New Podcast Episode, Featuring Jack Goldsmith

A new episode of KickBack: The Global Anticorruption Podcast is now available. In this week’s episode, I interview my Harvard Law School colleague Jack Goldsmith about what the Trump Administration has taught us about the strengths and weaknesses of the U.S. system for constraining corruption, conflicts of interest, and other forms of wrongdoing by the President and senior members of the executive branch, as well as what kinds of institutional reforms and policy changes would help prevent such wrongdoing going forward. The conversation centers on Professor Goldsmith’s new book, After Trump: Reconstructing the Presidency, co-authored with Bob Bauer. Jack and I discuss the importance of norms in constraining wrongdoing and maintaining the independence of law enforcement bodies, various approaches to addressing financial conflict-of-interest risks in the context of the U.S. president, the challenges (but also the necessity) of relying on political checks, and the debates over whether to prosecute a former president, such as President Trump, for crimes allegedly committed while in office. You can find this episode here. You can also find both this episode and an archive of prior episodes at the following locations: KickBack is a collaborative effort between GAB and the ICRN. If you like it, please subscribe/follow, and tell all your friends! And if you have suggestions for voices you’d like to hear on the podcast, just send me a message and let me know.

Will Donald Trump Put Vanuatu on the Map?

Few Americans could find the Pacific island nation of Vanuatu on a map. Fewer still know anything of its constitutional jurisprudence. Donald Trump could change all that if he exercises the right he claims to have to pardon himself (here). Vanuatu is the only country whose courts have ruled on the validity of a presidential self-pardon, and the merits of their ruling would surely be fodder for editorials, op-eds, and cable television’s blabbers  learned commentators.

Vanuatu’s courts had the unprecedented case thrust upon them thanks to the action of Marcellino Pipite. Speaker of the Vanuatu legislature, in accordance with the country’s constitution he served as acting president whenever the sitting president was abroad. During one period of service a long running trial where he and 13 other parliamentarians were on trial for bribery ended in a guilty verdict against all fourteen.  Pipite then promptly exercised the president’s constitutional pardon power, excusing himself and the other defendants from any criminal wrongdoing. 

The validity of a Trump self-pardon would surely come before the Supreme Court, and it has long looked to decisions of foreign courts when deciding its cases (here). Indeed, one of the most influential justices of the 20th century, whose acolytes include the current Chief Justice, was a firm believer in looking to decisions of foreign courts for guidance when deciding constitutional issues. Nor did then Chief Justice Rehnquist limit what foreign court decisions should be examined. 

“Now that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process” (here).

Continue reading

How Grand Corruption Threatens Liberal Democratic Institutions

As regular readers may have noticed, GAB has been inactive for the past week (that is, until Rick’s post yesterday). Apologies for the lack of content – as I’m sure you can imagine, the U.S. presidential election has been consuming my attention and that of most of our regular contributors. But now that the election outcome is clear (notwithstanding President Trump’s baseless claims of election fraud and the craven complicity of his Republican Party enablers), it’s time to get back to blogging. I suspect that much (though not all) of our content over the next couple of weeks will be related to the outcome of the U.S. elections—both backward-looking evaluation of the impact of the Trump Presidency on corruption in the US and beyond, and forward-looking considerations about the anticorruption agenda under the incoming Biden Administration.

Today’s post isn’t about Trump per se, but it’s loosely inspired by both certain aspects of his presidency and his current refusal to acknowledge and accept the outcome of the election. I want to say a few words about the ways in which corruption, particularly grand corruption at the highest levels of the government, can threaten to undermine the institutions of liberal democracy (free and fair elections, formal and informal checks and balances, the rule of law, etc.). To be clear, I don’t have in mind principally the ways in which politicians might engage in corrupt conduct to help win elections (for example, vote-buying, acceptance of illegal campaign donations in exchange for favors, diverting public funds for partisan purposes, etc.), though these are of course serious and important problems. Nor do I have in mind the broader and more diffuse “institutional corruption” associated with the excessive influence of concentrated wealth, though this too is a grave concern. Rather, I want to consider how grand corruption in the highest levels of government may threaten to erode or subvert (explicitly or de facto) the basic institutional structures of liberal constitutional democracy.

Nothing of what I have to say on this topic is original; it’s all drawn from existing literature, and the arguments are likely familiar to many readers. Still, I thought it might be helpful to highlight three ways in which unchecked grand corruption may contribute to democratic backsliding: Continue reading

Trump’s New Executive Order on the Civil Service Poses a Grave Corruption Threat

Last week, President Trump issued a new Executive Order that, if implemented, could dramatically change the U.S. federal civil service—and in so doing threatens to subvert one of the most important bulwarks against corruption in all of U.S. law.

First, a quick synopsis of what the order does: Federal civil service laws are complex, but simplifying a bit, the bulk of U.S. civil service positions fall under something called the “competitive service” (also known as the “merit system”), in which hiring is based on competitive examinations administered by the Office of Personnel Management. Furthermore, those holding competitive service positions can only be removed for good cause (that is, they can’t be fired at will), and removals of such officials are reviewable by an independent commission called the Merit Systems Protection Board. Also importantly, those in the competitive service are entitled to union representation. Not all federal positions have these protections; the most senior civil servants are part of a different system (the “Senior Executive Service”), and there are a number of other relatively narrowly drawn exemptions for particular classes of jobs, typically those for which hiring by competitive examination is not practical (the “excepted service”). President Trump’s new Executive Order would shift from the competitive service to the excepted service any position that has “a confidential, policy-determining, policy-making, or policy-advocating character.” If that sounds very broad, it’s because it is. The Executive Order, if implemented, could shift tens of thousands, or possibly hundreds of thousands, of federal civil service positions out of the competitive service, thus giving the President the authority to fire the holders of those positions at will, as well as the authority to replace them with political appointees.

It’s not entirely clear whether the new order is legal. The relevant statute does contain a provision that allows the President to create “necessary exceptions” from the merit system insofar as “conditions of good government warrant.” Past presidents have exercised this authority, though to the best of my (limited) knowledge, President Trump’s Executive Order is unprecedented in both the breadth of its coverage and the thinness of its proffered justifications. That might matter, because there are a handful of prior court opinions (though none at the Supreme Court level) that suggest that the President’s authority to exempt positions from the merit system is not unlimited. It’s also not certain whether the Executive Order will ever go into effect. If Joe Biden wins next week’s election, he could reverse the order as soon as he’s inaugurated, and it’s unclear whether the Trump Administration will be able effect any actual reclassifications under the order prior to inauguration day. (The order itself calls on all agencies to prepare a preliminary list of affected positions by inauguration day, but it’s possible that agencies might move faster and reclassify some positions before then.)

For purposes of the present post, I want to put those issues aside. I also will put aside, for now, broader questions of whether the Executive Order would worsen the politicization of federal agencies or undermine their overall quality (themes I’ve explored in other work). Instead, my objective here is to elaborate on why this Executive Order, if implemented, poses such a significant corruption threat. To do that, let’s consider three forms of corruption (or corruption-facilitating practices) that the civil service merit system is meant to constrain, and the impact that this Executive Order would have on each: Continue reading

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

Back in May 2017, this blog started the project of 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.

The most significant new additions are primarily due to some very good pieces of investigative reporting.

  • The first, and more widely covered, is the New York Times reporting on several years of President Trump’s federal income tax returns, including the returns from his first two years in office. The returns shed light on many troubling aspects of the President’s finances, including the exceptionally low tax rates he has paid, evidence of multiple instances of possible fraud (still under investigation by the IRS), and his deep personal indebtedness, which plausibly raises security and other risks. The tax returns also provide significant corroborating evidence of the extent to which President Trump and his businesses have continued to earn substantial income from both private firms and foreign governments, giving rise to extraordinary conflict-of-interest concerns, as well as possible (indeed, likely) violations of the Constitution’s Emoluments Clauses.
  • Second, Dan Alexander’s new book White House, Inc.: How Donald Trump Turned the Presidency Into a Business, covers in much greater depth, and with significant original reporting, the same themes that we’ve been trying to keep track of here, namely the ways that President Trump has sought to monetize the presidency for personal financial gain. A terrific and troubling Vanity Fair article summarizes some of the most significant findings, including compelling evidence that the government of Qatar rented office space in a building 30% owned by President Trump for no apparent purpose other than to influence the U.S. government’s Middle East policy.

As 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.)

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

Back in May 2017, this blog started the project of 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.

As 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.)

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

Back in May 2017, this blog started the project of 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. As has been true for the past couple of months, most of the newest items relate to the federal government’s response to the coronavirus pandemic, including further evidence that federal bailout money has flowed to businesses owned or closely connected to President Trump’s family and cronies, and White House pressure to include in the next coronavirus relief package an unrelated $1.75 billion for the renovation of the FBI headquarters building located across the street from Trump’s D.C. hotel. One item, though, actually concerns events that took place over two years ago, but were only disclosed this past month: Apparently the U.S. Ambassador to the United Kingdom, acting at President Trump’s request, tried (unsuccessfully) to use his influence to get the British Open held at Trump’s Scotland golf course.

As 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.)

Guest Post: The Coalition for Integrity’s New Report on How To Ensure Oversight of U.S. Coronavirus Response Funds

Today’s guest post is by Shruti Shah, the President and CEO of the Coalition for Integrity, a civil society advocacy organization focused on corruption in the United States.

The U.S. Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), enacted in late March to address the economic fallout from the coronavirus pandemic, provides over $2 trillion in various forms of relief, including over $600 billion for the Paycheck Protection Program (PPP), which provides loans to small businesses, and approximately $500 billion in additional discretionary Treasury Department loans. To ensure appropriate allocation of these funds, and to reduce the risks of corruption, fraud, and other forms of misappropriation, transparency and oversight are essential. Indeed, we have already seen the perils of a lack of transparency in awarding the PPP loans. Instead of prioritizing businesses who were in danger of failing without an injection of cash, many large chains and other well-funded companies received loans. Further, there are reports that businesses owned by members of Congress received money under the program, which raises conflict of interest concerns.

Unfortunately, the Trump Administration has resisted even relatively modest measures to assure transparency and accountability in the allocation of CARES Act funds. Treasury Secretary Steven Mnuchin previously announced that the names of PPP recipients would not be made public, making the misguided claim that the identity of PPP loan recipients is the companies’ confidential and proprietary information. But taxpayer have a right to know where their money is going (a principle the U.S. vigorously applies when sending foreign aid dollars overseas). Eventually Secretary Mnuchin relented to pressure to change course, and agreed to provide information regarding PPP loans in excess of $150,000. Yet the administration’s resistance to transparency and oversight has continued, as demonstrated by alarming reports that the Treasury Department’s Office of General Counsel has issued a legal opinion claiming that the Department has no obligation to provide key information to oversight officials, including the Pandemic Response Accountability Committee (PRAC), about the CARES Act’s PPP and discretionary business loan programs.

These reports underscore the importance of keeping up the pressure on Congress and the Administration to take appropriate steps to ensure genuine transparency and accountability in the allocation of pandemic response funds. Congress in particular may need to add new legal provisions to address the flaws in the oversight system. The Coalition for Integrity recently released a new report, entitled Oversight is Better than Hindsight: Anti-Corruption Recommendations for the CARES Act, which documents the current oversight gaps in the CARES Act and presents a set of recommendations on how best to close those gaps. These recommendations include, among others: increasing appropriations for oversight bodies, enacting for-cause removal protections for Inspectors General, enhancing whistleblower protections, requiring the Federal Reserve to comply with Sunshine’s Act meeting transcript or recording requirements, and appointing a chairperson to the Congressional Oversight Commission. The report also highlights a number of measures that the Administration can and should take, including better and more effective cooperation with the oversight bodies, creating a public-facing website with detailed information on contracts awarded under the stimulus program (as was done by the Recovery Accountability and Transparency Board, which oversaw the stimulus funding enacted in response to the 2007-2008 financial crisis), and ensuring more generally that agencies are responsive rather than resistant to requests and recommendations from oversight bodies.

Effective oversight is not a partisan political issue. Misuse of stimulus money will compound the country’s collective misery at a time when millions are already suffering from the grave health and economic effects of the pandemic. In this context, insufficient public transparency and a lack of full cooperation with oversight bodies should worry us all.

 

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

Over three years ago, in May 2017, this blog started the project of 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. As was true last month, there are relatively few new items this month, in part because other issues (especially but not exclusively the coronavirus pandemic) have dominated the news. And indeed most of the notable new issues related to concerns about corruption and conflicts-of-interest in the Trump Administration relate to the coronavirus response. For example concerns that the administration has been steering relief funds to companies connected to Trump and his allies have been exacerbated by the administration’s efforts to block oversight of how these funds are spent. For example, the Treasury Department refused to share information about beneficiaries of certain business relief programs, and the Small Business Administration (SBA) has also provided federal officials and their families with a blanket exemption from the conflict-of-interest review that would otherwise apply when business owned by these individuals apply for coronavirus relief funds administered by the SBA.

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.)

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

Over three years ago, in May 2017, this blog started the project of 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. There are not too many updates this month, perhaps because the news has been dominated by other matters, including the ongoing coronavirus/COVID-19 health emergency. As noted in last month’s updates, many of the most recent stories involving potential corruption or conflicts of interest in the Trump Administration involve the administration’s response to the pandemic. This month’s update, for example, notes concerns about financial conflicts of interests for the people the administration has tapped to lead the U.S. government effort to develop a vaccine, as well as further evidence that the administration’s reluctance to insist on rigorous social distancing may be influenced by the impact on Trump hotels.

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.)