The Wallace Global Fund fired Morgan Lewis for advising Donald Trump on the mechanisms for controlling conflict of interest. It scorned the firm’s legal analysis and its dismissal of counsel was meant to keep the Fund from being “complicit” in the President’s disregard of legal and ethical norms. The Fund has concluded that the president’s actions are, on the ethical merits, clearly indefensible–case closed. So the Fund deems the lawyers culpable for putting their names and reputations behind what it has concluded is beyond the pale.
There is a different way of looking at what may exceptional about the Trump ethics regime, and it does not require agreement on specific violations of ethical obligations, or arguments about the viability of specific legal theories, or the questioning of the professional standards followed by law firms or lawyers. It is more concerned with a change, for the worse, in the institutional safeguards for keeping government service under public ethical controls. The problem could be thought of as a sort of privatization of public ethics.
This privatizing element has been introduced through certain features of the Trump business interests, and even more, the issues presented by the family members that the President would like to have by his side. Some special arrangement is generally thought necessary to allow the president to have the counsel and company of his daughter and son in-law. They will take unpaid positions within the White House, but in form, as recently announced, they will be treated as employees subject to conflict of interest rules that apply to all others.
Both Mr. Kushner and Ms. Trump have complex continuing interests in their businesses, and they argue that there is no fair or practical way to dispose of many of them. They will maintain and retain enough connection to their business to monitor, with the advice of counsel, potential problems that may arise. A similar mechanism was established by the president to administer his “trust,” run by his sons, and advised by a special ethics counsel selected from private practice. His trust also has added a compliance adviser, a long time lawyer and official in the Trump business.
All of this occurs “in the family,” and this is largely how it is reported. But it does not have to end there in future administrations. Another president may feel free to appoint “volunteer” senior White House advisers without family ties but with similarly far-flung and complex business interests. Paid their dollar a year, they would maintain much of their financial interests, perhaps excluding the simplest conflicts presented by easily disposable stock holdings. They would also set up with their lawyers a private arrangement for the management of any conflicts.
While the White House Counsel and Office of Government Ethics might review the basic structure, its operation from day to day depends on a day to day flow of information and ethical decision-making that is necessarily within the control and responsibility of the volunteer-employees and their counsel. The government lawyers can know only what they are told, and can advise only on questions raised with them. The set-up is limited in transparency.
Commenting on Mr. Trump’s own conflict-of-interest ethics controls, A.B. Culvahouse, former White House Counsel to President Reagan, stated that the arrangement was “plowing new ground.” As hard as it is to see how this is now working, what has come to public light will not put concerns to rest. In Mr. Trump’s case, the sons are advising him, they say, on the profitability of the business. It seems that the president, retaining his interest in his business, remains interested in his business, and he has the continuing right to draw funds from it. And it would fair to ask whether the ethics adviser or compliance officer have passed on the practice that the President has developed of spending time and convening meetings at his various properties and giving them, one has to assume, all the business benefits of that exposure. Any ongoing engagement of the President’s daughter and son-in law in the management of their interests, even to address conflicts with the assistance of counsel, takes place outside public view, and it is not known to which degree government ethics officials are involved.
These questions are beginning to fade as answers are not forthcoming, or as attention turns to other issues. This is how precedents are set. The next time around, it may be just the way business is done, and not passed off as a family matter.