The Opportunity to Address Kenya’s Corruption Problem

With the Kenyan Presidential elections on the horizon in 2017, incumbent President Uhuru Kenyatta, who hopes to continue his regime, has spoken out against corruption, emphasizing that combating this widespread problem requires effort on the part of every Kenyan. In his first term, President Kenyatta had shown promising signs of staying true to his philosophy of holding everyone accountable by actually getting rid of members of the Cabinet. Yet Kenya’s recent history makes many skeptical. For over a decade, Kenyan presidents have been pledging to get corruption under control. In 2003, newly-elected President Kibaki promised to stamp out corruption in Kenya. He proceeded to enact two important pieces of legislation in his first year: the Anti-Corruption and Economic Crimes Act, which established the Kenya Anti-Corruption Commission (KACC) to investigate corruption and educate the public, and the Public Officer Act, which required all public officers to declare their wealth. Yet at the end of President Kibaki’s decade-long regime, the situation remained bleak, with corruption running rampant. Kenya’s education sector offers a particularly troublesome glimpse into the continued prevalence of the problem. A 2010 forensic audit of Kenya’s Education Sector Support Programme found that misappropriation of funds and leakages in transfer of cash and materials from the Ministry of Education to schools, as well as other types of private embezzling and mis-accounting of funds, had led to the loss of 4.2 Billion Kenya Shillings (US$55 million) that was originally intended for education. Furthermore, most of the suspected actors went unpunished; even when caught, the culprits were either transferred to new departments or at most suspended from their role.

As for President Kenyatta’s more recent efforts, the President claims that he has done his part in the anticorruption fight and is frustrated by the lack of complementary efforts by others. Yet many critics claim that President Kenyatta has not demonstrated the political will necessary to fight corruption. And some have gone further, accusing the president of suspect and excessive awarding of government contracts to companies like Safaricom without an open bidding process. Safaricom have been involved in multiple corruption scandals already, leading to suspicions of bribery. Critics have also been highlighting the fact that those close to Kenyatta seem immune from serious scrutiny for corrupt acts.

Even if we put those concerns to one side, and assume that both President Kenyatta and President Kibaki before him were acting in good faith, the numerous anticorruption initiatives undertaken by both administrations do not seem to have had much of an impact. There are a few things that Kenya’s next president—whether it is Kenyatta or someone else—could do that would go further in making progress against the corruption problem than the measures that have been adopted so far: Continue reading

Exposing Secret Offshore Bank Accounts: American Law

Kleptocrats, drug traffickers, and other big-time crooks face a common problem: How to hide their money from the authorities while retaining easy access to it.  Yesterday former Senate staffer Elise Bean described one common, low-cost, easy solution and how a recent U.S. law has made it far more difficult for American criminals to turn to it. The solution, create a corporation in another country and then open a bank account in that country in the corporation’s name, is now widely known thanks to the Panama Papers.  What Bean offered in her April 26 testimony before a Congressional committee was a step-by-step explanation of how the scheme works and the U.S. law’s success in making it far harder for Americans to take advantage of it.

Committee members peppered her with questions about the law, its effect, and ways to improve its operation.  About the only question they didn’t ask is why more countries don’t have a similar law.  That would be one for anticorruption advocates to put to legislators in countries lacking one.

Continue reading

When, If Ever, Does a Favorable Legal or Regulatory Decision Count as an “Emolument”?

Last week, I posted about the amended complaint that the Citizens for Responsibility and Ethics in Washington (CREW) filed in its lawsuit against President Trump for alleged unconstitutional acceptance of “emoluments” from various sources. My post last week, like much of the immediate commentary on the amended complaint, focused on the new plaintiffs who had joined the suit, and the extent to which their addition mitigated concerns about whether the court would have jurisdiction to hear the case. But the amended complaint was notable for other reasons. In particular, it fleshed out more details about President Trump’s alleged violations of the Foreign Emoluments Clause, and also added a new set of allegations focused on separate violations of the Domestic Emoluments Clause.

What was most striking to me about the allegations detailed in the amended complaint is that in several cases, the alleged “emolument” is not a monetary payment or a market transaction, but rather a legal or regulatory decision by a government (U.S. or foreign) that favors businesses owned by President Trump. Consider the following examples:

  • Donald Trump had long sought—and had long been denied—Chinese trademark protection for his “Trump” brand in China. Shortly after his inauguration, President Trump made statements suggesting that he might reconsider the U.S. commitment not to recognize the government of Taiwan (the so-called “One China” policy). On February 9, President Trump met with Chinese President Xi Jinping. Following the meeting, President Trump reaffirmed the U.S. commitment to the One China policy. Five days later, China granted the Trump Organization its trademarks. According to CREW, the decision to grant the trademarks was an emolument, from the government of China to President Trump.
  • The Trump Organization has several ongoing real estate development projects in Indonesia, which require permits from the government. According to the CREW complaint, if and when the government of Indonesia grants these permits, this will constitute an emolument from the government of Indonesia to President Trump.
  • Prior to the election, a company owned by President Trump signed a lease with the U.S. General Services Administration (GSA) to open what is now the Trump International Hotel at a property owned by the U.S. government. The lease agreement stated that “no … elected official of the Government of the United States … shall be admitted to any share or part of this Lease, or to any benefit that may arise therefrom.” Prior to President Trump’s inauguration, a GSA official indicated that the GSA thought that Trump would be in violation of the lease unless he fully divests from the hotel. Shortly after the inauguration, President Trump appointed a new GSA Administrator. On March 23, the GSA issued a letter taking the position that President Trump is not in violation of the lease, principally because President Trump would not receive any earnings from the hotel until he leaves office. Many ethics experts derided the GSA’s letter as unpersuasive. The CREW amended complaint goes further, arguing that the GSA’s letter is itself an “emolument” from the U.S. government to President Trump.
  • Prior to the election, the Trump company that owns the D.C. hotel applied for a “Historical Rehabilitation Tax Credit,” which, if approved, could be worth up to $32 million. The application has cleared the first two phases of the three-stage approval process—the first step before the election, the second step after the election (but before inauguration). The National Park Service must provide the third and final approval. If the Service were to grant that approval, according to the CREW complaint, this would be an unconstitutional domestic emolument to the President.

All of these alleged “emoluments” are regulatory or legal decisions by government agencies. Can such decisions count as emoluments? When or under what conditions?

These turn out to be hard legal questions, and to the best of my knowledge there’s very little existing case law or scholarly commentary. I’ll throw out some preliminary thoughts here, but this issue likely deserves more sustained and careful analysis from genuine experts (which I am not). Continue reading

Jared Kushner, Ivanka Trump, Anti-Nepotism, and Conflicts of Interest

On the same day as President Trump’s swearing in, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) released a memorandum elaborating upon why President Trump’s appointment of his son-in-law Jared Kushner as a Senior White House Advisor did not violate the federal anti-nepotism statute (5 U.S.C. § 3110). That statute prohibits a public official (including the President) from appointing or employing a relative (which the statute defines as including a son-in-law or daughter-in-law). The OLC reasoned that despite the seemingly clear prohibition in 5 U.S.C § 3110, another federal statute, 3 U.S.C. § 105(a), exempted positions in the White House Office from the anti-nepotism law. The OLC recognized this conclusion was a departure from its own precedent, but with the aid of some selective reading of legislative history, the OLC argued that lawmakers intended to allow the president “total discretion” in employment matters when it passed 3 U.S.C. § 105(a). (For non-specialists, see this primer for an explanation of these and other federal laws and regulations which could be relevant for addressing corruption in the Trump Administration.)

Somewhat predictably, the OLC memo generated debate among legal commentators (see here, here, here, and here). Yet even if the legal arguments were not entirely convincing, the OLC ended with a practical point that was echoed by many of the commentaries: given that President Trump will seek Mr. Kushner’s advice, regardless of whether he is a formal employee, it would be better for Mr. Kushner to be formally employed as a White House advisor, and thus subject to the applicable conflict-of-interest (COI) and financial disclosure rules. The same argument applies to Ivanka Trump, who also recently became an employee of the White House.

Some anticorruption advocates, myself included, were persuaded at the time by the OLC’s practical point. It would be best if the President did not make major policy decisions on the advice of radically unqualified relatives. But unfortunately, he is going to turn to them for advice. Given that baseline, we should prefer those family members occupy formal appointments, where at least they will be constrained by the COI statute and disclosure rules. However, with the benefit of hindsight, we should never have been persuaded. The COI statute and the disclosure rules turn out to be ineffective devices for preventing corruption in the Trump era. While the disclosure rules did encourage Mr. Kushner to make some divestments, they do not contain enough details to identify potential conflicts. And when there are conflicts, the COI statute is unlikely to be enforced, either because Attorney General Jeff Sessions will choose not to, or because the White House will grant a waiver.

Continue reading

“Draining the Swamp” – How President Trump is making true on his promise

“Drain the swamp” was one of Donald Trump’s battle cries in the election. Many writers on this and many other blogs have expressed deep skepticism that Trump has any interest in fighting corruption, and assert to the contrary that Trump seems poised to preside over one of the most corrupt administrations in U.S. history. But that’s not how Trump’s core supporters see things. In their view, Trump is making good on his promise and weeding out the deeply connected interests of US government officials, businesses, media, and civil society—what they view as the “corruption” of U.S. institutions. While most readers of this blog probably find that perspective baffling, it is important for all of us to understand how this constituency thinks about the problem of “corruption” and interprets the reporting on President Trump’s administration in light of that perception.

When Trump’s core supporters think about “corruption” in the U.S.—when they think about the “swamp” that Trump promised to drain—they focus on an alleged cabal of elitist, neoconservative, and liberal interests that are fighting a “war against Trump,” the democratically elected President. The term that is increasingly used in these circles to describe the “swamp” is “Deep State.” The Deep State is, according to Breitbart news, “jargon for the semi-hidden army of bureaucrats, officials, retired officials, legislators, contractors and media people who support and defend established government policies.” (The Wikipedia article on Deep State was only published on Jan 7, 2016, showing the novelty and fast rise of this term). In this worldview, the Deep State was, for example, responsible for the dismissal of national security advisor Michael Flynn. Blame for the dismissal, on this account, lies not with the actions of Michael Flynn, but with the “traitors” in government, collaborating with the corrupt mainstream media (“MSM”)—a view shared by the President himself in a tweet on Feb 15, 2016: “The real scandal here is that classified information is illegally given out by “intelligence” like candy. Very un-American!” Indeed, the view that the MSM is a major colluder in the corruption that protects the powerful and wealthy is another important feature of the worldview that seems widely shared by Trump’s ardent supporters. The list of corrupt traitors to the American people who are part of this “Deep State” includes the Democratic Party, various Republicans who criticize Trump (such as Bill Kristol, John McCain, Lindsay Graham, and after the unsuccessful attempt to repeal Obamacare Paul Ryan), and the judiciary (see here and here).

Continue reading

CREW’s New and Improved Legal Complaint Against Trump

Can anything be done about the serious corruption risks posed by Donald Trump’s dual role as President of the United States and patriarch of a vast business empire? Do any of these apparent conflicts of interest break the law? If so, is it reasonable to hope that the courts will step in?

As readers of this blog are likely aware, a group of activists, lawyers, and legal scholars have asserted that the answers to the above questions are Yes, Yes, and Yes. The fact that President Trump’s companies do business with foreign governments, the argument goes, means that the President is in violation of the U.S. Constitution’s Foreign Emoluments Clause, which prohibits any person “holding any office of profit or trust under [the United States]” from accepting, without congressional consent, “any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” Shortly after the inauguration, Citizens for Responsibility and Ethics in Washington (CREW), a nonprofit advocacy group, filed a lawsuit seeking a declaration that President Trump was in violation of the Foreign Emoluments Clause and a court order enjoining the President from further violations of that clause.

Before CREW filed its suit, I was skeptical about the prospects of a judicial remedy for this alleged Emoluments Clause violation—not because I didn’t think that President Trump was in violation of the clause (quite the opposite), but because I didn’t think it was realistic to expect that a court would be willing to order the sitting President to rearrange his financial affairs (or hold him in contempt if he didn’t). My prediction was that the court would find a way to dismiss the suit on jurisdictional grounds, or deem it a non-justiciable “political question.” And my skepticism only deepened after CREW filed its original complaint. Like many other legal analysts, I thought that CREW’s claimed basis for “standing” (which requires a direct, concrete, non-ideological injury to the plaintiff) was flimsy and would likely be rejected, and I worried that the whole enterprise would prove counterproductive, because a dismissal on jurisdictional grounds would be widely misinterpreted as a judicial rejection of the substantive claim that Donald Trump is violating the Constitution.

Two days ago, CREW filed an amended complaint, which has caused me to rethink (though not entirely abandon) my earlier skepticism. The new complaint includes a number of changes, but by far the two most important are these:

  1. The amended complaint adds two new plaintiffs to the suit—an association of restaurants and a Washington, D.C. event planner—whose claims to have standing are much stronger than CREW’s.
  2. The amended complaint also adds new substantive allegations that President Trump is not only violating the Foreign Emoluments Clause, but is also violating a separate provision of the Constitution, the so-called “Domestic Emoluments Clause,” which states that the President shall receive a fixed salary, which cannot be changed during his term, and that the President “shall not receive within that period any other emolument from the United States, or any [state].”

In a future post I may have something to say about the Domestic Emoluments Clause issue, but for now I want to focus on how much difference the addition of the two new plaintiffs makes to the likelihood that the lawsuit will survive a motion to dismiss on jurisdictional grounds. My initial take is that it makes a big difference—the case for standing, under current doctrine, is now much stronger than it was before—but some problems still remain. Continue reading

Three Valuable Additions to the Anticorruption Literature

March was a great month for the anticorruption community: two books and one report appeared that, in contrast to much that is published on corruption and related topics, are useful, insightful, and worthy of a careful read.

1) There is now no better introduction to the field of corruption studies than Ray Fisman and Miriam Golden’s Corruption: What Everyone Needs to Know, published in late March by Oxford University Press in an affordable paperback edition.  In nine readable chapters the authors summarize the main issues – what corruption is, why it is so harmful, the challenge of measurement, the forces behind it, and most importantly what can be done to reduce it.  The only group of readers that the book will disappoint is opportunistic politicians looking for quick and easy fixes.  There are, the authors remind readers at several points, “no easy fixes for a problem that been around for millennia.”

Theirs is not a counsel of despair, however.  Policy reforms can make a difference: higher salaries for public servants, the creation of an independent anticorruption agency, a “big bang” approach like Georgia’s wholesale dismissal of traffic police are three that are featured.  But such reforms can backfire, they warn, without complementary changes in the larger environment.  Wage hikes must be accompanied by more stringent enforcement of antibribery laws else the result may simply be to raise the bribe price. Quoting Gabe Kuris’ ISS study, they caution that anticorruption agencies will succeed only if they have built “alliances with citizens, state institutions, media, civil society, and international actors.”  With perhaps the disastrous results from disbanding the Iraqi army in mind, they discuss what could have befallen Georgia had its traffic police been let go under different circumstances.

Specialists will find nits to pick.  John Githongo never chaired the Kenyan anticorruption agency (he ran a unit in the President’s office); corporate interests are not the only ones that capture government agencies (labor and environmental interests can exercise undue influence over policy too); Switzerland long ago scrapped anonymous, numbered accounts.  But these are quibbles in what otherwise has to rank as the best one volume introduction to corruption and what can be done to fight it.

2) In the decade plus since my former World Bank colleagues Joel Hellman, Geraint Jones, and Daniel Kaufmann first advanced the idea that in some countries the forces of corruption are so powerful that they can be said to have “captured” the state’s policymaking machinery, the notion of “state capture” has been booted around academic and policymaking circles. Unfortunately not always with the greatest definitional or analytical clarity with the result that there is now a confusing mass of writing on what it means for a state to be captured and how it can be freed.  Thanks to the OECD, those looking for a source that makes sense of the welter of material on state capture now have a single volume to consult.  Preventing Policy Capture: Integrity in Public Decision Making, available here (free to read online, $20 to download) continues the high standards one has come to expect from OECD publications on governance, nicely synthesizing the massive literature Hellman and colleagues have inspired.

Just as Fisman and Golden warn that isolated interventions will not reduce corruption, the OECD authors stress that freeing a state from the bonds of corrupt interests requires a set of “actions that complement and reinforce each other.”  If anything, anti-capture policies are even trickier to implement than anticorruption policies, for, as the OECD warns, if not carefully constructed they can compromise fundamental democratic values of free expression and the right to petition government.  One of the volumes many strengths is that it never loses sight of these risks.

3) Perhaps the most salutary result of the international anticorruption movement is the spotlight it has cast on the massive theft of resources from poor countries by corrupt leaders.  There is no better guide to what has been dubbed “kleptocracy” than Cambridge Professor J.C. Sharman’s The Despots Guide to Wealth Management, just out in an inexpensive paperback edition from Cornell University Press.  The author of the leading text why tiny offshore jurisdictions were for so long able to help tax evaders and drug lords hide their money, Professor Sharman explains why kleptocracy — a practice wealthy nations once tolerated and one still facilitated by their banks, lawyers, and accountants — is now widely condemned.

Despite the sea change in attitudes, and accompanying changes in domestic and international law, however, corrupt money still gushes out of developing countries. Wealth Management is laden with pithy summaries explaining why efforts to halt the flow have failed. (Sanctioning international banks in the hopes concerns about a loss of reputation will deter them doesn’t work since “they appear to have little reputation left to lose.”)  Most importantly, Professor Sharman offers realistic recommendations for ending what has now become the most visible, and detestable, consequence of grand corruption.