Author Archives: Michael Glanzel

Nation-Building and Corruption: A Warning from French Vietnam

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Nation-building has long been a popular project—albeit a controversial one—among Western nations. Nation-building is a complicated activity, one that requires balancing such a wide variety of considerations, and making hard choices about what areas to prioritize. As a result, anticorruption is sometimes neglected or ignored in the nation-building process. This, however, is a mistake. Unchecked corruption can have devastating effects on nation-building. And while contemporary critics make this point in the context of modern nation-building initiatives, such as U.S.-led efforts in Afghanistan, there are also compelling historical illustrations of how tolerance of corruption can help derail the nation-building project. One such lesson comes from the French experience during the First Indochina War.

Though France had held on to Vietnam with ease from the mid-nineteenth century to the early days of World War II, the post-war era spelled trouble for the French Empire in Southeast Asia. The Viet Minh, a burgeoning nationalist force led by Ho Chi Minh, challenged French colonial dominance in the region, eventually securing the support of China and the Soviet Union. By the early 1950s, France’s military campaign against Ho’s guerrilla forces was flailing. So, rather than trying to continue to hold Vietnam as a colonial territory, French leaders decided to create an independent Vietnamese state. In attempting to build this new country, however, French leaders turned a blind eye to a corruption scheme—the so-called “Piastres Affair”—that would gravely weaken this enterprise.

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Rethinking Presidential Obstruction of Justice

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One of the greatest powers that can be granted to a national chief executive is jurisdiction over law enforcement. From the French President’s authority over the Ministry of Justice to the American President’s authority over the Department of Justice (DOJ), a number of states entrust their chief executive with significant control over the nation’s top law enforcement bodies. While these oversight powers are often exercised to achieve legitimate aims, problems arise when an executive uses his authority to shield himself or his associates from legal accountability. Such misuse of the chief executive’s authority over law enforcement is itself corrupt—an abuse of the president or prime minister’s public power to protect his private interests—and can foster the culture of impunity that allows other forms of corruption to thrive. But policing this sort of improper interference is challenging.

One possible limit on corrupt presidential interference with law enforcement is the fact that such interference may itself be a crime. In the United States, for example, it is a felony—known as “obstruction of justice”—for a government official to “corruptly” use the power of his or her office to “obstruct” a “pending or contemplated official proceeding” (such as a trial or investigation). But as Special Counsel Robert Mueller’s investigation into former President Donald Trump made clear, the current version of the obstruction of justice statute may be inadequate to check this form of presidential corruption.

For starters, it’s not clear whether the obstruction of justice statute, as currently written, even applies to a sitting president. (Scholars have disagreed on this point, with some arguing that the current statute does not apply to the president—see here and here—and others arguing to the contrary that it does.) That problem, though, has an easy fix: As Bob Bauer and Jack Goldsmith’s recent book has argued, Congress can and should amend the statute to state explicitly that a sitting president can commit obstruction of justice. Another difficulty is that, as Robert Mueller’s report stressed, under current DOJ policy, a sitting president cannot be criminally indicted. This too could be changed. The deeper and harder problem is that because in the U.S. system the president may legitimately seek to influence the conduct of criminal investigations, and because the president’s motives may be ambiguous or mixed, it is very hard, perhaps impossible, to prove that the president’s actions with respect to a pending or contemplated official proceedings were “corrupt.” Take President Trump’s decision to fire FBI Director James Comey. The Mueller Report concludes that President Trump fired Director Comey to save his presidency (which seems like a corrupt motive). Yet some claim that President Trump also had other, more legitimate reasons for firing Director Comey, including concerns about partisan bias in Comey’s investigations. And even if one contests that claim in this particular case, it’s not hard to imagine a situation in which a President moved to impede an investigation that both threatened the president’s personal interests and that the President thought was unwise or improper.

How should the law treat such cases, if the goal is to ensure that a U.S. President is not above the law, while simultaneously giving the President appropriate latitude oversee federal law enforcement?

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Rethinking the Hatch Act in a Post-Trump World

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In the United States, the Hatch Act has long served as bulwark against the corrosive intersection of partisan politics and government power. Signed into law in 1939, the Hatch Act was designed to combat the corruption associated with the so-called “spoils system,” in which politicians dole out valuable government jobs to their supporters, and those supporters are in return expected to use their government positions to benefit their political patrons. Civil service laws that create a “merit system” attack the spoils system from one direction, by making politically-motivated hiring and firing more difficult. Laws like the Hatch Act complement these efforts by prohibiting government employees from engaging in partisan political activities. More specifically, the Hatch Act prohibits any federal officer or employee (other than the President or Vice President) from engaging in political activity while acting under his or her “official authority or influence.” (This prohibition, as interpreted, covers any sort of partisan political activity while on the job, including displaying political paraphernalia, distributing campaign materials, and soliciting campaign contributions.) Penalties for violating the Hatch Act can include fines, demotion, suspension, removal from office, and temporary debarment from future federal service.

Since its enactment, compliance with the Hatch Act has generally been quite good. But that changed in January 2017, when President Trump took office. Throughout the Trump years, rampant violations of the Hatch Act plagued the federal government. High-level Trump Administration officials like Ivanka Trump, Jared Kushner, Mike Pompeo, Kellyanne Conway, and Stephen Miller, among many others, engaged in likely Hatch Act violations, with no significant consequences. This exposed an uncomfortable truth: At least for high-level political appointees, the Hatch Act’s enforcement mechanisms are too week, and the penalties too negligible, to deter officials uninterested in complying with the law. Indeed, past compliance with the Act was likely more the product of government norms than fear of punishment.

Just to be clear, the situation is likely quite different for career civil servants who serve in government regardless of which political party holds the White House. With respect to these individuals, who comprise the overwhelming majority of the government, the Hatch Act’s prohibitions are strictly enforced, and the penalties are stiff. But for senior political appointees, the Trump Administration exposed glaring weaknesses in the Hatch Act’s efficacy, when the Administration has little interest in adhering to conventional norms of ethics and integrity. Two types of reform are needed:

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