the potential conflicts posed by the business interests of Trump’s son-in-law (“Kushner keeps most of his real estate but offers few clues about potential White House conflicts“).

Meanwhile, from Reuters: “Senator asks ethics office to review Trump hotel payments.”

According to the Reuters story:

Reuters reported on April 26 that public pension funds in at least seven U.S. states periodically send millions of dollars to an investment fund that owns the upscale Trump SoHo Hotel and Condominium in New York City and pays a Trump company to run it, according to a Reuters review of public records.

“Trump may be profiting from the retirement plans of millions of our nation’s public servants,” Senator Patty Murray of Washington state wrote in a letter to Walter Shaub, the director of the Office of Government Ethics, citing the Reuters report.

The Office of Government Ethics is the U.S. agency that oversees conduct within the executive branch and supervises ethics officials to ensure they are preventing conflicts of interest and other violations.

“This looks like exactly the type of monetary flow prohibited by the Constitution,” said the senator.

And then there was this recent story from ThinkProgress: “Trump Jr.’s speech at a Dubai university raises ethics questions.”

Donald Trump Jr.’s paid commencement speech at American University earlier this week in Dubai is latest example of the Trump family potentially mixing business with politics.

But it’s not necessarily just whether or how much he was paid?—?the dollar amount isn’t known, but CBS News reported the university paid former President Bill Clinton $150,000 in 2002?—?it’s that Trump Jr.’s speech could be seen as a way for Dubai’s leaders to curry favor with the White House. CBS reports that Dubai “helped found and holds a continuing stake in the school.”

Ahead of his commencement speech, Trump, Jr. went to Dubai to also discuss real estate opportunities in the country with Emirati billionaire Hussain Sajwani.

These are dangerous times for those of us who have worked for ethics in government at all levels. The Trump administration’s disdain for ethics is sure to start trickling down, and embolden state and local officials who have chafed under restrictions imposed by ethics laws.

Celebration of Life planned for Oliver Lee

This word on the memorial event planned for Oliver Lee was circulated by his daughter, Vivien. It is scheduled for June 17.

As you may have seen in Wednesday’s Star-Advertiser obituary about Oliver, we are all gathering together for a Celebration of Life on Saturday, June 17, 4:00pm at the Church of the Crossroads in Honolulu. We welcome you to join us in remembering his unique life and the great times we shared. A reception will follow–we’ll raise a glass with cheer. Please no flowers, gifts, or monetary contributions–just come share memories and enjoy each other!

“Feel free to spread the word,” she added.

Proving the value of investigative reporting

It’s an amazing time for investigative reporting.

Sometime back, I commented here that President Trump has a lot to learn. In particular, I observed that barring certain reporters or publications from his press conferences wouldn’t do anything to block their ability to report on his administration.

And that’s certainly been proved to be the case with the reporting “war” between the Washington Post and the New York Times pushing all the large national news organizations to up their reporting games!

This past week was an amazing whirl of investigative revelations.

And we’re the ones who benefit!

And beyond the news, good commentary about the news. For example:

NY Times: “Washington Post, Breaking News, Is Also Breaking New Ground

CNN: “Journalism’s epic week: surprises, scoops and a newspaper war

WWD.com: “The Washington Post’s Marty Baron on the Importance of Investigative Journalism

Aljazeera: “The increasing importance of investigative journalism

Anyway, it’s Saturday. Have fun out there.