Richard Painter, Guest-Blogging:
I'm delighted to report that Prof. Richard Painter, of the University of Minnesota law school, will be guest-blogging this coming week. Prof. Painter is the author of dozens of law review articles on lawyers' ethics, corporate governance and corporate ethics, and securities law, and coauthor of the casebooks Securities Litigation and Enforcement (2d ed. 2007) and Professional and Personal Responsibilities of the Lawyer (2d ed. 2001). He has been active in law reform efforts, including the 2002 Sarbanes-Oxley Act provision requiring lawyers to report known securities law violations up the ladder to senior management and, if necessary, to client boards of directors.
He's also the author of the new Oxford University Press book Getting the Government America Deserves: How Ethics Reform Can Make a Difference. Here's a quick summary:
Federal ethics law is relatively unknown in legal academia and elsewhere outside of Washington, D.C., but it is binding on over one million federal employees. Lobbyists, federal contractors, lawyers and others who interact with the federal government are also deeply interested in federal ethics law and represent a surprisingly large market for a little-studied area of the law. The book argues that in order to be effective, federal ethics law must address sources of systematic corruption rather than simply address motives that individual government employees might have to betray the public trust (such as personal financial holdings or family relationships). The book articulates a general approach to combating systemic corruption as well as some specific proposals for doing so.
The book argues that the existing ethics regime is in need of substantial reform since federal ethics laws fail to curtail conduct that undermines the integrity of government, such as political activity by federal employees and their interaction with lobbyists and interest groups. The book also contends that in some other areas, such as personal financial conflicts of interest, there is too much complexity in regulatory and reporting requirements, and rules need to be simplified. Painter's solution includes strengthening the enforcement of ethics rules, reforming the lobbying industry, and changing a system of campaign finance that impedes meaningful government ethics reform.
I'm much looking forward to Prof. Painter's posts.
Reforming The White House Office of Political Affairs
My first post concerns appropriate boundaries of political activity by the White House staff and by senior political appointees in the Administration. Political campaigning by Administration officials is ostensibly conducted in a "personal capacity" without use of official title because such is what the Hatch Act requires. For all practical purposes, however, this activity is conducted on behalf of the President, and often because it was specifically requested by the White House Office of Political Affairs (OPA). This political activity creates conflicts of interest for government officials and gives campaign contributors an unwarranted access to key decision makers. I have proposed in my book (Chapter 10) that such political activity by senior Executive Branch officials be sharply curtailed.
Apparently, however, the President is sticking with the status quo. He has decided to retain the White House OPA. OPA was for much of the George W. Bush Administration run by Karl Rove. Under President Obama, OPA has been taken over by Patrick Gaspard, a union advisor from New York. This is the Office that has in the past encouraged political appointees across the Executive Branch to moonlight for the President's political party by, for example, speaking at campaign fundraisers or at political events in a congressional candidate's district.
The first problem with this political work is its legality. The Hatch Act prohibits government officials from engaging in political activity using official titles or at government expense. Most government officials may not participate in political activity while on government property or during working hours. An exception in the Hatch Act regulations, however, allows senior political appointees to do so provided they do not use their official titles or incur additional expense for the government.
This exception permits some people to do both official and political work in the same office, provided they purport to distinguish between the two. Numerous gadgets--BlackBerries, cell phones, computers — are thus provided by the DNC or RNC (depending upon which party controls the White House) to OPA staff and some other Administration officials. Calls coming from White House officials on DNC cell phones and emails sent on DNC BlackBerries are, legally, not coming from the White House at all. They are merely "personal capacity" communications by persons who happen to be White House staff.
These distinctions are more theoretical than real. When OPA staff members make phone calls or send email, everyone knows where they work. When they speak at campaign events, everyone knows who they are. The same is true when other White House staff members and political appointees from the agencies are recruited by OPA to work for political campaigns. Calling this partisan political activity "personal" rather than "official" is a legal fiction.
The second problem is conflict of commitment. There is no way of knowing how much time is spent on politics instead of official duties because time records for senior political employees are not required. Presumably, records of reimbursements they receive from campaigns for travel expenses are filed with the FEC, but this information is difficult for the public to obtain. Little is known, for example, about how many trips are taken by OPA staff and who pays for them.
The third and most serious problem is conflict of interest. Many contacts made in partisan politics are with fundraisers and donors. The Hatch Act allows government employees to speak at fundraisers provided they do not explicitly ask for money (another legal distinction with little grounding in reality). White House staff and other Administration officials are highly sought-after speakers because they fill the room with people who pay.
These people usually want something in return. Lobbyists are among the most frequent attendees (some fundraisers are hosted by lobbyists). Corporations and other organizations that want a share of government economic stimulus money or a government bailout package know they had better attend fundraisers. Government officials learn at these events what contributors want. The contributors also expect to get what they want and sometimes do.
Concurrent political and official roles thus put government officials in an untenable position. Critics often blame OPA staff members for the resulting problems and claim things would be better if another political party controlled the White House. These problems, however, are inevitable.
Retaining the White House OPA can work for the Obama Administration, but ethical quagmire will be inevitable unless the role of OPA changes. OPA should stick to providing the President with official capacity advice about the political strengths and weaknesses of the President's policy proposals. OPA Staff, along with other White House staff should not personally participate in partisan politics. Hatch Act regulations already bar some Administration officials, for example those in national security related work, from most political activity. Similar restrictions should apply to political appointees in all or most other parts of the Administration -- particularly anyone involved in handing out economic stimulus or corporate bailout money that will cost taxpayers trillions of dollars. The Administration should be served by officials with undivided loyalties to the government and the Country it serves.
Responses to (Some) Comments:
Here are my responses to some of the comments made thus far. If you believe I have not answered your question in the next 24 hours, please post it again or email me at email@example.com.
First Amendment concerns with my proposal would be relevant for career government employees and indeed Hatch Act rules have been drafted to address concerns that courts have about excessively strict rules for career employees. I do not, however, intend my proposal to apply to career government employees or even to more junior (Schedule C) political appointees.
Political appointees, unlike career employees, serve at the pleasure of the President. If their conduct and speech, whether official capacity or personal capacity, displeases the President or the President's senior staff, political appointees are likely to be fired (try for example engaging in Democratic party political activity while working as a political appointee for a Republican administration, or vice versa, and see what happens!).
The best way to implement the change I am suggesting would be for the President to voluntarily impose it. I circulated this proposal privately before the election and, for whatever reason, Senator McCain specifically said that if elected he would close down the Office of Political Affairs and send this work over to RNC where it belonged. The issue did not, however, get enough attention in the election and Senator Obama did not match this campaign promise of Senator McCain or even respond to it. I do not doubt, however, that President Obama could constitutionally require that his political appointees refrain from partisan political activity to the extent the President believes appropriate.
For Congress to impose such a rule would raise some free speech issues, although the Hatch Act restrictions on most political activity by national security and intelligence officials have thus far remained intact. If these rules are constitutional, I do not see how the constitutional analysis would be different for Treasury officials and others who hand out bailout and stimulus funds, or for any other officials whose government function could be easily corrupted by constant access to political operatives and campaign contributors.
Furthermore, at a minimum Congress should amend the Hatch Act to change the current rule which is more permissive for senior political appointees than for other government employees. The former can engage in political activity during normal working hours and on government property (including the White House). The latter cannot do so. If anything, it should be the other way around. At a minimum, the rule should be the same for everybody.
Finally, I am not concerned about government officials knocking on doors or standing on street corners handing out leaflets, or going to campaign rallies. The problem is that this is not what they do. My concern is fundraisers and similar events where senior Administration officials speak in their "personal capacity" about official business. The people who pay to attend these events get preferential access to Executive Branch officials to discuss official business.
Another consideration is how easy it should be for political operatives outside the government to get access to officials inside the government. There will undoubtedly be some contact, but how much is appropriate? One hypothetical in my book involves a state political party operative complaining at a purely political event to an OPA staff member that the local United States Attorney's office is not diligent about prosecuting election fraud (read between the lines that what really worries the political party operative, a Democrat, is that not enough Republicans are being prosecuted for election fraud). If the allegation is true, the lax enforcement of election fraud laws is a matter of official business and official concern, but fact is that in my hypothetical the communication is made in a "personal capacity" political context. What then if the OPA official acts on this complaint in an official capacity or involves the Justice Department in taking official action? Assuming legal means are used to take official action on the matter, the Administration is within its rights and responsibilities in addressing the problem of election fraud. Nonetheless, the manner in which the matter originated -- in a "personal capacity" political communication -- would raise substantial questions of impropriety, even if there were in fact no impropriety. Perhaps this type of thing has never happened and would not happen in the future; but perhaps it could happen and a realist might even speculate that under current practice it is indeed likely to happen. Reduced political activity by White House staff and senior political appointees would make such a scenario less likely and would make public acceptance of official action more likely.
Finally, nowhere do I suggest that political considerations be removed from official decisions. I also do not propose to go so far as to prohibit contact between White House officials and political party operatives, who should be treated like any other outside group such as labor unions, the chamber of commerce, etc., and these groups frequently get access to the White House. I do suggest that White House officials and other senior political appointees should not be working for these outside political operatives -- mostly at fundraisers -- in their "spare time" while pretending that they are not doing so on behalf of the White House or the Administration.
As with many other problems in ethics, whether for government employees or private practice lawyers, these problems come up because somebody tries to wear two hats at the same time. Sometimes we have to regulate such conflicts of interest, but sometimes the best response is for the boss or the client -- here the President -- to simply say no.
Defining Political Activity:
There is no intent in my proposal to remove politics from the White House or from the Executive Branch. Good policy decisions must be politically informed decisions, or the policy will go nowhere (e.g. 1993 Clinton health plan). The President needs good political advisors. The question I present is whether these advisors and other political appointees ought to work only for the President as chief executive of the United States or also for the President as head of a political party. Should they wear one hat or two?
The point about the email of Karl Rove and others is precisely the type of thing I am talking about. Wear two hats and have two email accounts, two Blackberries, two cell phones, two fax machines, two sets of lawyers etc. means you will have many problems. It does not matter how hard you try to keep the official and the political party work separate, One will always spill over into the other. Put away the political party gadgets and stick to official work, and life will be easier. The political party will be an outside constituency, and an important one, but you will not work for the political party as well as for the government.
Defining appropriate and inappropriate political activity is not an easy task, but for purposes of this discussion we should look at some of the lines the law has already drawn. Nowhere, it should be noted, does the law seek to require that policy decisions in any agency -- even agencies subject to the strictest Hatch Act regulations — be devoid of intent to please political supporters of the President or his political party. It is the day-to-day interaction between federal employees and political parties and political candidates that is subject to regulation.
For purposes of the Hatch Act rules, federal employees are divided into two categories, those subject to the general rules and those who are subject to stricter rules or who are "Hatched." An important subset of the first category is employees of the Executive Office of the President and holders of Presidential appointed Senate confirmed positions in the agencies. This subset of the first category is permitted to engage in partisan political activity in government buildings and during normal working hours as well as after hours.
The First category is subject to the following rules that apply to most federal employees:
These employees may-
• be candidates for public office in nonpartisan elections
• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• contribute money to political organizations
• attend political fundraising functions
• attend and be active at political rallies and meetings
• join and be an active member of a political party or club
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances
• campaign for or against candidates in partisan elections
• make campaign speeches for candidates in partisan elections
• distribute campaign literature in partisan elections
• hold office in political clubs or parties
These employees may not-
• use official authority or influence to interfere with an election
• solicit or discourage political activity of anyone with business before their agency
• solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
• be candidates for public office in partisan elections
• engage in political activity while:
o on duty
o in a government office
o wearing an official uniform
o using a government vehicle
• wear partisan political buttons on duty
Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies:
Administrative Law Judges (positions described at 5 U.S.C. ?5372)
Central Imagery Office
Central Intelligence Agency
Contract Appeals Boards (positions described at 5 U.S.C. ?5372a)
Criminal Division (Department of Justice)
Defense Intelligence Agency
Federal Bureau of Investigation
Federal Elections Commission
Merit Systems Protection Board
National Security Agency
National Security Council
Office of Criminal Investigation (Internal Revenue Service)
Office of Investigative Programs (Customs Service)
Office of Law Enforcement (Bureau of Alcohol, Tobacco and Firearms)
Office of Special Counsel
These employees may-
• register and vote as they choose
• assist in voter registration drives
• express opinions about candidates and issues
• participate in campaigns where none of the candidates represent a political party
• contribute money to political organizations or attend political fund raising functions
• attend political rallies and meetings
• join political clubs or parties
• sign nominating petitions
• campaign for or against referendum questions, constitutional amendments, municipal ordinances
These employees may not-
• be candidates for public office in partisan elections
• campaign for or against a candidate or slate of candidates in partisan elections
• make campaign speeches
• collect contributions or sell tickets to political fund raising functions
• distribute campaign material in partisan elections
• organize or manage political rallies or meetings
• hold office in political clubs or parties
• circulate nominating petitions
• work to register voters for one party only
• wear political buttons at work
This information is available at the Office of Special Counsel Web Site
Privatize the White House?
A number of you have suggested going in the opposite direction than I propose and have all White House employees be privately paid operatives of the President's political party, in essence to privatize the White House.
Some would say we are already there, with the exception that the government pays the salaries, including salaries for time people spend on partisan political work during normal working hours.
There is no escaping the fact that there is an enormous amount of private influence on our government. That is fine, as we have a First Amendment right to petition our government. The problem of course is that a very few people who pay for that right, with campaign contributions, contributions to other organizations that support political candidates, or lobbyists, get a lot more access than the rest of us. A few get into the Oval Office and for the rest, well . . . there is Lafayette Park.
My proposal is to shift White House employees other than the President and Vice President, and to shift senior political appointees in some other agencies, into the more restrictive Hatch Act rules that now apply to some specific agencies in intelligence and other fields. For those who do not agree with this approach, an alternative would be at least not to have White House employees in their "personal capacity" recruit other Administration officials for political work, in effect setting up an entire unofficial reporting structure that parallels the official. Partisan political activity in such an environment is hardly "personal" rather than official, and is in some respects not even voluntary.
We should also require that time records be kept and political activity be fully disclosed (see page 253 of my book). This should include political travel paid for by candidates and political parties. Presently, despite the detailed FEC reporting regime imposed on campaigns, it is very difficult for the public to find from the FEC much information about where any particular official (for example Rahm Emanuel or Karl Rove) traveled on a political party's or candidate's dime, how many trips there were and how much they cost (see page 259 of my book). Everyone, however, can find out if their neighbor gave over $200 to a federal candidate, to whom, when it was given and exactly how much. Something is wrong here. Excessive disclosure on the one hand discourages smaller donors, while the FEC web site tells us very little about how political activity is used to provide access to the people who matter.
Enough about government ethics and politics, my next post will be about work at the White House that involves . . . sex, drugs and rock and roll.
Sex, Drugs, Rock and Roll, and . . . Money:
My second post in this discussion concerns the pre-appointment/pre-nomination vetting process for Executive Branch office holders nicknamed "sex, drugs and rock and roll."
As its nickname suggests, much of this process concerns matters that could embarrass the President, but that may have little bearing on a nominee's ability capably and faithfully to carry out the duties of his or her office. Still, in a scandal obsessed political culture, these matters are important.
Here how it works (see pages 84-89 in Chapter 3 of my book). The White House ethics lawyer (that was my job from 2005 to 2007) talks to a potential nominee about his or her investments, for-profit and non-profit board memberships, and other entanglements that could create problems under conflict-of-interest rules. The candidate then talks with a different lawyer, the White House clearance counsel, about his or her educational record, police record (if any), driving record, professional licenses and employment record, marriages, lawsuits, personal life and similar matters. In short, after the ethics lawyer's "money talk" there is a "sex talk."
After a preliminary decision to appoint or nominate someone to a position, an FBI background investigation is begun to confirm what was said. The candidate also agrees to release his or her tax returns to the White House. The White House sends these over to the Treasury Department for review.
I know of one instance in the eight years of the Bush Administration when this part of the process went wrong, badly wrong. That was the Bernie Kerik nomination as Secretary of Homeland Security. Some blogs reported that I was the person who vetted Kerik. That is not true, as he was nominated and the nomination was withdrawn months before I began work at the White House. Fact is that nobody vetted Bernie Kerik, which was the problem. Never again, I believe, was the vetting process short circuited and clearance counsel left out of the loop. Lesson learned.
The new Administration has not been so fortunate. I admire our President, and I am inspired by his vision of a more ethical Washington. He is too smart, however, not to know that a poor vetting process quickly leads to poor appearances, and that poor appearances give opponents a chance to score quick political points. Most of the vetting problems for nominees were while he was President-Elect, but the President needs to fix the process now. He cannot afford more mistakes.
Never mind the Treasury Secretary who didn't pay his taxes (if he makes it past April 15, he probably gets to keep his job). Never mind the failed attempts to fill cabinet posts at Health and Human Services and the Commerce Department. Let's look at another issue that was under the radar screen and apparently not part of the vetting process.
When I was at the White House, we looked carefully at corporate directorships. Membership on the board of a company with serious corporate governance problems was a strike against a potential nominee.
This makes sense. People who cannot run private companies should not help run America.
Corporate board members are responsible for hiring, supervising and compensating the CEO and other senior officers. Many corporate board members do their job well. A few do not. These few are not the strongest candidates for high level government jobs that require the public trust.
How then could a high ranking position it the State Department in 2009 go to Richard Holbrooke who was a director of AIG between 2001 and 2008, who was on AIG's compensation committee, and who resigned from AIG in the summer of 2008 just as things were falling apart? Holbrooke is a talented if controversial diplomat with a track record in Kosovo, and he brings this experience to his present position as liaison between the United States and parties interested in the War in Afghanistan. Nonetheless, news reports suggest that the White House did not think about AIG when appointing Holbrooke, and did not consider whether a man who could not keep AIG's risk prone management in check can effectively deal with a geographic region riddled with corruption, not to mention Al Queda and the Taliban.
And there is more. Holbrooke left the Clinton Administration for investment banking. The Department of Justice Public Integrity Division later charged that he violated post-employment conflict of interest rules by representing back to the State Department on behalf of an investment bank. The charges were settled with payment of a $5,000 fine. Details are in an August 14, 2000 memo titled 1999 Conflict of Interest Prosecution Survey sent by the Office of Government Ethics to designated agency ethics officials:
In 2001 Holbrooke became a director of AIG. According to the Associated Press, SEC filings indicate that AIG paid Holbrooke hundreds of thousands of dollars in cash and stock in 2006 and 2007 (2008 compensation figures are not yet available).
One could argue perhaps that AIG was a good corporate citizen in its charitable contributions. These also, however, were in one respect problematic. AIG and the until recently AIG-affiliated Starr Foundation contributed a lot of money over several years to the American Academy in Berlin, itself a good cause. Dig deeper, however, and one finds that the American Academy was founded by none other than Holbrooke who also served as its Chairman. Is it pure coincidence that Holbrooke was one of AIG 's outside directors who helped decided how much money AIG's senior executives got paid? Conflicts of interest of this sort are not per se illegal (perhaps they should be) but they do not reflect well on corporations or the directors who run them.
So far, the White House response to Holbrooke's involvement in AIG has been tepid at best. According to the AP, the White House said that Holbrooke was "unaware" of the big retention bonuses handed out by AIG to its key employees. That's my point. A company's directors should be aware of how much executives get paid because its part of their job to be aware.
President Obama has observed that, "[n]obody here was responsible for supervising AIG and allowing themselves to put the economy at risk by some of the outrageous behavior that they were engaged in." The President probably meant to say that somebody had that responsibility at AIG, and that somebody did not do their job.
The White House may decide that, despite these concerns, Holbrooke should remain in his current post as liaison to Afghanistan. Many factors, not just his role in AIG, are relevant to appointing and retaining an official in such a position. Holbrooke may have good intentions; he may just not be very careful. Nonetheless, the White House should make it clear that these concerns are not trivial and that in general how well one does as a fiduciary for a public company is a very relevant factor in predicting how well one will do as a fiduciary for the public.
Ethics in Illinois:
I spent years listening to criticisms -- some fair, but many unfair -- of President Bush and members of his Administration. I was particularly troubled when government ethics was used as a political weapon instead of seen as a problem that both parties need to address (see page 267 of my book, Is Partisanship an Obstacle to Ethics Reform?). I do not agree with some of President Obama's policies (I worry that the dramatic expansion of government will create many problems for our Country including problems with government ethics). I strongly object, however, to using ethics as a political weapon against the President in circumstances where it is not justified.
I am still looking for convincing evidence that the President can be blamed for corruption of Chicago politicians. I don't see it. To the contrary, the President appears to have jumped ahead of many other Illinois Democrats because he was perceived to be both honest and intelligent, and voters wanted a change.
Both political parties in Illinois are to blame. Illinois may soon become the first state with two governors, one Republican and one Democrat, who serve their terms concurrently. Terms of incarceration that is. Governors Ryan and Blagojevich, if he is convicted, should consider sharing a cell; they can talk politics and perhaps learn more about bipartisanship. A Governor's Wing in an Illinois federal prison might also be appropriate because unless things change there will be future inmates with a similar pedigree.
I know something about Illinois politics because I lived there not only as a law professor in the late 1990's and early 2000's but also as a teenager in the 1970's, when Dan Walker (D) was Governor. Governor Walker later upheld an Illinois tradition by serving 18 months in prison for bank fraud.
Illinois, however, should be proud of a long line of politicians who rose to prominence despite corruption in the political parties that supported them. Adlai Stevenson, Adlai Stevenson III., Charles Percy, Paul Simon, Peter Fitzgerald, and many other names come to mind. The evidence suggests strongly that President Obama fits within this category.
Indeed, in 2004 it was corruption in the Illinois Republican Party, not the Democratic Party, that did the most for then State Senator Obama's career. Peter Fitzgerald, a first term Republican, held the U.S. Senate Seat, which he had won from Carol Moseley Braun. I got to know Senator Fitzgerald while I was teaching at the University of Illinois. He was a fine Senator, but he did not always do what made him popular.
Fitzgerald had jumped in line ahead of Republican machine politicians and in office he stood up to them. He insisted that the Lincoln Library at the University of Illinois not be used for political patronage by Governor Ryan. With a bribery scandal brewing in the Governor's office, Senator Fitzgerald asked President Bush to appoint a United States Attorney who would prosecute Republicans as well as Democrats for political corruption (Patrick Fitzgerald, who is no relation to the Senator, got the job, and then did his job which eventually landed the Governor in prison). Governor Ryan's Republican machine made it clear that there would be a primary challenge to Senator Fitzgerald in 2004. Fitzgerald probably would have survived, but he would have had to spend millions of his own money to keep the seat. He called it quits.
The Republicans then found a nominee named Jack Ryan (no relation to the Governor). Things looked good until the Democrats found Ryan's divorce papers in a California court file (the Republicans did not think to look into the divorce before nominating Ryan). When the divorce papers revealed tales of Paris s&m bars and other salacious material, Ryan was finished (that kind of thing does not fly downstate where the Republican votes are).
At that point, I strongly suggested that the Illinois Republican Party look to its younger generation of rising stars, perhaps State Representative Chapin Rose (R -- Mahomet). Even if it lost the seat, the Party would have a chance to showcase honesty and intellectual gravitas in its younger ranks. This suggestion was ignored. For a while it looked as if a dogcatcher, provided it was Governor Ryan's dogcatcher, could get the nomination. I even considered making a go for it on a reform platform -- but I knew that my talents, whatever they might be, lay elsewhere.
The Republicans did worse than the dog catcher. Alan Keyes is a bright man with interesting ideas, but he ran a lackluster campaign, most of it from offices out of state. State Senator Obama was destined to score a blowout, winning the entire State by margins Democrats had thus far achieved only in Chicago. He was going to be the star of the 2004 Democratic convention. The rest is history.
I have since left Illinois, but I am saddened by the fact that so many governors and other Illinois politicians have headed off to jail over so many years, and politicians who are corrupt remain in office. Many Illinois politicians are not corrupt, but they tolerate corruption. Some, including now President Obama and State Representative Rose whom I mentioned earlier and who served on the committee that impeached Governor Blagojevich, speak out against corruption. The fact that these people serve in the Illinois legislature with some corrupt colleagues -- or that they may meet some corrupt people along the way — should not be held against them unless we do not want anybody honest going into politics in Illinois. Regardless of party affiliation, I hope we can look back with pride upon the era of Stevenson and Percy, be grateful in the present for President Obama's commitment to ethics whether or not we agree with his policies, and look forward to a new more ethically fit generation of leaders in Illinois and around the Country. This has nothing to do with being a Republican -- it has everything to do with being an American.
I am not stating a conclusion about how this matter ought to be resolved, and there are competing concerns. I am saying that the concerns I have raised ought to be taken seriously.
18 U.S.C. 207 is a statute that can carry criminal penalties. Violations are serious, not "minor" as some comments here suggest. Bush Administration officials were told in ethics lectures that all ethics rules are important, but that this and other criminal statutes are extremely important. I believe the advice in the Obama Administration is the same. I have no idea what was said in ethics debriefings for departing employees in the Clinton Administration when Holbrooke left the State Department, but the rules are clear and he should have followed them.
The AIG facts speak for themselves. The company was very badly managed for a long time (there was another round of scandals in 2004-2005 before this one). The directors' job was to prevent this kind of thing from happening and they did not do their job. The taxpayers now will be paying the bill.
Afghanistan and surrounding countries have problems with corruption and incompetence. Dealing with corruption and incompetence there has become our problem. I hope the President has somebody over there who can understand and address these issues.
Once again, my concern is that these matters be taken seriously, not necessarily that anyone be removed from office. The President's vetting process also should catch these types of things so they can be addressed honestly and openly at the time a nomination or appointment is made.
Richard W. Painter
One commentator here reports that the divorce papers for 2004 GOP Senate candidate Ryan mentioned the possibility of (i) public sex in a Paris bar, and (ii) a threesome with the ex-wife and with another woman.
I am not sure what is meant by a threesome, but unless this refers to a three-person prayer meeting or something of the sort, this is enough to blow the election downstate. Blow the election downstate and the GOP is dead in the water. In politics appearances count and the assumption that divorce papers under seal will remain under seal is naive. It sounds to me as if the GOP blew that Senate election fair and square and Obama won it fair and square.
Another point --- the nominees who have been problems have not been from the President's Chicago inner circle but other Democratic party stalwarts, many of whom did not work for his campaign until he got the nomination. Contrast this to the problems with the inner circles of Nixon, Carter (remember Bert Lance!) and Clinton and other presidents who brought to Washington some people from their home states who should have stayed home.
Vice President Cheney:
A few commentators bring up Vice President Cheney.
I represented the President and his staff, not the Vice President and his staff. David Addington handled that side of things, and I don't think he is blogging today.
I take issue in my book, however, with the Vice President on a few matters including the following:
Although the Vice President did not retain an economic interest in Halliburton that likely affected his official duties, the complex arrangement used by his lawyers to donate his Halliburton stock options to charity while he retained title to the options would not have passed muster under the federal conflict of interest statute 18 U.S.C. 208. The only reason the arrangement worked legally was because Section 208 applies to every federal employee except the President and Vice President. Anything he did to dispose of Halliburton stock or stock options would be purely voluntary. Nonetheless, when appearances mean everything in Washington, he should have gotten rid of the options. Once the invasion of Iraq and reconstruction of Iraq were imminent, this became an even more pressing concern.
The Vice President's staff at times spent too much time arguing about who had the power to tell who to do what -- separation of powers and executive power issues -- instead of who should do what. For example, there was a dispute with the National Archives over whether its regulations for handling of classified information applied to the Office of the Vice President (OVP). Because OVP has both legislative and executive branch functions these are fascinating constitutional questions for a law review article, but OVP's spat with the National Archives did not address the issue that most Americans care about, which is whether proper procedures for handling classified information are being followed. This was particularly worrisome when there was in fact a controversy over whether classified information about a CIA agent was leaked and the OVP had some connection with that controversy. I was the person charged in November 2005 with giving ethics lectures, together with Bill Leonard from the National Archives, to the entire White House staff on handling of classified information and other ethics matters (this is I believe the only time I was written about widely in the newspapers). From an ethics lawyers' perspective it does not help to have some people arguing about whether the rules technically apply to them.
Finally, Scooter Libby got a good deal from the President; a full pardon would have been too much. Perjury traps are not that difficult to avoid if one uses an old strategy called telling the truth. I regret that we did not include in White House ethics lectures a warning "do not lie under oath" but such should be self evident, particularly after the previous President nearly lost his job over perjury or near perjury on a relatively minor matter.
I should add a word about what I can and cannot talk about. I cannot discuss specific communications to me from the President or his staff or specific information learned in the course of my legal representation that was intended to be confidential. I do, however, discuss in my book the types of issues we confronted, all of which are public knowledge and many of which will also be confronted by President Obama and his staff. The President owns the attorney-client privilege, and my ethical duty to keep confidences also runs to him. The President can waive the privilege or the duty, but has not done so. How such matters are handled by Presidents when White House communications are those made under former Presidents is an issue that I will leave to them. Some argue from a policy perspective that none of this information should be privileged or even kept confidential, but such has not been the generally accepted practice. I find plenty to talk about in my book without having to explore the outer limits of the privilege or the duty to keep confidences.
Want That $21 Hamburger? You Can't Have It. But . . . :
My third post goes to the heart of what my book is about, the fact that federal ethics regulation focuses too much on that which doesn't matter and too little on that which matters.
Executive Branch employees, for example, cannot accept gifts worth more than $20 from so called "prohibited sources", although there are numerous exceptions to this rule including gifts from personal friends, attendance at widely attended gatherings (WAGs), gifts of politically related travel, gifts of official travel, and more. If I were to send a copy of my book (some of you have already pointed out what that costs) to a member of the White House staff who was not my personal friend, it would be sent unread to the federal government's gift warehouse. The warehouse I understand contains everything from Rolex watches given to U.S. intelligence officials by the Saudis to a wine collection. The federal gift rules meanwhile are exceedingly complex, making many ethics officials yearn for some of that wine to accompany their well worn copy of the Code of Federal Regulations. With the exception of the wine, and perhaps some of the watches, however, almost everything in the warehouse is stuff that nobody wants anyway, and stuff that even if accepted in violation of the gift rules would not have affected performance of official duties.
The gifts that really matter are more loosely regulated. Campaign contributions and private sector employment opportunities are chief among them. True, there are limits on individual campaign contributions, but that is where bundling of contributions comes in, and in any event unlimited amounts of money can be given to 527s and other special purpose entities (SPEs) that do what political campaigns also do (attack an opponent, promote an agenda, educate the electorate, etc.) As for post-government employment, here too there are rules, such as the prohibition on participating personally and substantially in an official matter that has a direct and predictable impact on an entity with which you are negotiating for employment. 18 U.S.C., Section 208. These rules also are easy to evade.
Consider the following conversation:
"Treasury Official: You said you need some bailout money. Is $20 billion really enough? Don't you think you need 30?
Investment Bank CEO: I'll take 30, although $40 billion would be better. You really ought to work for us someday when you finish at Treasury; I know just the position we could give you.
Treasury Official: My ethics lawyer told me I can't talk to you about that, at least if I am going to participate personally and substantially in this particular matter, which is to give you the $50 billion, or whatever it is you need.
Investment Bank CEO: I understand. All I really meant to say is that we have a lot of talented people like yourself around our firm and that we want to keep them and hire some more. Speaking of keeping the people we have, I hope that $60 billion you are talking about does not come with strings attached that would affect our bonus program.
Treasury Official: Of course not. We made sure the bill Congress passed had a provision that would protect our -- excuse me I mean your -- compensation arrangements."
This smells for sure, but probably passes muster under Section 208.
Solving the problems that really matter -- excessive influence of campaign cash and corrupting elements of the revolving door -- is not easy. I have a few ideas that I will discuss in later posts. My point here is that existing regulation does not come close. Indeed, existing regulation may be a smokescreen that makes government appear ethical while doing little that actually makes government more ethical. If so, could the regulations be doing more harm than good?
Richard W. Painter
This theme reminds me of a story about the time a Governor of New York was running for President in 1932. The Governor spent most of his time at campaign rallies, in union halls and among the common people he hoped would vote for him in November. Occasionally, however, he kept his ties to prominent families in New York society, whom he hoped would at least tolerate him in office as "one of us."
One of the Donners, I believe it was William H. Donner, invited the Governor to a family wedding. The Governor accepted on one condition, that there would be no liquor served at the wedding. Prohibition was the law, and a candidate for President could not be caught amongst people who were breaking the law. Donner agreed.
The wedding reception that day was a strange sight. Around the bar stood members of the most prominent families in New York, drinking ice tea and lemonade. They appeared unhappy. Their host Mr. Donner was also unhappy.
Finally, the Governor arrived. He got out of his car, looked around and then acted as if he had forgotten something. He instructed his driver to go back into town. The Governor meanwhile greeted the wedding guests and waited. When his driver returned the Governor retreated into Mr. Donner's library.
After a while, Mr. Donner went to the library to tell the Governor it was time for lunch. Governor Roosevelt was sitting in a leather armchair holding up his glass.
"A drink Mr. Donner?"
"You son of a . .. . !"
F.D.R. was elected that November and took office the following March. Prohibition was repealed. I understand Mr. Donner moved to Canada.
Despite the hypocrisy here, I have some sympathy for both Mr. Donner and Governor Roosevelt. As I discuss in chapter 9 of my book, religious and not-so-religious groups have at various points in our history lobbied hard for federal regulation of personal morality. Prohibition was the culmination of a thirty-year campaign, and the issue influenced elections. Proponents finally got what they wanted, and it was of course a failure.
While federal agents were busy busting up bars in the 1920's, Wall Street was intoxicated in a different way. Much of what was going on in the securities business was already illegal under the common law of fraud. Nobody seemed to care.
This is far afield from the specifics of government ethics regulation, but my point is that there is no point having rules that almost everyone ignores. Doing so encourages disrespect of the law, and disrespect for the law may spill over into other areas where law is a lot more important.
F.D.R. was a brilliant politician. He helped put the finishing touches on repeal of Prohibition so liquid assets could flow through the economy more freely. Then he raised taxes. Meanwhile, in 1933 a group of young Harvard Law School graduates led by Tommy Corcoron assembled over bottles of whisky in a room in Washington's Carlton Hotel to draft the 1933 Securities Act. I know they enjoyed the whisky, particularly when they drafted sections 2, 4 and 5.
I understand the President is taking questions from the public on the WHO web site. I encourage everyone to log on and ask. You might get an answer.
What we really need by the way is something like the Prime Minister's question time in the House of Commons. I have never seen anyone as good as Prime Minister Blair at the art of ducking. Even President Clinton. Admittedly, the back benchers are very rude, but a good Prime Minister can take it and the whole episode is great entertainment.
Legislating Morality and Government Ethics:
As one commentator points out, the line between legislating personal morality and legislating anti-social behavior is not always clear. There are gray areas. My point, however, is that the more government tries to regulate people's lives, the more difficult it is to get people to comply with the law. Noncompliance undermines public confidence in law. We should choose the laws we really need.
I may be wrong on this, but I do not believe prohibition of alcohol was something we needed in the 1920's. Enforcement of state anti-fraud statutes in the securities business was something we needed and didn't have.
And there are more contemporary examples. See Bowers v. Hardwick, 478 US 186 (1986) (upholding criminal statutes that almost nobody enforced regulating conduct widely considered nobody's business), overruled in Lawrence v. Texas, 539 U.S. 558 (2003).
Regulating sex is about as likely to be successful as regulating booze. I look forward to hearing convincing evidence to the contrary.
Excessive government regulation affects government ethics because it brings more lobbying and more money into the political process to address an entire range of issues in addition to those that need to be regulated. The modern day "morality crusade" has become a very lucrative enterprise for some -- and is very much tied up in our dysfunctional system of campaign finance -- but it is not necessarily good for the Country. More on this later.
Bailouts and Government Ethics
have never mixed, and never will.
Let's start with the great bailout of 1789. The Treasury Department was born and its Secretary, Alexander Hamilton, proposed that the new federal government use the Bank of the United States to pay off the Continental Revolutionary War debt at 100% of face value and also bail out the states by paying off their debt at 100%. The notes were trading at 20% to 30% and speculators -- many of them Hamilton's friends -- were buying them up furiously. Members of Congress had to approve Hamilton's plan, which they eventually did, but many bought up notes first.
Senator William Maclay (D --PA) and some other Democrats complained that this entire business was unethical. Maclay recounted in his Journal that Members of Congress and other speculators sent stage coaches all over the West and South with cash to find and buy as many of the notes as possible from farmers and war veterans and bring the notes back to New York to sell as soon as Hamilton's plan was a done deal. The scheme worked, but Congress responded by imposing a statutory ban on the Secretary of the Treasury or the Treasurer from being "involved" in the purchase or sale of federal or state government bonds while in office. The 1789 statute is still on the books today and incoming Treasury Secretaries are warned to make government bond purchases and sales before taking office. Hamilton's First Bank of the United States was also plagued by the allegations of corruption. Jeffersonian Democrats in Congress eventually succeeded in denying renewal of its charter in 1811. Congress, however, did nothing to address the trading in government bonds by its own Members.
When I gave a lecture in 2006 on the 1789 bailout plan, I thought government bailouts of this magnitude and the corruption that came with them were an interesting part of legal history. See Ethics and Corruption in Business and Government: Lessons from the South Sea Bubble and the Bank of the United States (University of Chicago Law School 2006 Maurice and Muriel Fulton Lecture in Legal History) (published by the Law School and available on SSRN)
2008 and 2009 brought another series of massive federal bailouts. These bailouts are no more compatible with government ethics than was the bailout of 1789. The fact that we have more rules on the books about financial conflicts of interest and insider trading will make some difference, but probably not much.
There is clearly dissatisfaction with the "Goldman Sachs goes to Washington" phenomenon that has spanned at least two administrations. True, the top Treasury officials who came from Goldman were forced to sell their Goldman stock (the sales in 2005 and 2006 were at high prices compared with what the stock would fetch today and the Office of Government Ethics provided the "certificate of divestiture" needed to defer capital gains tax on the sales). Nobody thus had any more Goldman stock upon reaching the Treasury Department, and in any event I doubt anyone at Treasury consciously intended to help Goldman in any bailout decisions.
It doesn't matter. Others on Wall Street and elsewhere complained that bailouts were arbitrary. Lehman Brothers, an old Goldman rival, was allowed to fail. AIG, which owed Goldman about $20 billion as counterparty in derivative transactions, was bailed out. When officials left Treasury, some went to banks that also were asking Treasury for bailout money. Actual impropriety I very much doubt; but there were and there will continue to be appearance problems. These problems however were unavoidable if the bailout deal was going to get done.
How do we fix this going forward? First, we can tinker with ethics rules and agency procedures to make things better at the margins. I discuss some of these ideas in my book. There could be quotas on the number of very senior Treasury officials from a single investment bank. Treasury officials could be prohibited from discussing any official matter with a previous employer for a period of two or three years. As I suggested in an earlier post, Treasury officials could be barred from speaking at or even attending political fundraisers where they are likely to be pressured for bailout funds and pumped for inside information about who is going to be bailed out next. Departing Treasury officials for one year could be prohibited from taking a job at a bank that received funds in a bailout which they participated in personally and substantially (similar restrictions are now imposed on some government procurement officials). All of this might make some difference.
A more radical step would be to eliminate the revolving door and staff the senior ranks of government entirely with career bureaucrats. If we are going to have an industrial policy like France where the government chooses winners and losers in the private sector, why not have a civil service like that of France? The American system of political appointments is not well suited for a government that gets into everything, pays for everything and ends up owning a piece of everything. There are simply too many conflicts of interest.
Finally, perhaps because we value the type of government we have and the experience that private sector jobs bring to government, we might consider a radical idea: no more bailouts. We will have to avoid allowing companies to get "too big to fail", through antitrust laws or otherwise, or alternatively figure out a way to protect the rest of the economic system when a big company does fail. Whatever is done, we cannot escape the fact that bailouts and ethics don't mix. We found this out in 1789 and we should know this now.
The First Bank of the United States:
Thanks to MarkField for pointing out my error — the Bank's charter did not expire in 1808, although I believe 1811 not 1812 is the correct year and I have inserted 1811 in my earlier post.
In my post, I was careful to refer to "the" allegations of corruption, which were accusations of insider trading and conflict of interest by speculators and Members of Congress dealing in federal and state government bonds. It is true that the First Bank — unlike the Second — was otherwise operated in a relatively clean manner. This did not matter. Jeffersonians hated the bank and hated Hamilton and everything he stood for, and the scandal from speculation in government bonds had tarnished the Bank along with the rest of Hamilton's economic agenda. Sound economics perhaps the Federalists had, but without ethics at the outset, sound economic policy may go nowhere.
The Second Bank was set up after the War of 1812 when the government realized that without a Bank it could have difficulty raising money, particularly compared with England. This Bank was indeed "ethically challenged" for much of its existence (including Bank President Nicholas Biddle's payoffs for Senator Daniel Webster). President Jackson was able to use these and other allegations against the Bank to shut it down as well.
The United States did not get another government bank until the Federal Reserve was established in 1913. When a Wall Street bailout was required in 1907, J.P. Morgan & Co. had to work with the Treasury Department to get the job done. The Bank of England had been around since 1694, a 220 year head start on the United States. Business ethics and government ethics I believe were part of our national bank story or lack of one for so long.
England of course had its own experience with the combination of bad business ethics and bad government ethics, the South Sea Bubble of 1720. Many Members of Parliament were trading in the stock — and enacting bills to promote the Company — before it crashed. The King's mistress was stock jobbing as well, although I am not sure that similar access to inside information was given to the Queen.
The result was the Bubble Act, which restricted use of limited liability for transferable shares for over a century (the Act's actual impact on England's economy is a matter of debate as it was relatively easy for London solicitors to figure out a way around the Act). Once again, the reaction to ethics scandals in government and business, particularly when the two are combined, can be bad economic policy or bad regulation. Legislators, rushing to cover their posteriors, may take rash action.
More on all of this is in my Chicago legal history lecture, available on SSRN.
More recently, we had Enron and Worldcom in 2001 and 2002, and more recently the Wall Street meltdown. The rest of the story speaks for itself.
Religion and Government Ethics:
For comprehensive discussion of the First Bank of the United States, a leading authority is Mark R. Killenbeck, M'Culloch v. Maryland: Securing a Nation (2006) (Killenbeck has the spelling correct). The book is reviewed by H. Robert Baker in
Now that I have inflamed nearly everyone by suggesting that partisan political activity be toned down at the White House, I will turn to religion.
I start with the radical suggestion that the best place for free exercise of religion in Washington is St. John's Church across the street from the White House, or any other church, synagogue, mosque, temple or house of worship. Bringing religion directly into the work of the White House or another government entity can only cause trouble.
I do not address this as a matter of constitutional law, or theology, which I leave to others. I am saying that government entanglement with religion is difficult from a government ethics lawyer's perspective. The more entanglement there is, the more difficulty there is. Combine religion with partisan political activity, as many government officials now do, and the ethics lawyer confronts a three way mix of Hatch Act regulations, the Establishment Clause and government ethics regulations. I pointed out in an earlier post that ethics problems often begin when someone thinks he or she can wear two hats instead of one. Try three.
We have throughout history had references to religious values by persons making government policy, perhaps even more so than references to civic values of political parties. This is not the problem. Appropriate boundaries are difficult to draw, but to the extent actual government functions instead of political rhetoric test the limits of those boundaries, government ethics and other legal questions move to the fore.
Entirely apart from Establishment Clause issues, a lawyer must be mindful of Office of Government Ethics regulations that prohibit government employees from using their office to endorse a particular organization, such as a particular church. There are also prohibitions on use of public office for the private gain of an individual or an organization.
Government meetings with religious leaders, like meetings with union leaders and corporate leaders, are appropriate. Government meetings with religious leaders that are used to promote fundraising by a non-government organization are, however, inappropriate use of public office for private gain. A White House staff member's speech to members of a religious organization can be an official speech, but a White House staff member should actively participate in a sectarian religious service only in a personal capacity not an official capacity (giving an official speech and then passively sitting in on a sectarian service afterwards is in the gray area). This is also an area in which a more flexible standard is applied to the President and Vice President and to ceremonial functions where one of them is present such as a memorial service.
One time I recommended that a particular religious leader be invited into the White House. I was concerned that press coverage suggested that the White House relied too much on politically active evangelical leaders and at least twice thought I saw James Dobson hanging around the West Wing Lobby. The Office of Faith Based Initiatives was intended to reach out to a broad range of religious leaders, which it was doing, but having more high profile leaders from different perspectives could always help. I had met the retired Archbishop of Canterbury, George Carey, at a social function and I had heard that he was in Washington for much of the year. I suggested that the White House Faith Based Office invite him in for a meeting, which it did
The meeting was supposed to be official and it was informative, at least from a international comparative perspective, for assessing a justification for having a White House Faith Based Office to begin with. The meeting was to inform us about how much churches in the Anglican Communion do or do not require support from governments around the world to conduct their social programs for the poor (the answer we learned was that they do not get much government support for these programs and the best thing governments can do is not get in the way)
At the end of the meeting a White House staff member suggested we end in prayer. Others seemed to consent. Archbishop Carey then raised the point that this might not be suitable because everyone else in the room was there in a government capacity. He was assured that U.S. government employees were free to pray in a personal capacity. The situation was confusing, however, because he had been told that the purpose of the meeting was official.
There we were, I as the White House ethics lawyer at what everyone had been told was an official meeting, and the Archbishop of Canterbury was calling us on questions of separation of church and state. True, the meeting could be personal instead of official if people wanted it that way. I didn't see how it could be both.
The meeting became unofficial. With the last "amen" was the executive privilege, if there ever was any, for the entire meeting waived? Alternatively, were there two meetings -- an official meeting and a prayer meeting -- instead of one? This was a muddle indeed.
Admittedly, many of us bring personal views, and sometimes our religious faith, to this discussion. I belong to a church known for a formal mode of worship that does not spill over easily into the workplace (more recently Episcopalians have also been known for ignoring the world's problems while engaging in a loud argument between those who believe the Bishop of New Hampshire is not qualified for office and those who believe that the personal life of the Bishop of New Hampshire is the business of the Bishop of New Hampshire). Perhaps it is my own bias, but I am persuaded by the analysis of religion and politics in a book by an Episcopal clergyman who was also a United States Senator. See John Danforth, Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together (2006)
Some conduct in this area is perfectly legal; it is just embarrassing. An example was a series of "Justice Sundays" in 2005 during which U.S. Senators and other politicians conducted telecasts from churches urging an end to filibusters and other tactics Democrats were using to delay Senate confirmation of nominees to the federal bench (the Eleventh Commandment "thou shalt not filibuster" is of greater or lesser theological importance depending on who controls the Senate). Such electioneering would not occur in the vast majority of churches, synagogues, mosques and other places of worship. Many Americans believe the Justice Department and Senate hearing rooms are more appropriate places to discuss these issues. Because so many people found it distasteful, "Justice Sunday" may have backfired and encumbered the Administration's ability to get some qualified judicial nominees confirmed.
I am not suggesting that more rules will address this problem; rules often make things worse. I am suggesting that voluntary restraint by government officials who stand well clear of legal limits would restore public trust in government, and in organized religion. It would also make a government ethics lawyer's life easier.
We seem to have reached a point where the manner in which one Republican (Governor Palin) says she does not enjoy working with certain other Republicans (McCain staffers) is to say she does not want to pray with them. We have also reached the point where such a remark, instead of being ignored, is viewed as the highest form of insult and a cause for yet more Party infighting. If we keep carrying on in this way, I hope someone is praying for the future of the Republican Party.
As Republicans conduct what amounts to a factionalized prayer meeting, the Country is under one-party rule. The Government owns more and more of our economy and asserts more power over our private lives. Churches for the time being remain independent, but one wonders what will happen when churches, bankrupted by litigation, discover that they too need a bailout and that only one small clause of the Constitution stands in the way.
A Response on Ethics and Religion:
A few points of clarification.
I am a proponent of prayer. Although the best place is at home or in a house of worship, any place will do. That can include a government building when a government employee is off-duty. Indeed, in addition to attending services regularly at St. John's I at times joined the White House Christian Fellowship for its meetings on the third floor of the Eisenhower Executive Office Building (EEOB). Although the meetings were occasionally spoiled by an overzealous junior staffer or intern who prayed for political opponents and other assorted sinners, in general these meetings were conducted in a dignified manner; they were both informative and inspiring. The White House Christian Fellowship also lacked the problems that made Attorney General Ashcroft's Bible studies vulnerable to the claim that there was pressure to go. None of the most senior White House staff attended and more than once I was the only commissioned officer in the room.
All of this, however, was done in a personal capacity, usually over the lunch hour. Nobody ever characterized this or any other prayer group meeting as an official function of the United States government.
This comports not only with the law, but with my understanding of prayer. I do not pray as a spokesperson for the United States government. I ask forgiveness for my own sins not those of the United States government except to the extent they are in part my own.
The Archbishop did not stop the prayer from going forward, or even try. Neither did I. It is difficult, however, to characterize a meeting that ends with a sectarian prayer, here a Christian prayer, as an official function of the United States government. When the prayer closely parallels the subject matter of the meeting, separating the personal capacity prayer from the official capacity meeting is artificial. It is also difficult to hold a productive meeting to conduct official government business when some employees of the government entity because of their personal religious convictions might not be able to participate in that meeting to the same extent as others.
These may have been some of the problems that the Archbishop wondered about. Regardless of whether a country has a constitutional bar on state establishment of religion -- England in fact has an official church -- the practical problems are the same. It would not matter if the meeting were to be held in the EEOB or in Whitehall in London; if a Jewish or Muslim member of the staff attended the meeting, the situation could get awkward. Personal functions would encroach on the official to an extent that conduct of official business could be impaired.
These are not problems created by lawyers or by bishops. These are problems inherent in any society where people of different faiths live together and conduct the business of government together. I doubt the lines here are best drawn by courts or by legal rules. These lines are best drawn by common sense.
The meeting in my view ended up being unofficial, which is fine. If I had known, I would have suggested that the Archbishop be invited to attend a meeting of the White House Christian Fellowship or some other private group. That was not, however, the original intent of the invitation.
Finally, analogizing this situation to ceremonial functions such as an inauguration or a state funeral is inapposite. There are longstanding traditions of bringing religious elements into these ceremonies, usually in a way which is widely understood not to interfere with the objective and which may even promote it. An interesting law review article could be written on the lawsuit that was served on the Chief Justice demanding an injunction against a Presidential oath ending in "so help me God". Just about everyone, however, could predict the outcome of that litigation. Whatever time the Chief Justice spent reading the complaint probably would have been better invested rehearsing the oath of office.
Once again, I do not claim expertise in Establishment Clause issues. Government ethics rules -- here those against endorsement — are designed to stop people well short of conduct which violates the Constitution. The issue is whether whatever we do, particularly that which we do in an official capacity, interferes with public confidence in the proper functioning of our government.
As an aside, I should respond to one commentator who suggested that a White House ethics lawyer could "take away my money, my job, or my liberty, using the power of the state." Actually, I did nothing of the kind. I did ask several people who voluntarily chose to work for the government to sell some investments, including investment bank stock, at prices far in excess of what those investments would be worth today, while throwing in deferment of capital gains tax with an Office of Government Ethics certificate of divestiture. I have written in my book that this process needs to be simplified. I have to say however that many of the people I helped come into government have a lot to be thankful for, just as the Country should be thankful for their service.
I make a few points in my book.
First, the memos were requested and written before I arrived at the White House in early 2005, and furthermore this is not the type of matter that is brought to the attention of government ethics lawyers. This is part of the problem. Government ethics lawyers should be consulted in the White House and in the agencies about a wide range of matters about which they are never consulted (e.g. document retention policies, proper procedures for dismissing political appointees, etc.). Instead ethics lawyers are tied up in the infinitely complex financial disclosure system (Form 278). They are kept busy arguing with dozens of prospective nominees each year about whether all of the underlying holdings in a hedge fund need to be listed separately on Form 278 (who cares when the underlying holdings of most hedge funds change so quickly that the Form 278 will be stale in about a week).
Second, the questions answered in the memos never should have been asked. A sensible lawyer would know that.
Third, the answer given in these memos was deficient on its face. One does not have to be an expert on international law, the Constitution or the Convention Against Torture to read the memos and know that they are one-sided and rely on thin logic. The "self defense" argument justifying torture, for example, cannot be right. War, if justified at all in a civilized society, is justified principally in self defense. Torture, however, is not acceptable in war. That is the whole point of the Convention. Some of the memos argue that the Convention and other similar treaties cannot bind the President under the Constitution, but one wonders then why the United States signed them. Would the framers really want to deny to the United States the power to make binding treaties? The OLC memos at least had to recognize that there were arguments on the other side, and that the law could be different from what the OLC said it was.
Fourth, the OLC memos probably were so bad in part because the lawyers who wrote the memos, unlike lawyers who provide legal opinions to private clients, did not have to answer for them. Government lawyers don't get sued for malpractice when they give bad advice; private practice lawyers do. OLC lawyers instead get judgeships, recommendations from political superiors for private sector jobs or they go back to tenured posts in universities. In my book I call these skewed incentives the "malpractice liability gap" between the public and private sectors. I explore ways to address the gap, but as a practical matter it would be difficult to use a malpractice liability regime to hold government lawyers accountable.
Finally, there is the argument that these are no different from the one-sided opinions that OLC has rendered in the past to stretch the law as far as it will go, and sometimes further, in favor of the President's executive power. President Franklin Roosevelt used Justice Department lawyers to justify expanding his powers before and during World War II and many of his successors did the same. Still, as widely recognized by former OLC lawyers, there are limits to how far OLC can go. For an insightful analysis, see John McGinnis, Models of the Opinion Function of the Attorney General: a Normative, Descriptive, and Historical Prolegomenon, 15 Cardozo L. Rev. 375, 434 (1993) (pointing out a difficult balancing act because the OLC is not useful to the President unless it has credibility and a reputation for independent legal analysis).
Most important, the "torture memos" took OLC into un-chartered waters. They implicated not only the Constitution and federal statutes, but international law including treaties to which the United States was a signatory. Our adherence to widely accepted laws of war hung in the balance. Our own soldiers would probably be at greater risk as a consequence. The subject matter was grotesque. The memos authorized a violation of human rights that involved human suffering. Religious leaders of all faiths around the world condemned the policy as immoral. At least one Senator heard about the matter from the Presiding Bishop of the church in which he had been raised. See Letter dated October 16, 2005 from The Most Rev. Frank T. Griswold to Senator John McCain (R AZ) (expressing appreciation for "your efforts to preserve intact the Senate approved amendment to prohibit cruel and inhumane treatment of those held in the custody of the United States"). There are not many pastors, priests, rabbis or imams who would disagree. The topic was so inflammatory and the legal reasoning in the memos so flimsy that a successor head of OLC took the unusual step of rescinding them. See Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (2007). For all of these reasons, this was an area for OLC to tread lightly in its quest for expanded Executive power. OLC instead chose to barge ahead heedless of the consequences.
In short, there is serious doubt about whether the questions put to OLC should ever have been asked in the first place, as well as serious doubt about whether OLC was acting responsibly in the way it answered them. A government ethics lawyer might not have been able to help, but I doubt one had an opportunity to even try.
More on the Torture Memos:
I will not reiterate the many specific criticisms of the memos already made by those with far more expertise than I. A very large number of international law experts see the memos as deeply flawed, as did the Office of Legal Counsel itself.
The job of an ethics lawyer and indeed any lawyer who is a generalist is to spot issues and to identify both legal and nonlegal risks to the client. Here the memos appeared one-sided on their face and it was obvious that the subject matter could expose the United States to widespread condemnation. Whether or not the advice is technically correct, a client is entitled to be told when there are arguments on the other side and when there are risks in proceeding as planned. None of that happened here. I cannot point to specific passages of the memos to illustrate what wasn't there.
It could be argued that the client wanted the advice given. This is common in corporate representations where officers or directors ask for an opinion of counsel stating that they may do something they shouldn't do. Rarely is the opinion given because if it is, and the matter blows up, the corporation, perhaps under new management, can turn around and hit the lawyer with a malpractice suit. Not true in government.
One example only:
I am not going to go through each of the "torture memos" and point out where each one appears well off the mark. I will give just one example of the type of analysis that should make someone stop and think.
One of the memos reads
"As we have made clear in other opinions involving the war against al Qaeda, the Nation's right to self defense was triggered by the events of September 11. If a government defendant were to harm an enemy combatant during an interrogation in a manner that might arguably violate a criminal prohibition, he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network. In that case, we believe that he could argue that the executive branch's constitutional authority to protect the nation from attack justified his actions. The national and the international version of the right to self defense could supplement and bolster the government defendant's individual right."
March 14, 2003 Memorandum from OLC to William J. Haynes II, General Counsel of the Department of Defense.
This can't possibly be right. Many wars and other military engagements arise out of one side attacking the other and the need to respond so there will be no more attacks. Yet inflicting physical harm on prisoners during interrogation is widely believed to be contrary to the laws of war.
If the OLC reasoning had been the standard in World War II, we would have tortured Japanese soldiers if by doing so we could obtain information that would help us prevent further attacks on the United States. The United States did not do that, and the White House did not ask OLC for an opinion saying that we could. President Roosevelt asked the Justice Department for a lot of other dubious opinions in his years in office, but not that one.
It is true that the memo only states that a government agent, if charged with torture, could "argue" this as a defense. He could. This is also a lousy argument and the memo does not point that out. I fail to see why people at the highest levels of the United States government would be interested in hearing from OLC what specious arguments could be made by a government agent in defense of otherwise illegal conduct.
Even more shocking, there is no further discussion on this argument. There is not even an attempt to answer questions that are obvious to the most casual reader. The paragraph quoted above is instead followed directly by a short three paragraph conclusion, the last sentence of which simply states that "necessity or self defense could provide justifications for any criminal liability."
One does not have to be an expert in international law, or even a lawyer, to read this and know that something is wrong. The most basic questions about this "self defense" argument are not answered. This dog does not hunt.
What Should We Do Next?:
Although many of my commentators here disagree with me, I still believe there was poor lawyering at various levels that went into the so called torture memos.
It is also clear that efforts to single out particular individuals at OLC for blame do not get to the heart of what happened and why. The question never should have been asked to begin with. Someone high up the chain of command should have recognized that any memo on this topic would be explosive unless it unequivocally rejected torture and anything that even came close to torture. Otherwise, there should be no memo, period. That is what an ethics officer, if consulted, should have said.
There is plenty of blame to go around here, and at this point I do not see how the blame game will do us any good. It would be particularly disingenuous to look only at the lawyers who signed the memos (we know that the views of a lot of other lawyers both in and outside OLC went into these memos).
A number of commentators have mentioned state bar discipline. There is relatively little case law on discipline for bad legal opinions; in the private sector this is worked out through malpractice suits. In government, lawyers who give wrong answers or answer questions they should have refused to answer are fired or — as is the case here — have to deal with adverse public opinion. I suggest in my book some proposals for
how we might improve the quality of lawyering at OLC going forward. One is to involve more career lawyers at OLC in opinion writing, as is the practice at the Department of State. The present administration I hope will take this issue seriously by doing what it can to put its own house in order.
Disciplinary action at the state level furthermore could set a bad precedent. Once state bar associations go down that route, I fear where it would lead. I certainly would not want to be a lawyer for the present Administration coming from a Red State if the state bar happens to be controlled by people who listen to Rush on the radio.
The suggestion that criminal charges could be filed against anyone involved in these memos will go nowhere.
Finally, law professors should address this subject with constructive suggestions for change, not with invective. Of particular concern are highhanded efforts to squelch free speech on campuses by saying for example that a lawyer who worked on one of these memos should not be invited to speak or to teach. This type of thing puts the former OLC lawyers on the moral high ground in a battle over campus political correctness — a sideshow — when the real focus should be on what went wrong in the United States government and why.
Its just plain wrong:
My criticism of legal arguments justifying torture seems to have created much controversy this week. I recognize that citation to international law and the views of a former head of the Office of Legal Counsel does not conclusively establish the case against torture. Neither do the views of Senator John McCain, a man who experienced torture in Vietnam, nor the views of the Presiding Bishop of the Episcopal Church who wrote to Senator McCain.
One commentator asks me to differentiate between prohibiting torture and prohibiting consumption of broccoli. In an earlier era, President George H. W. Bush might have found this analogy amusing because he publicly stated that he disliked it when his mother made him eat broccoli. In light of what has happened in recent years, the matter should be viewed more seriously.
This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.
Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer's job is to say no.
In an earlier post I expressed some reservations about legislating certain aspects of personal morality (sex, alcohol, etc.). I worry that having too much law can encourage disrespect for the law. I fail to see why this is a reason not to have a law against torture. Simply because we do not have a law against everything, must we live in a society without laws against anything?
Finally, I did not take sides in any of my posts in the dispute currently afflicting the Episcopal Church. I did say that there are more important matters -- such as the torture issue discussed in Bishop Griswold's letter to John McCain -- than the personal life of the Bishop of New Hampshire. I hope that churches, and our government, will focus on these more pressing matters, of which there are many.
I also don't think anybody is interested in listening to Episcopalians argue about sex. When, however, an argument about sex spills over into an argument about money and real property, there is a subject about which passions truly run high. The resulting litigation over breakaway parishes, currently going on in Virginia and in many other states, involves Civil War era statutes on disposition of church property, trust law, canon law, church-state issues, corporate governance law and other fascinating questions. This litigation will entertain law professors and other bystanders, although I hope the Church does not bankrupt itself in the process.
A response on torture and setting the right priorities:
I face the curious accusation that I oppose torture in order to sell copies of my book. At most eight pages (129-134 and 137-141) of the book deal with the torture memos. Nobody should pay $55 (probably the best price for my book on line) in order to hear from me a new and insightful argument against torture. The fact that cruel and degrading treatment of human beings is wrong has already been conclusively established, for example in a best selling book available free of charge in most motel rooms.
I have been asked to provide more specifics to support my argument. There are enough specifics provided in the comments to my posts, including references to crushed testicles and similar inflictions. We should not be talking about this kind of thing in the United States.
From the opposite side, I face criticism for not being enthusiastic about state bar associations sorting through what went wrong. Fact is that, with the notable exception of the District of Columbia bar, state bar associations have said relatively little that is specific and informative about the obligations of government lawyers besides prosecutors. There have been relatively few disciplinary proceedings, apart from those against prosecutors. Ethics of government lawyers is a topic -- like the role of corporate lawyers prior to Sarbanes-Oxley -- that has suffered from benign neglect. Most authorities on legal opinion writing are oriented toward private clients, and many of these authorities are slanted toward allowing the lawyer too much flexibility in telling the client what the client wants to hear. As I pointed out in an earlier post, malpractice litigation not bar disciplinary proceedings is the mechanism by which sloppy opinion writing for private clients is deterred. It is perhaps unfortunate that we do not have, and may not be able to design, a similar malpractice regime for the government bar.
I said in my book that competence standards in legal opinion writing should be strictly enforced by the states where lawyers are licensed to practice, by the federal government, or by both (page 133). The problem is that these authorities have not, except in the most general language, articulated what those standards are. A lot more attention needs to be paid to defining and enforcing standards in this area.
What is needed is an executive order banning torture and anything that comes close to torture (I believe we now have one, but given the amount of hairsplitting in our conversation, I should reread the President's order to make sure). We then need an act of Congress signed by the President that says the same thing so the definition of torture will not change every four to eight years. The law should specifically provide that tactics such as waterboarding, sleep deprivation, and humiliation are illegal and criminal. Finally, a mechanism should be set up within the Department of Defense and the CIA to enforce the law. Prisoner abuse, whether in United States custody or in Chicago police stations, has been the subject of a "don't ask, don't tell" mentality for too long.
I will not respond to invective against the Right Rev. Gene Robinson, Bishop of New Hampshire. None of that is interesting to most readers here, except perhaps the fact that when people in New Hampshire choose their own clergy, or their own license plates saying "live free or die", there is bound to be trouble if others do not leave them alone.
The more relevant point on that topic is that many of our political leaders as well as parts of our religious establishment have focused debate in recent years on issues that reflect the wrong priorities. In 2005, in the midst of wars in Afghanistan and Iraq, weeks were spent by officials at the highest levels of all three branches of the federal government debating both sides of a case involving one terminally ill patient in Florida. That case involved important issues, but did they have to be federal issues? Meanwhile, hundreds of thousands of American soldiers are depending on our government to make decisions -- ranging from proper interrogation techniques to proper protective gear -- that could determine whether they live or die. Sometimes the federal government should have the good sense to know when it is into enough difficult matters already and should stop getting into more.