President Joe Biden’s incoming team has a lot of work to do when it comes to restoring ethics in the White House and the rest of the administration.
First, the good news. Biden’s White House Counsel Dana Remus is herself an ethics lawyer. She was the chief White House ethics lawyer during the last year of the Obama administration. Before joining the Obama White House, she was a law professor at the University of North Carolina Chapel-Hill and a prominent scholar of lawyers’ ethics. It’s difficult to imagine a better pick than Remus as White House Counsel for a president who wants to make ethics a priority.
Now the bad news. President Trump has left behind an Executive Branch that is an ethics disaster area. A wide range of policies, practices and legal positions will have to be reversed for public confidence in government to be restored.
Legal prohibitions on financial conflicts of interest must be enforced. Administration officials cannot be allowed to participate in government matters that affect their investments and other business interests. Relationships with previous employers must be monitored. Former employers of high-ranking officials—including politically connected consulting firms such as WestExec which was founded by the incoming secretary of state—cannot be allowed preferential access to senior levels of the administration.
The Obama administration was successful in implementing such safeguards because of a Jan. 21, 2009, executive order restricting the revolving door of lobbyists into senior administration positions. The Trump administration had a watered-down version of that same executive order but was unwilling to enforce it and other ethics regulations.
With the inauguration of President Biden, we no longer have a president who promotes his own hotels and golf courses from the White House. From henceforth everyone in the administration must understand the strict separation of government business from private business. The administration needs to commit itself to enforcing the emoluments clause of the Constitution, which prohibits federal officials from receiving profits and benefits from foreign governments. Good relations need to be restored between the White House and the nonpartisan federal Office of Government Ethics.
Keeping Partisan Politics Out of the White House
Official U.S. government business needs to be kept separate from partisan political campaigns as the federal Hatch Act requires. We need to return to the longstanding rule that partisan political events are not held at the White House and White House staff members found to have violated the Hatch Act should be dismissed.
Although high ranking White House officials are permitted to spend some of their personal time on partisan politics, so long as it is kept separate from official functions, President Biden should by executive order impose strict limitations on personal capacity partisan political activity inside the White House, which was problematic under Presidents Bush and Obama as well as Trump.
Legal positions taken by the Department of Justice on several key issues should be reversed. This includes the position of the DOJ Office of Legal Counsel (OLC) that despite the federal anti-nepotism statute, the president is allowed to hire family members in the White House, a 2017 accommodation for Jared Kushner and Ivanka Trump that turned out to be both an ethics disaster, and when Kushner was put in charge of the Covid-19 pandemic it became a policy disaster.
The DOJ Needs to Reverse Policies
The longstanding position of OLC—in both 1973 and 2000 memoranda and again in a secret memo in 2019—that a sitting president should not be indicted for crimes also needs to be reversed. There is no constitutional authority for that position. Indeed, the U.S. Supreme Court held just this past summer in Trump v. Vance that a sitting president can be subjected to criminal process, specifically a subpoena in that case but presumably also an indictment.
The DOJ also needs to reverse its interpretation of Article II of the Constitution that allows the president to fire federal prosecutors, and other investigators including an FBI director, even if the president’s motive is to obstruct a federal investigation. Such an out of control “unitary executive theory” that allows the president to obstruct justice with impunity is wrong. No person, including the president, is above the law.
Finally, there needs to be accountability for past crimes and other misconduct in office. An independent counsel should be appointed to investigate and if evidence warrants prosecute high level officials from the Trump administration for crimes committed in office. This may include the obstruction of justice by President Trump that is described in detail in part of the Mueller Report, evidence of conspiracy to declare martial law and other acts of sedition to reverse the results of the 2020 presidential election, and incitement of sedition and insurrection on Jan. 6 at the U.S. Capitol.
The DOJ should also revisit the torture program from the Bush administration and identify individuals who may have committed federal crimes in authorizing torture or providing Justice Department legal advice that torture was permissible. Whether or not prosecution is possible at this time, the fact of criminal conduct, including some within the DOJ itself, in the torture program needs to be acknowledged and the specific individuals responsible for that conduct identified.
The U.S. has a chance to rebuild a badly damaged democracy. A commitment to ethics in the White House and the entire Biden administration will be a critical part of our new beginning.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and was the chief White House ethics lawyer for President George W. Bush.