Later On

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Ethics Rules Are National Security Rules

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Susan Hennessey writes at Lawfare:

The President-elect has failed to divest from his business holdings, refused to release his tax returns, and insisted that a federal anti-nepotism law won’t bar his children—who themselves retain private business interests—from serving in his White House. Days before scheduled confirmation hearings, the majority of his nominees have failed to complete statutorily-mandated ethics review. It’s for this reason that, over the weekend, former White House ethics counsel (and my Brookings colleague) Norm Eisen noted that the Trump transition is in the midst of an “ethics crisis” that is “unparalleled in modern U.S. presidential history.”

Readers may be wondering what federal ethics law and policy has to do with national security. The answer is a whole lot. Fundamentally, ethics policies governing the Executive and his cabinet are national security protections. As such, it is important that we recognize the national security implications of the incoming Administration’s positions on ethics.

Lawfare’s focus on “hard national security choices” reflects something that is often lost amidst partisan and ideological debates—these choices are difficult. There are more close calls than obvious answers. Many national security decisions reflect a delicate balance of policies, values, and strategy. This means it can be difficult to understand, especially in retrospect, why exactly one choice prevailed over another. In areas in which there are many pros and cons, it can be nearly impossible to identify the existence and effect of improper bias.

Naturally, Republicans and Democrats have different policy views and security priorities. However, both share the common understanding that a President’s decisions must be guided by the best interests of the United States as the Commander-in-Chief understands them. Ethical transparency is critical to national security because it ensures that personal financial interests are not placed before the interests of the country.

Identifying conflicts is the first step in preventing harms. Once a conflict is disclosed and identified, it might be eliminated by either ending the financial relationship or requiring individual recusals. Where that doesn’t occur, the disclosure process allows for the public and other stakeholders to assess a government official’s judgment for indications of bias. The White House and the cabinet are charged with immensely consequential decisions; not infrequently, they determine matters of life and death. The legitimacy of the office of the presidency rests on public faith that the government is placing the interests of the country first.

The demand for adequate ethics disclosure and vetting reflects the national security strategy of—as Reagan put it—“Trust, but verify.” We ask for verification that our government officials are free from undue influence because it goes to the core of basic democratic legitimacy. There should be no questions regarding the purity of the motives of individuals we authorize to place our soldiers, foreign service officers, or intelligence agents in harm’s way. Because of the necessary secrecy that surrounds a great many of these decisions, full vetting and transparency at the outset are critical to ensuring the Executive branch is, in fact, placing country first and also to maintaining basic integrity and legitimacy in the eyes of the people.

This should be the backdrop against which the ethics practices of the current transition are understood.

Recently, the Director of the Office of Government Ethics (OGE) has sent a letter to Congress warning that not all of Trump’s nominees have submitted the paperwork required for the legally-mandated ethics review. A large number of consequential—and controversial—confirmation hearings have been scheduled for Wednesday. OGE cautions this schedule does not allow sufficient time to complete reviews, especially considering the complex financial backgrounds of Trump’s “Billionaire cabinet” and the necessity for highly-detailed reviews of individuals like Exxon Mobil CEO Rex Tillerson. Confirmation hearings are traditionally not scheduled before ethics review is complete, not only because Senators must be fully informed in their votes, but also because the confirmation process serves as important leverage in ensuring full compliance. Once a nominee is Senate-confirmed, there is little incentive for the individual to fully and timely comply with ethics disclosure, especially of potentially controversial matters.

The relationship between ethics and national security is perhaps most important when it comes to the President himself. President-elect Trump’s refusal to divest himself of his business interests invites conflicts, though Trump asserts that the President cannot have legally cognizable conflicts. That is a controversial legal argument, at best, but it also fails to recognize the distinction between a legal conflict and a conflict in fact. Because of his multinational business interests, President Trump will eventually face a decision where the interests of the nation run contrary to his personal financial interests, whatever his interpretation of legislation on conflicts might be. And a Politico poll this morning found that 65% of those polled believed Trump’s business interests will “affect his decision making.”

Taken to its extreme, as a separation of powers argument, Trump’s statement that “the President can’t have a conflict of interest” under the law effectively concludes that the only constraining forces on the President are political and constitutional. But Trump’s practices thwart both political accountability and constitutional constraint. Trump’s failure to release his tax returns makes it impossible for the American people to assess whether his conflicts undermine our collective security and exert political pressure. Moreover, Trump appears inclined to dispute constitutional constraints as well.

The Constitution itself views conflicts of interest, specifically those related to foreign countries, as a national security threat. . .

Continue reading.

Written by LeisureGuy

18 May 2017 at 5:41 pm

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