Shortly after he was elected, Donald Trump observed—with self-described surprise—that the president is exempt from ethics laws. Even if that is technically true, approaching ethics from this perspective will only undermine Trump’s own efforts to implement his agenda. In a climate of intense media scrutiny and partisanship, the president must go beyond mere legal requirements to eliminate avoidable controversies over his administration’s integrity.
In an essay last week at the Daily Beast, law professor Jack Goldsmith urges White House counsel Donald McGahn to take a proactive role in policing ethics issues in the White House. Prompting Goldsmith’s essay were recent revelations that Michael Flynn, Trump’s initial national security advisor, failed to register as a foreign agent for work that he performed on behalf of Turkish business interests last year.
According to the Washington Post and the Associated Press, McGahn knew during the transition that Flynn might have needed to register as a foreign agent for this work; but instead of directly resolving the issue himself, McGahn advised Flynn to seek the opinion of personal counsel. Goldsmith allows that McGahn’s White House Counsel’s Office may have had good reasons for taking this hands-off approach. “If so,” Goldsmith notes, “the White House should make clear those reasons immediately.”
Goldsmith is no naïve pundit. He served at high levels of government in the George W. Bush administration, first as Pentagon general counsel, and then as chief of the Justice Department’s Office of Legal Counsel under Attorney General John Ashcroft. He knows as well as anybody the challenging legal, political, and ethical issues that arise in any administration. Nevertheless, we should not be surprised if the Trump White House resists Goldsmith’s constructive criticism. Because Trump has endured months of criticism—friendly and hostile—on ethical questions, he and his staff seem to have adopted a posture of reflexive defensiveness to any hint of reproach.
Criticism of the Trump White House’s ethics began even before Trump moved into the White House. From the Trump campaign’s alleged connections to foreign influence to arguments that Trump’s ownership of domestic and foreign properties inherently raises problems under the Constitution’s emoluments clause, the White House has been besieged with criticism. And when the president’s most aggressive critics go so far as to argue that Trump’s presidency will be legitimate if and only if he immediately sells off his entire business, then you can understand why the White House might tune out criticism altogether.
It would be a mistake to take such a hard line, however. And it would be a mistake to think of these ethical issues as simply a matter of doing what the law requires and nothing more. Rather, it is in any administration’s interests to go above and beyond the requirements of law to minimize even the appearance of ethical lapses.
On this point, White House officials need to read Energy in the Executive, a 1992 book by Terry Eastland, a veteran of Ronald Reagan’s Justice Department. Eastland makes two important points: first, that an “energetic Executive” is a virtue in our constitutional system, not a vice; and second, that the president must make ethics a high priority, for its own sake.
Eastland’s first point is now conventional wisdom, by and large, among conservatives. While in 1992, many conservatives were still wary of praising executive power even after Reagan’s vigorous presidency, today’s conservatives have largely come to recognize the wisdom of Alexander Hamilton’s argument in Federalist 70—namely, that “[e]nergy in the Executive is a leading character in the definition of good government,” and that it is not just “essential to the protection of the community against foreign attacks” but also that it is equally “essential to the steady administration of the laws.” The president’s exercise of authority is not necessarily good in every instance, of course; but presidential passivity is a vice of its own.
The need for energetic executive power leads to Eastland’s second point: if we need presidential energy, then we also need the president’s administration to be supremely ethical. Because if the president allows himself to become entangled in disputes with Congress, the courts, and the press over ethical questions, then he will find his own energy depleted. Here is how Eastland himself explained it in 1992, on C-Span’s Booknotes:
[I]t’s important that a president understand that there is an independent measure, if you will, of conduct and he ought to be willing to apply it. And he ought to set an example by saying, “Look, I expect the highest kind of behavior, compliance not only with the civil and criminal laws that might apply to the executive branch, but even to go beyond that and to make sure that none of us, at any time, do anything that might be called into question.”
And again, one of the really important reasons for having this kind of standard in a presidency, I think, is that otherwise you lose the crucial ingredient, the energy, in the executive that’s needed for good government. Again, energy is the precious commodity, and it can be drained away . . . by all kinds of behavior.
The crucial point here is that if Trump does not demand high ethical standards of everyone in his administration, he will find his presidency’s energy “drained away” by press muckraking, lawsuits, and congressional investigations. And achieving high ethical standards requires more than just complying with the narrowly defined limits of law. Trump must ensure that his White House is not tainted with even the appearance of ethical impropriety.
Of course, some controversies are unavoidable, even when the administration is acting ethically and legally, because a president’s most heated critics will persist in launching unreasonable attacks at him. But President Trump, White House Counsel McGahn, and the rest of the administration should try to make their unhinged critics’ work as hard as possible.
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