More Commentaries on Corruption and the Coronavirus Pandemic

Perhaps unsurprisingly, folks in the anticorruption community have started to generate a fair amount of commentary on the links between the coronavirus pandemic and corruption/anticorruption; these pieces approach the connection from various angles, including how corruption might have contributed to the outbreak and deficiencies in the response, the importance of ensuring adequate anticorruption safeguards in the various emergency measures being implemented to address both the public health crisis and the associated economic crisis, and concerns about the longer term impact on institutional integrity and checks and balances. Last week I posted links to four such commentaries. Since then, we’ve had two commentaries on the corruption-coronavirus relationship here on GAB (yesterday’s post from Sarah Steingrüber, and last week’s post from Shruti Shah and Alex Amico). Since then, I’ve come across some more, and I thought it would be useful to provide those additional links, and perhaps to try to start collecting in one place a list of commentaries on corruption and coronavirus. The new sources I’ve come across are as follows:

In case it’s helpful to readers, I may start to compile and regularly update a list of corruption-coronavirus resources. The ones I’ve got so far (including those noted above):

I’m sure there are more useful commentaries, and many more to come over the coming weeks. I’m not sure if I’ll be able to keep a comprehensive list, but I’ll do my best to provide links to the resources I’m aware of, so if you know of useful pieces on the corruption-coronavirus link, please send me a note.

Thanks everyone, and stay safe.

Tracking Corruption and Conflicts of Interest in the Trump Administration–March 2020 Update

As regular readers of this blog are aware, since May 2017 we’ve been tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

A previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

The Independence of U.S. Law Enforcement is Under Attack. Here’s What Congress Can Do About It.

The politicization of the institutions of justice, particularly those associated with criminal law enforcement, is one of the greatest threats to the rule of law and the integrity of government. Corrupt leaders in democracies and autocracies alike seek to undermine any check on their power, thus ensuring impunity for themselves and their allies, and may also try to weaponize criminal investigations to harass and discredit political opponents. For many years, most Americans viewed this sort of threat to the integrity of the institutions of justice as something that only happened abroad, or in the distant past. Not so anymore. Under the Trump Administration, the corruption and politicization of law enforcement institutions is a significant threat to American democracy.

That President Trump lacks respect for the independence and integrity of law enforcement has been evident for some time, at least since Trump fired FBI Director James Comey. (Trump dismissed Comey in part to the FBI’s investigation into potential collusion between Trump’s campaign associates and Russia during the 2016 election, and in part because Comey wouldn’t pledge his personal loyalty to the president.) In the last month, the situation appears to be getting even worse. As has been widely reported in the media, President Trump publicly criticized the Department of Justice (DOJ) for seeking a high sentence in the case of Trump associate Roger Stone; Attorney General Bill Barr claimed that President Trump didn’t issue any specific instructions regarding the case (and complained about the President’s tweeting), but Barr nonetheless recommended a much lower sentence that the DOJ’s own prosecutors had originally requested. Barr recently made the highly unusual decision to install an outside prosecutor to oversee the case against President Trump’s former National Security Advisor Michael Flynn. In another troubling move that didn’t get as much press attention, in early February Barr issued a memo saying that any FBI investigations into 2020 candidates or their campaigns would require the Attorney General’s approval.

Trump has asserted that he had the legal right, as President, to intervene in criminal cases. This is a contested claim, to say the least. Some argue that, under the U.S. Constitution, the President has ultimate control not only over general DOJ policy, but over decision-making in individual criminal prosecutions. However, others assert that this is not so, and that the Constitution actually imposes certain limits the President’s control over individual prosecutions—most importantly, that the President cannot seek to affect a criminal case out of corrupt or self-interested motivations.

Putting the legal debate to one side for now, and assuming that Congress—if not now, then at some point in the future—would like to establish new safeguards to insulate the DOJ and FBI from the corrupting influence of an unscrupulous president, what might Congress do? I suggest three steps that Congress might take:

Continue reading

Senator Warren’s Plan to Establish an Independent Task Force to Investigate Trump is a Bad, Bad Idea

Last month, Senator and Democratic presidential candidate Elizabeth Warren made a bold anticorruption commitment. She said that, if elected, she would direct the US Department of Justice to establish a special taskforce to investigate the Trump administration for violations of US anticorruption laws—including federal bribery laws, insider trading laws, and public integrity laws. She has has called on every other Democratic presidential candidate to do make the same commitment. Given the egregious corruption of the Trump administration, Senator Warren argues, a special taskforce of this kind is necessary if we are to “move forward to restore public confidence in government and deter future wrongdoing[.]”

Senator Warren—perhaps more than any other Democratic candidate—has put the fight against corruption (both narrowly and broadly defined) at the center of her campaign, and she has generated a range of proposals to combat corruption and strengthen the integrity of US political institutions. She has many good ideas. But this is not one of them. Regardless of whether members of the Trump Administration—including the President, his family members, and members of his cabinet—have engaged in illegal corrupt acts, forming a special DOJ taskforce along the lines proposed by Senator Warren would be a bad idea—bad for the Democratic party, bad for the DOJ, and, most importantly, bad for the United States.

Continue reading

Tracking Corruption and Conflicts of Interest in the Trump Administration–February 2020 Update

As regular readers of this blog are aware, since May 2017 we’ve been tracking and cataloguing credible allegations that President Trump, and his family members and close associates, have been corruptly, and possibly illegally, leveraging the power of the presidency to enrich themselves. The newest update is now available here.

A previously noted, while we try to include only those allegations that appear credible, many of the allegations that we discuss are speculative and/or contested. We also do not attempt a full analysis of the laws and regulations that may or may not have been broken if the allegations are true. (For an overview of some of the relevant federal laws and regulations that might apply to some of the alleged problematic conduct, see here.)

How Much Should We Worry That Trump’s Top Economist Is “Looking Into” Weakening the FCPA?

As regular GAB readers have likely figured out, I’m not terribly good at providing timely “hot take” reactions to news items—I’m too slow and get too distracted with other things, and by the time I weigh in on some recent development that caught my eye, I’m usually a couple of news cycles behind. So it will be with this post. But I did want to say a bit about the mini-controversy over comments a couple weeks back from Larry Kudlow, the Director of the White House National Economic Council, about the Trump Administration’s views on the Foreign Corrupt Practices Act (FCPA). For those who might have missed the reports, here’s the basic gist:

A forthcoming book about the Trump Administration includes the story (which had already been reported multiple times) that back in 2017, President Trump had vigorously complained to then-Secretary of State Rex Tillerson that the FCPA put U.S. companies at an unfair disadvantage and ought to be scrapped or drastically altered. (Tillerson, to his credit, pushed back, and no action was ultimately taken.) Several pre-release commentaries on the book focused on this anecdote (see here and here), and a couple weeks back a reporter asked Kudlow about it. Kudlow responded, “We are looking at [the FCPA], and we have heard some complaints from our companies…. I don’t want to say anything definitive policy-wise, but we are looking at it.” When pressed for details, Kudlow said, “I don’t want to say anything definitive policy-wise…. Let me wait until we get a better package [of reforms].”

Kudlow’s comments triggered a great deal of critical reaction, including statements supporting the FCPA from civil society organizations like Transparency International and the Coalition for Integrity. These statements were forceful but measured, mainly emphasizing the benefits of the FCPA. Some other media reactions were more impassioned, playing up the narrative that the Trump Administration was planning to push for the legalization of (foreign) bribery (see here and here). That latter strain in the commentary, in turn, provoked pushback from other analysts, who saw Kudlow’s remarks (and perhaps also the President’s own statements and actions in this area) as no big deal (see here and here).

My own take is somewhere in the middle. On the one hand, we shouldn’t exaggerate the significance of Kudlow’s remarks. But neither should we dismiss them as meaningless or harmless. Continue reading

Dershowitz is Wrong: What Trump Did Was a Crime

Desperate to acquit Donald Trump of impeachment charges, Senate Republicans have seized on Harvard Law Professor Alan Dershowitz’ two part defense. That conviction requires Trump to have committed a crime and that it was no crime for Trump to condition aid to Ukraine and a meeting with its president on Ukraine investigating Trump political rival Joseph Biden.  There is but one flaw in Dershowitz’ argument.  It is flat wrong.  Section 201 of title 18 of the United States Code makes it a crime for a public official to solicit a bribe.  And that is exactly what Trump did. Continue reading