Many commentators in the United States—including a number of GAB contributors—have lamented the lack of robust anticorruption investigations at the state level, and have advocated the creation or strengthening of state-level anticorruption commissions (see, for example, here, here, and here). While there is much to be said for these proposals, the existing commentary often overlooks the fact that states already have a powerful institution with the potential to perform many of the functions that reformers hope to vest with the state commissions. That institution is the state grand jury.
When most people hear the phrase “grand jury,” if they know the term at all, they probably imagine a scene from some TV crime show where a prosecutor endeavors to persuade a group of average citizens to indict someone that the prosecutor believes has committed a crime. And indeed in most states, grand juries’ principal function is to determine whether a state prosecutor has “probable cause” to put a defendant on trial. (After the trial beings, a different jury—the “petit jury”—decides whether the defendant is actually guilty.) But grand juries don’t just evaluate the prosecutor’s evidence at the indictment stage. Grand juries also have robust investigatory powers of their own. Like some state anticorruption commissions, state grand juries have the authority to subpoena documents or other tangible things. But unlike state anticorruption commissions, state grand juries can also compel witnesses to testify, and can hold those who refuse in contempt. (Indeed, while witnesses can invoke their constitutional right against self-incrimination to refuse to testify in a criminal trial, no such right exists in a grand jury investigation.) Moreover, grand juries can not only return criminal indictments (their more familiar function), but grand juries can also issue public reports about unethical and unsavory behavior.
If wielded properly, these immense powers could help unearth evidence of wrongdoing. Moreover, grand juries’ investigative powers may be especially valuable in cases involving corruption. While it might seem radical to propose that grand juries exercise these existing but largely moribund powers to assume the role of anticorruption watchdog, this would in fact be a return to one of the grand juries’ traditional functions.
The newly installed government of the Democratic Republic of the Congo has taken a major, and for the DRC, unprecedented step in the fight against corruption. At their September 18 swearing in ceremony, each member signed an “Acte d’Engagement,” a one-page letter to Prime Minster Ilunga Ilunkamba containing an ethics code each agrees to observe. Although the code’s provisions are nothing out of the ordinary, what is out of the ordinary is that ministers of the DRC would publicly commit to them. This represents an important milestone in the effort of the Prime Minister and President Félix Tshisekedi to arrest the corruption that has plagued the mineral-rich but desperately poor nation for so long.
Even more out of the ordinary, the signers pledge to resign if they are found to violate any code provision. Most unusually, they agree to post a copy of the letter in their office and to circulate it to their immediate staff and the civil servant they oversee. The one-page letter with code is written in non-technical, easily understandable prose. Ministers cannot excuse a violation by claiming they did not understand it, and its wide circulation and posting in the ministers’ offices increases the chances they will be held to it.
There is no reason why the governments of other nations where corruption is endemic should not follow the DRC’s lead. They too should require leaders to publicly commit to a strong ethics code and to post a copy of the code and their pledge to honor it on the wall of their office. This will remind them and all who meet with them of that commitment.
A translation of the commitment letter/code that each DRC government member signed follows. Continue reading →
For the sixth year running the Organization for Economic and Cooperation is hosting a two-day conference on ethics and corruption. This year’s theme is how corruption has eroded trust in government and is helping advance what Secretary General Gurria termed in his opening remarks the three destructive “isms” haunting the world today: populism, nationalism, and protectionism.
The organization’s members are 35 of the world’ s richest nations (all save Russia and the PRC), and despite extraordinary levels of wealth by any historical measure, and recent upbeat economic news, citizens across the 35 have soured on their governments. Trust in government across the 35 is at a record low while cynicism and distrust in elected leaders is at an all-time high, and though the Secretary General put much of the blame for the current funk on the 2008 economic crisis and the still uneven and unbalanced recovery, corruption, he stressed, has done its part. Revelations of wrong-doing at the highest levels of government coupled with the petty corruption that frustrates the delivery of basic government services has only deepened citizens’ suspicions in their government. If OECD member states are to win back citizens’ confidence, and avoid those destructive “isms,” they cannot, he argued, ignore the corruption question.
For those unable to fund a trip to Paris or with a sponsor or client willing to foot the bill, the conference home page with the agenda is here. Four things I found useful on day one: Continue reading →
[Kaitlin Beachprovided helpful research and thoughtful contributions to this post.]
Since Donald Trump’s election, critics have asserted that his presidency presents unprecedented risks of corruption, cronyism, and conflict of interest. Many argue that President Trump and members of his administration are already engaging in conduct that is not only unethical, but also illegal. Because it can be hard for non-specialists to keep track of the myriad rules that have been referenced in the context, this post provides a brief, non-technical overview of the most important federal laws and regulations that are designed to prevent corruption, conflict-of-interest, and self-dealing in the U.S. government, focusing on those that have been most widely or most creatively discussed in relation to fighting a purportedly corrupt Trump administration.
A potlatch is a competition once found among tribes in the American Northwest. Contestants took turns destroying things of value to them to demonstrate their wealth and status in the community, and overtime the combat escalated until eventually the only way to win was to reduce oneself to material ruin. In a 1964 essay Stanford Law School Dean Bayless Manning, a member of the President’s Advisory Panel on Ethics and Conflicts of Interest in Government, compared the then current race in Washington, D.C., to condemn conflicts of interest to a potlatch – with similar unfortunate consequences. Given the conflict of interest mania now gripping Washington, D.C., the time seems right to resurrect Dean Manning’s largely forgotten classic on the perils of ethics overstretch. “The Purity Potlatch: An Essay on Conflicts of Interest, American Government, and Moral Escalation” appeared in volume 24 of the Federal Bar Journal. Available nowhere online, excerpts follow. The emphasis are as in the original:
“Something dramatic has happened of late to the subject of conflicts of interest. This formerly obscure topic has become front page news and Big Politics. . . .
“The significant feature of these nation-rocking exposes is that, so far as is known from the record, none of the men involved actually did anything demonstrably injurious to the public treasury or the public interest. None figured in an alleged Teapot Dome or anything resembling it. The charge was only that the combination of their economics circumstances and their offices did not look just right. The worst allegation that could be made against them was that they held an economic interest or received gifts that might, upon a certain set of assumptions about the conduct of their office and about human nature generally, tempt them in the future to act contrarily to the public interest in certain limited situations. Continue reading →
Seeing the President-elect as a champion of ethics would be one way to interpret the comedic events of the past 36 hours in the upside-down world of what was once termed the capital of the free world. The comedy opened Monday evening, January 2, with Republican members of the incoming House of Representatives voting (in secret and without prior notice) to curb the Office of Congressional Ethics, the independent body which hears allegations of ethical transgressions by House members and staff. The vote met with immediate and sustained outrage by citizens, media commentators, and government reform groups. Criticism was also voiced from a source many found unlikely. In a pair of messages (here and here) Tuesday morning President-elect Trump tweeted that:
“With all that Congress has to work on, do they really have to make the weakening of the Independent Ethics Watchdog, as unfair as it may be, their number one act and priority. Focus on tax reform, healthcare and so many other things of far greater importance! #DTS”
Within hours of the Trump tweets, the comedy ended. Chastened, on-the-defensive, with even their allies questioning their political competence, House Republicans reversed course and left the congressional ethics office’s powers intact. Continue reading →
Volkswagen’s diesel emissions cheat has cost the company dearly. Last October, Volkswagen reached a US$16.5 billion dollar settlement with the US government, and the value of Volkswagen’s stock today is worth about 50% of what it was before the scandal – a US$60 billion drop in the company’s valuation. Criminal charges against several senior managers, including chairman Hans Dieter Poetsch, are still pending. Countless customers are furious, while many employees fear for their jobs as Volkswagen scrambles to cut its costs. (Some background on the scandal, as well as a regularly updated timeline, can be found here.)
What started as a “simple cheat” became a slippery slope for the whole company. Volkswagen failed to create a culture of corporate integrity; the institutional checks and balances that are supposed to prevent something like this from happening were purposefully or ignorantly subverted, and the company created all the wrong incentives. As Alison Taylor has argued on this blog, these are the perfect ingredients for a corrupt corporate culture.
Who to blame for this mess (and, similarly, many other corporate messes)? Just as “a fish rots from the head down,” a company’s board of directors must take responsibility for creating or allowing a toxic corporate culture that permits cheating and other unethical and illegal behavior. Continue reading →
President-elect Trump tweeted early November 30 “that legal documents are being crafted which take me completely out of business operations.” Will this suffice to resolve concerns about the potential conflicts of interest that could arise during his presidency? While the answers of the anti- and pro-Trump camps are predictable (a heated, vitriolic “no” and an equally heated, vitriolic “yes” respectively) for others the answer will turn on two issues:
1) What conduct they understand the conflict of interest rules prohibit, and
2) Whether they think Trump’s removing himself “completely” from his businesses is enough to prevent it.
Media coverage about conflict of interest since Trump’s election has been so colored by opposition to Trump generally that those trying to fairly evaluate Trump’s plan are likely confused about both issues. Herewith a guide to both to help fair-minded citizens evaluate the Trump plan. Continue reading →
Attacking President-elect Trump on the basis of his expected violations of the conflict of interest laws provides the anti-Trump crowd a convenient outlet to vent their anger and frustration over his election. But as the attacks continue to pop up in op-eds and on cable and be smuggled into straight news reporting, those launching them might bear two things in mind: the attacks will surely further divide the nation and, even worse for the anti-Trumpers, make it more likely Trump will pursue the policies he espouses that they so adamantly reject.
As explained here last week, the conflict of interest laws do not apply to presidents; suggestions that Trump should follow them even though he is exempt make no sense. Continue reading →
Readers of this blog know its commitment to publishing the most reliable, up-to-the-minute data on corruption, and it is in this spirit I urge a revision to the famous line Shakespeare has Dick the Butcher speak in Henry VI, part 2: “First thing we do, let’s kill all the lawyers.” New research shows not all lawyers are, as Shakespeare and his audience supposed, venal, greedy, and unethical. When lawyers in 13 New York law firms were approached to help an African official squirrel away funds that screamed “we are the proceeds of corruption,” two passed up the chance to earn the fat fee dangled before them, one on the spot and one after thinking things through. Advanced econometric analysis thus reveals that only 85 percent (11/13) of those queried were willing to consider assisting an obviously corrupt African politician. So if the same percentage of Elizabethan-era lawyers were as upright as today’s New York attorneys, Dick would not have needed to off all lawyers to reach the utopia envisioned in Act IV, Scene II. Just 85 percent. Continue reading →