//  7/28/17  //  Commentary

Here is something that shouldn’t have to be said—although that applies to lots of things these days that suddenly do seem to need saying.  There are laws, regulations, and ethical rules that govern conflicts of interest.

Trump and his surrogates talk a lot about other people’s conflicts of interest.  United States District Judge Gonzalo Curiel had “an absolute conflict” and should have recused himself from the Trump University lawsuits because he was “of Mexican heritage” and Trump had called for building a border wall.  Special Counsel Robert Mueller and his staff can’t be fair because they are “bad and conflicted.” Andrew McCabe, the acting director of the FBI, should be removed because he oversaw the Hillary Clinton email investigation after his wife had received a campaign contribution from political allies of the Clintons. (Trump said McCabe got money for his wife from Secretary Clinton, but I am trying to take Trump seriously and not literally.)  On the other hand, Jeff Sessions “should have never recused himself” from Russia probe because of his personal involvement in the matters under investigation; that was “very unfair to the President.”

Trump seems to think conflicts of interest are just in the eye of the beholder.   And, to be fair, you can almost see how someone might think that.  It’s not obvious where the line should be drawn between inappropriate conflicts of interest and the kinds of experiences and personal ties that inevitably come from not living your life in a bubble.  But that’s exactly why we have rules about conflicts of interest:  so that the determinations aren’t made on the fly, so that they are objective, so that the ideal of impartiality doesn’t become a game.

And there are a lot of rules.  There are statutes, like 18 U.S.C. § 208, which prohibits federal officials from participating in decisions in which they have particular kinds of financial interests, and 28 U.S.C. § 455, which set forth situations in which judges should recuse themselves.  There are Department of Justice regulations specifying when prosecutors and law enforcement agents shouldn’t take part in a case because of the danger of personal bias.  And there are detailed regulations governing conflict of interest by other executive branch personnel.

Here are the main things to know about all of those rules. 

First, they exist. 

Second, they are highly detailed.  Many of them have catchall clauses directing that people should recuse themselves when their objectivity could fairly be questioned, but they also have lots of much more specific provisions. 

Third, there is one very bright line drawn in virtually all of these rules: officials can’t be involved in matters in which they or their close family members have significant financial interests.  (That is why the conflicts of interest faced by Trump and his family members are so glaringly unacceptable.) 

Fourth, DOJ employees ordinarily are barred from participating in any investigation or prosecution of anyone with whom they have “a personal or political relationship.”  (That is part if the reason why Sessions had to recuse himself from the Russia investigation, even if it took him a month to figure it out.  The other part of the reason is that it was obvious from the outset that Sessions himself could be a subject of that investigation.)

Fifth and finally—and this is another thing that shouldn’t need saying—there are no rules declaring that judges, prosecutors, or any other government officials can be disqualified because of their ancestry, or because they gave donations to the wrong political party.  In fact there are federal statutes prohibiting that kind of discrimination.

What about McCabe’s involvement in the Clinton email investigation?  McCabe apparently consulted with FBI ethics officers about what steps to take when his wife ran for office.  And he didn’t have any involvement in the email investigation until he became deputy director of the FBI, which happened months after his wife lost her race and her campaign ended.  Nevertheless DOJ’s Inspector General, Michael E. Horowitz, is currently reviewing the FBI’s handling of the email investigation, and as part of that review Horowitz is looking into whether McCabe should have recused himself from “certain investigative matters.”  Even if Horowitz concludes McCabe should have recused himself—and that is by no means certain—that’s a far cry from suggesting, as Trump has, that McCabe should be replaced.  It’s hard to see what the case would be for that, if McCabe cleared his involvement with the bureau’s ethics officers.

Here’s the most important point, though.  There is a reason questions of this kind are addressed by ethics officers and reviewed, on occasion, by the Inspector General.  They are governed by written rules.  When Trump and his apologists make claims about conflicts of interest without any reference to the applicable rules, they are just shooting squid ink.


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