Category Archives: Commentary

If You Don’t Think Trump’s Financial Conflicts of Interest Matter, Consider the Kurds

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Yesterday I posted a note regarding the update of this blog’s project on tracking the various ways in which President Trump and his family may be attempting to use the presidency for private financial gain, how the associated conflicts of interest might influence or distort U.S. policy. In light of recent events, I thought that perhaps it might be appropriate to highlight, and elaborate upon, a few items on that list that may be cause of particular concern:

  • President Trump has extensive business interests in Turkey, including a Trump Tower in Istanbul. This is not a new observation; the potential conflict of interest that this might create has been extensively documented (see here, here, and here), though in light of recent events these business connections have received renewed and intensified scrutiny (see, for example, here, here, and here). Indeed, then-candidate Trump acknowledged back in December 2015 that, “I have a little conflict of interest [in Turkey], because I have a major, major building in Istanbul.” Indeed, the Trump Towers Istanbul, which the Turkish conglomerate Dogan Holding developed, pays licensing fees to the Trump Organization. The Erdogan government can, and previously has, imposed substantial costs on Dogan Holding, and there are credible reports that the Erdogan Administration believes that this ability to put “pressure on Trump’s business partner [in Turkey]” gives the Turkish government the ability “to essentially blackmail the president.” Let that sink in for a moment.
  • In addition, entities close to the Turkish government have gotten in the habit of spending heavily at Trump properties in the U.S. Most notably, the American Turkish Council and the Turkey-U.S. Business Council have held multiple events at the Trump Hotel in D.C. (see here and here), attended by senior administration officials, with these events estimated to pay the Trump Organization well over $100,000 per event. (It’s also worth noting here that the Turkey-U.S. Business Council is headed by the founder of the consulting company that paid former national security advisor Michael Flynn $530,000 for lobbying work.)

It’s impossible to prove whether any of this directly affected President Trump’s foreign policy decisions regarding Turkish interests. But as Turkish forces continue to bombard the Kurdish forces in Northern Syria—an assault against loyal U.S. allies that was only possible because President Trump acquiesced in President Erdogan’s request/demand that U.S. forces clear out and make the attack possible—it’s hard not to wonder whether crucial U.S. allies in the fight against ISIS have been betrayed by the American Commander-in-Chief so that he can protect his financial interests.

This makes the stakes of the corruption concerns related to this presidency, including those implicated in the Emoluments Clause lawsuits brought against the administration, seem all the more pressing. The strategic and tactical wisdom of those suits, and their legal viability, is a complicated question on which my own views have evolved over time (see here, here, and here). But to characterize the issues raised by those suits as a minor distraction, as former New York Times reporter Linda Greenhouse did back at the start of the Trump presidency, is a hot take that hasn’t aged well. Here’s what Greenhouse had to say in that January 2017 Council on Foreign Relations roundtable discussion:

I think [the Emoluments Clause] lawsuit is a distraction…. I mean, it seems to me, what we need—we, as concerned citizens—need to focus on are the policy outcomes … emanating from this White House and not, you know, who’s paying the rack rate at the Trump hotel. I mean, that just doesn’t do it for me. (Laughter.) Maybe I’m missing something, but, you know, I think we need to focus on what really matters here.

Note to Ms. Greenhouse: Corruption and conflicts of interest at the highest levels of government “really matters.” Such corruption is often deeply connected to policy outcomes. I’m not sure anyone who follows these issues closely, and who cares about things like our national security policy and our treatment of vital and loyal allies, is laughing much about this now.

Modernizing Legislative Ethics: Costa Rica’s Turn?

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The conduct of parliamentarians has not escaped the anticorruption community’s attention.  Ethics codes and parliamentary immunities are everywhere being examined to ensure legislators adhere to the highest standards of conduct and can be held to account if they do not. In Costa Rica, for example, reform-minded parliamentarians recently launched an effort to determine whether their legislative ethics code and immunity rules, unchanged for several decades, need revision.

As a first step, the parliament’s in-house research center prepared a fine summary and analysis of legislative codes of conduct and member immunities in selected European and Western Hemisphere nations. To follow up, I met with reformers to discuss what issues to weigh when amending ethics codes or revising parliamentary immunities. The English PowerPoint Slides for my presentation are here, the Spanish version here. Points emphasized during the discussion: Continue reading →

In Their Push for Investigations, Did Trump’s Associates Break Ukrainian Law?

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The U.S. political news for the last month has been dominated by the explosive and fast-developing scandal involving reports that President Trump and his associates—including not only U.S. government officials but also Trump’s personal lawyer Rudy Giuliani and other private citizens—have been engaged in an ongoing behind-the-scenes campaign to pressure the Ukrainian government to pursue criminal investigations that would benefit President Trump politically. In particular, President Trump, Mr. Giuliani, and others pushed Ukraine to investigate supposed wrongdoing by Vice President Joe Biden and his son Hunter, as well as alleged Ukraine-based interference in the 2016 election on behalf of Democrats. (There is no credible evidence to support either allegation, and experts in President Trump’s administration repeatedly warned him against these unfounded conspiracy theories, to no avail.) The pressure brought to bear by President Trump and his associates on Ukrainian officials appears to have included not only general statements of interest in these allegations—allegations that the Ukrainian authorities viewed as baseless—but also included implicit or explicit threats that failure to comply would lead to various forms of retaliation, both symbolic (the refusal to invite newly-elected President Zelensky to the White House) and tangible (the withholding of desperately needed military aid).

While the main ramifications of this scandal are political rather than strictly legal, the U.S. media extensively discussed whether President Trump and his associates may have violated any U.S. laws, and commentators have suggested a number of potential legal violations. For example, asking a foreign entity for dirt on a domestic political rival might violate the provision of U.S. campaign finance law that makes it illegal to “solicit … a contribution or donation [to an election campaign] … from a foreign national,” where “contribution or donation” includes not only money but any other “thing of value.” President Trump and his associates may also have violated domestic anti-corruption law (the federal anti-bribery statute and/or the anti-extortion provision of the Hobbs Act) in conditioning the performance of an official act (such as the transfer of military aid) on the receipt of something of value from Ukrainian government officials (investigations into political rivals). Private citizens like Mr. Giuliani may have violated the Logan Act, which makes it illegal for private citizens, without the authority of the United States, to correspond with any foreign government or foreign official “with the intent to influence the measures or conduct of any foreign government …. in relation to any disputes or controversies with the United States.” And of course, the attempts to conceal all of these interactions may have amounted to obstruction of justice.

The focus in the U.S. media on whether President Trump and his associates may have violated U.S. law is entirely understandable, but seems incomplete. Strangely absent from the conversation is any mention, let alone sustained exploration, of the question whether any of President Trump’s associates may have violated Ukrainian law. At least this seems strange to me. Imagine that the situation were reversed. Suppose, for example, that a Chinese businessman, nominally a private citizen but known to have close ties to President Xi, approached the U.S. Attorney General and said something like, “We know your administration is anxious to cut a trade deal and would also like China’s assistance in addressing the North Korea situation. I’m sure President Xi could be persuaded to help you out. But you should help China out too. There’s a dissident, now an American citizen, who’s been writing a lot of damaging lies about President Xi, and he’s gaining a following in China and stirring unrest. Why don’t you publicly announce that the U.S. government is investigating him for running a ring of child prostitutes? That would really help us out.” If a story like this came out, I’m quite sure the U.S. media would be abuzz with discussions about which U.S. laws this businessman might have broken, and whether he might be prosecuted in U.S. courts if U.S. authorities managed to arrest him. But in the Ukraine case, we may have something similar—a private citizen (Giuliani) with close ties to a foreign political leader (Trump) apparently told senior political and law enforcement officials (the Ukrainian President and Prosecutor General) to pursue a bogus criminal investigation in exchange for that foreign government’s cooperation on important issues—and nobody seems to be even raising the possibility that this might violate Ukrainian law.

By the way, when I say nobody is talking about this, that apparently includes Ukrainian media and civil society. I don’t read Ukrainian and I’m by no means a Ukraine expert, but I have some friends and other contacts there, and they tell me that while the story is big news in their country, there hasn’t been any discussion about whether Trump’s associates may have violated Ukrainian law. That gives me pause, and makes me think that perhaps I’m totally off base in thinking there’s even an interesting question here. Nonetheless, at the risk of looking foolish (something that’s happened plenty of times before, I admit), I want to use this post to float this topic and see what others think. Continue reading →

Memorandum of Conversation Between Presidents Trump and Zelensky UPDATED

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America has unfortunately plunged into what is likely to be a long and divisive debate about corruption. Media reports of a conversation President Trump had July 25 with Ukrainian President Volodymyr Zelensky have swirled since allegations surfaced that President Trump had there asked President Zelensky to investigate former Vice President Biden for corruption.  In the hopes of ending speculation about what he said, earlier today President Trump released a memorandum recounting the call.  [Update: The controversy leading to release of the memorandum was sparked by reports an intelligence professional had filed a whistleblower complaint concerning President Trump and Ukraine.  That complaint, released the morning of September 2, is here].

Unfortunately, the release is likely only to fuel ever more nasty, partisan debate. One controversy certain to arise is the memorandum’s accuracy.  It is not a verbatim transcript of what the leaders said, a transcription of an audio recording of the call.  Rather, it represents what one or more staff huriedley scribbled down while the two spoke; later others reviewed it.  Did someone “scrub” more incriminating comments from the memo before its release?  Is there a better record of the call?  Will the person or persons who actually listened to the call come forward to testify to its accuracy?  Or contest the accuracy?

A more critical point of contention is whether what President Trump said during the call is on its face a crime under American law.  President Trump clearly asked President Zelensky to investigate former Vice President Biden for criminal activity.  The Federal Election Campaign Act makes it a crime for presidential candidates to receive contributions, defined as “anything of value,” from foreign citizens or governments. President Trump is a candidate for president in the 2020 election as is the former Vice President. Had Ukraine actually initiated an investigation of the Vice President, would that have been something of value under the election law?  If it would have been, was President Trump’s solicitation of such a contribution a violation of the law?  Or any other U.S. laws?

Is the fact that Mr. Biden is seeking the 2020 Democratic presidential nomination relevant to the inquiry?  That, were he to be the Democratic nominee, current polls show him decisively defeating President Trump?

Some reports allege President Trump personally held up critical military and economic assistance to the government of Ukraine, only releasing it under Congressional pressure.  That will surely be the bitterest bone of contention, for if he used a denial or delay in providing aid as leverage to force Ukraine to open an investigation, that would constitute attempted bribery under American law and thus strong grounds for impeachment and removal from office.

Was there such a threat?  As students of U.S. bribery law know, it need not have been overt; “a wink and a nod” suffices.   Expect a great deal of argument over “winks and nods,” with partisans seeing none opponents seeing them everywhere

The only bright spot in this very dismal chapter in American history is release of  memorandum of conversation.  It provides at least some uncontested facts upon which partisans can build their cases.  For those who have yet to read it, here it is Memorandum telephone conversation between Presidents Trump and Zelenskyy

Memo for SEC Chairman Clayton: Getting Other Nations to Enforce Their Antibribery Laws

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In recent remarks to the New York business community, you complain that vigorous enforcement of the Foreign Corrupt Practices Act has had little effect on corruption levels “in many areas of the world.”  The blame, you argue, lies with other nations which don’t enforce their antibribery laws. When companies from these nations seek business in a third state, they are free to, and too often do, bribe their way to commercial success. Indeed, as you explain, their repeated success provides the states where they are headquartered an incentive not to enforce their antibribery laws.

Using the prisoners’ dilemma game, you show that bribery will only be brought under control when all countries with firms that do business in foreign states agree to crack down on the payment of bribes.  And you promise that whenever you speak to counterparts in these countries, you will try to persuade them of the value of “common, cooperative enforcement strategies.”  But while the prisoners’ dilemma paradox underscores why all countries where firms that may pay bribes are located must enforce their antibribery laws, it obscures another important step in the global fight against corruption. One that the Commission can do much to advance.    Continue reading →

A Group of International Jurists and Scholars Condemns the Conviction of Former Brazilian President Lula as Unfair and Politically Motivated. A Group of Brazilian Prosecutors Defend Their Conduct, and the Conviction. Read Their Dueling Open Letters Here!

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One of the biggest stories in the anticorruption community over the last few months—and one that we’ve featured extensively here on GAB—has been the controversy swirling around the so-called “Lava Jato” (Car Wash) anticorruption operation in Brazil, in light of private text messages among the Lava Jato prosecutors, and between prosecutors and then-Judge Sérgio Moro. These messages were stolen from hacked cell phones and provided to The Intercept, which published a series of stories based on them and also shared them with other media outlines. Critics, including the Intercept journalists, have argued that these messages show unethical conduct, political bias, and due process violations by the Lava Jato prosecutors and by Judge Moro, and that this alleged misconduct demonstrates that the convictions of many of the Lava Jato defendants—most importantly, former President Lula—ought to be thrown out. Others remain unconvinced by the most serious accusations of political bias, and find many of the allegations of misconduct questionable. (For my own, somewhat evolving take on these issues, see here and here, and for a useful debate among Brazilian legal experts, see here.)

Recently, a group of international jurists and scholars weighed in, writing an open letter in which they declared their view that, in light of the evidence revealed by the leaked text messages, Lula did not receive a fair trial and was the victim of political persecution. (An English translation of the letter is available here; the original Portuguese text can be found here.) In response, a group of 20 Brazilian Federal Prosecutors wrote a reply to the open letter’s signatories, arguing that the allegations in the open letter were based on an inaccurate, incomplete, or distorted representation of the facts. The prosecutors’ response letter has not previously been published, but the prosecutors have provided me with that letter and given me permission to post a slightly-revised version here.

I have my own views on the merits of the underlying dispute, which I may go into in a later post, but here I just want to present the two letters side by side, in the hope that this will be helpful to others who have been following this controversy and are trying to better understand the complicated questions at issue. I’ll present this in point-counterpoint format, starting with the English translation of the original open letter (with some corrections to apparent errors or ambiguities in the original translation linked above), and then presenting the prosecutors’ rebuttal: Continue reading →

The Legacy of Guatemala’s Commission Against Impunity

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The most innovative experiment in the fight against corruption in memory ended last week with the closing down of Guatemala’s impunity commission.  Known as CICIG after its Spanish initials, the commission enjoyed tremendous success over its ten plus year life, securing the conviction of dozens of senior military and political leaders, forcing a sitting president and vice president to resign over corruption charges, and most importantly, showing Guatemalans their leaders were not beyond the law’s reach. The commission ceased operating Wednesday after outgoing President Jimmy Morales, whom the commission was investigating for campaign finance violations, refused to renew its mandate.

Although Guatemala’s corrupt elite finally succeeded in killing the commission, the innovation behind the commission’s success is very much alive.  Prompted by CICIG’s success, neighboring Honduras created its own CICIG-like commission, and last Friday, less than 48 hours after CICIG shut down, El Salvador’s newly-elected president established a Salvadorian version of CICIG.  Across the Atlantic, independent of developments in Central America, Ukraine is pioneering a similar ground-breaking approach to fighting corruption which Moldovans are considering copying.

What all four countries have in common is a corrupt ruling class able to stymie the enforcement of the anticorruption laws. CICIG’s creators were the first to recognize that outside pressure alone was never going to change this dynamic.  No matter how much diplomatic and economic pressure the international community brought to bear, Guatemalan investigators, prosecutors, and judges were never going to tame grand corruption by themselves.  Some were themselves corrupt or corruptible; others were honest but unwilling to cross corrupt friends and relatives, and still others feared for their life or the lives of their families if they opened a case.   The CICIG solution? Continue reading →

Making Political Parties Liable for Corruption

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When corrupt politicians are caught and convicted, they may suffer a variety of penalties, including fines and incarceration, and the government might also seize assets that were the proceeds of the wrongdoing. But punishing the individual politicians is not enough to deter wrongdoing or to compensate for the harm that the corruption causes. Moreover, even when an individual politician was the only actor who deliberately and intentionally engaged in corrupt criminal activity, that individual politician is not the only one at fault. Politicians’ decisions are affected by norms within a political party— for example, by expectations (sometimes unstated) that politicians will bring in a certain amount of money for campaign funds through graft.

For these reasons, political parties— in addition to the individual politicians— should be held liable for corrupt acts committed by their members in the course of their political activities or official duties. And such liability should attach even if the political parties’ leaders did not specifically know about or overtly endorse the corrupt acts in question.

This may seem like a radical suggestion, but in fact there are many contexts in which the law imposes so-called “vicarious liability” on organizations for acts committed by the organization’s members or agents. For example, the legal doctrine of respondeat superior (Latin for “let the master answer”) says that an employer (or other principal) can be held accountable for the wrongful actions of an employee (or agent), if the wrongful actions were within the normal “scope of employment.” Common examples include suing a hospital for the malpractice of one of its physicians or holding the government financially liable for wrongful conduct by law enforcement officers. (Although respondeat superior derives from English common law, other legal systems, such as those of Brazil and France have broadly similar concepts of vicarious liability.) Similarly, under the law of many jurisdictions, a corporation may be held liable (not only civilly, but also criminally) for acts committed by corporate employees—even if corporate management did not condone or even know about the criminal acts. These vicarious liability doctrines are important because a single employee frequently does not have the resources to redress the wrongs committed, and also because the employer often bears some responsibility for whatever the employee did, due to company culture, training, and incentive schemes. Because of this, economists point out that vicarious liability can be more socially efficient: The organization may be in a better position to detect and prevent wrongful conduct, so placing the liability on the organization can give it the appropriate incentives to take cost-justified measures to prevent the wrongful activity from occurring in the first place.

Although vicarious liability is a well-established legal principle, often used to hold employers responsible for the conduct of their employees, that concept has not yet been extended to hold political parties, as organizations, legally responsible for the corrupt acts of their members. Such an extension may seem radical, and in a sense it is, but it would be justified.

To make this case, I’ll apply the three-pronged standard that Black’s Law Dictionary lays out for respondeat superior liability to be appropriate in the employment context: (1) The individual was an employee when the occurred; (2) The employee was acting within the scope of his or her employment; and (3) The activities of the employee were a benefit to the employer. Continue reading →

Fighting Police Corruption in Nigeria: An Agenda for Comprehensive Reform

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Nigeria has a serious problem with police corruption, at all levels. At the top, senior police officials embezzle staggering sums of public funds. To take just one example, in 2012, the former Inspector General of Police, Sunday Ehindero, faced trial for embezzling 16 million Naira (approximately US$44,422). Meanwhile, at the lower levels, rank-and-file police officers regularly extort money from the public, and crime victims must pay bribes before the police will handle their cases. As a 102-page report by Human Rights Watch documented, police extortion is so institutionalized that Nigerians are more likely to encounter police demanding bribes than enforcing the law. No wonder Nigeria’s police force was ranked as the worst of those included in the 2016 World Internal Security and Police Index, and that Transparency International’s Global Corruption Barometer survey found that a staggering 69% of Nigerian citizens think that most or all police officers are corrupt.

To combat such a deep-rooted and systemic problem, bold and comprehensive reforms are needed. What would an effective reform agenda look like? Here is an outline of the most important reforms that are needed, drawing on international best practices but also tailored to Nigeria’s particular circumstances: Continue reading →

Legal Remedies for Grand Corruption

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In too many nations, ruling elites rob the populace on a grand scale, awarding friends and relatives lucrative government contracts, siphoning off revenues from oil and other natural resources, even writing checks to themselves on the central bank.  Curbing such “grand corruption” will require much: an active, informed citizenry; coordinated international action; vigorous diplomacy; shrewd application of international sanctions.

A new volume from the Open Society Justice Initiative, pictured below, describes how civil society can mobilize courts of law in the struggle.  It recounts efforts that range from using international tribunals to force government to address corruption, as the Nigerian NGO SERAP’s case before the court of Justice of the Economic Community of West African States illustrates, to bringing suit against a kleptocratic ruler in a foreign jurisdiction, as Sherpa and TI-France did against Equatorial Guinean Vice President Teodoro Obiang, to the creative use of domestic law doctrines common to most legal systems to force wrongdoers to answer for their crimes in their own courts.

Grand corruption is behind many of the globe’s most pressing problems: massive environmental degradation, gross human rights abuses, large-scale emigration. Taming it must be a priority for the global community.  Legal Remedies for Grand Corruption offers an important set of tools for doing so.

Legal Remedies for Grand Corruption