Category Archives: conflict of interest laws

ELB Book Corner: Bob Bauer: “The Impeachment Process in an Era of Polarization and Expanded Presidential Immunity”

conflict of interest laws, ELB Book Corner

I’m pleased to welcome Bob Bauer to the ELB Book Corner, writing about his new book, The Unraveling. Here is the third of three guest posts:

In a chapter about impeachment in The Unraveling, I single out the late Kenneth Starr for criticism of his performance as independent counsel in the Clinton case. He took on a constitutional controversy laden with unusual elements of run-away partisanship—an impeachment directed at a president’s conduct of his personal life— and made it, on that score, far worse.  The chapter detailed the ways in which Starr failed to exercise the particular ethical responsibilities of a lawyers in an exquisitely sensitive public role.

But my larger concern is the well noted increase in partisan appetite for impeachments when a loss at the polls is unthinkable.Those concerned about this trend may have all the more cause for worry now that the Supreme Court has established significant levels of presidential immunity from criminal prosecution. Even before that decision, immunity figured into the pressures for impeachment: Because presidents could claim immunity from prosecution while office, impeachment was the only source of formal accountability in that period. With the zone of immunity now expanded, advocates for an impeachment can dismiss the suggestion that Congress should stay its hand, respecting the voters’ choice and leaving the president to answer to the legal system after his or her term ends. The President may now get a pass for a wide range of alleged misconduct, and, of course, Congress must impeach and convict before considering a vote on disqualification from holding future office.

For this reason, I make the case that the House and Senate should formally revise the rules governing impeachment processes. While there are some standing rules and often-cited standards, these are largely made up on the fly in each individual case of impeachment. This is a mistake, as it only encourages the engineering of different processes with the actual or perceived purpose of enhancing the prospect of one result or the other. A bipartisan institutional reform exercise while there is no particular impeachment pending could focus attention on what an impeachment process most appropriately should be– with no president at imminent risk of risk benefitting or suffering from the particular choices made. 

Among the issues that could be addressed:  Is the Senate obligated to hold the trial if the House impeaches? Must it at least consider a Motion to Dismiss—or can it just ignore the House action? On what schedule must the House transmit articles of impeachment? What are precisely the “due process“rights of a president defending against an impeachment in a House or a Senate trial?  None of these questions need to be answered so definitively that every conceivable procedural issue is settled before a particular impeachment. There is, however, a major advantage, in substance and credibility, to a “veil of ignorance” establishment of clear rules.

In the book, I note the motion to dismiss filed by the late Senator Robert Byrd to end Senate consideration of the Clinton impeachment. The constitutional remedy of impeachment had deteriorated into spectacle, including “hallway press conferences and [a] battle of press releases that are contributing to the division of our parties and our nation.” As a well-respected institutionalist, Byrd rightly warned that the impeachment process was inflicting more damage on the democracy than the conduct for which President Clinton was impeached.

The House and Senate could collaborate on bipartisan internal reforms to address these dangers of an impeachment process unconstrained by settled standards and processes, overly vulnerable to the worst partisan opportunism. Action may be unlikely, but the cost of inaction is no less predictable.

Share this:

“NC Justice Berger won’t be recused from major cases involving his father, court rules”

conflict of interest laws

News and Observer:

North Carolina Supreme Court Justice Phil Berger Jr. will not be recused from two high-profile cases involving his father, the Republican Senate leader. The court’s Republican justices denied Democratic Gov. Roy Cooper’s motion requesting Berger Jr.’s recusal on Friday, writing that the Senate leader was involved in the case in an official capacity only — not a personal one.

“We believe that Justice Berger can and will execute his responsibilities in this case fairly and impartially,” the majority wrote. Rather than deciding on recusal himself, Berger Jr. referred the motion to the full court to consider. In a dissenting opinion, the court’s two Democrats noted that the Code of Judicial Conduct makes no distinction between family members acting in their official capacity and personal capacity in its rules around recusal. Justice Allison Riggs, who authored the dissent, noted that Justice Berger previously refused to recuse himself in another case involving his father that challenged the state’s voter ID law.

“To achieve the desired outcome in this case, members of this Court who typically ascribe to a strict textualist philosophy are eager to add words to the Code of Judicial Conduct,” Riggs wrote. “… I suspect the reason we have not changed these rules is simple — the optics of overhauling existing ethics standards to accommodate Justice Berger and Senator Berger are problematic, to put it mildly.” In both cases, Cooper is challenging laws passed by the General Assembly that strip him of his appointments to various boards and commissions. One of those laws, which is currently blocked by a lower court’s order, would drastically restructure state and local election boards and give all appointments to legislative leaders — including Berger Jr.’s father, Senate leader Phil Berger, who is named as a defendant in both cases.

Share this:

ELB Book Corner: Bob Bauer:  “A Common Question about ‘The Unraveling’”

conflict of interest laws, ELB Book Corner, political polarization

I’m pleased to welcome Bob Bauer to the ELB Book Corner, writing about his new book, The Unraveling. Here is the first of three guest posts:

Since the publication of my book, The Unraveling, I have been asked why, during this norm crushing experience with Donald Trump, I chose to ground my reflection in a fair degree of professional self-criticism. The objection goes something like this: whatever second thoughts you have had on positions taken or advice given, your sins and those associated with Trump’s brand of politics must be weighed on different scales.

I note, first, that my self-examination only goes so far. There are controversial positions I’ve taken, say, on money and politics, which have not changed radically over the years. I continue to believe that continued reliance on the post-Watergate model of campaign finance regulation is mistaken (and futile).

However, on other topics, it seems to me that if we are going to have a productive debate about reviving the norms of democratic politics the conversation should open with some show of humility. When will-to- win becomes overpowering, because the issues are deemed existential, ends are soon supposed to justify the means. Both parties can fall into this trap, though one of them—Trump’s—sees this not as a trap but as the portal through which to march to political dominance.

I suggest in the book that norms are upheld or weakened as a result of individual choices that all those in political or government positions make. A norm is an abstraction, made meaningful by what an actor chooses to do in particular circumstances. How actors make these choices defines an ethical politics, and a politics devoid of ethics is not really “democratic politics.” I share the view expressed by the political theorist Bernard Crick in his “defense of politics: that “to act morally in politics is to consider the results of one’s actions,” and that “however convinced [men and women are] of the rightness of their party, they must compromise its claims to the needs of some electoral and legal framework.”

I offer the example from early in my career of the Democrats making a run at bringing the Internal Revenue Service into the business of containing “negative” campaign speech for which then-available tax credits would be denied. They did not care for negative campaigning, in large part because they did not care for the success of these attacks in the Republican resurgence culminating in the 1980 election of Ronald Reagan. Putting the IRS in the middle of judging the ‘negative” quality of campaign speech was a dreadful idea. The proposal went nowhere but my advocacy of this proposal reflected ethical tone deafness. And— with qualifications—the same goes for the use of the RICO statute to undermine then majority whip Tom DeLay’s plans to spend massive “soft” money to retain Republican control of the body.

To address these issues forthrightly is not by any means to engage in “moral equivalency.” I am second to none in my disgust with Trumpist political attacks on democratic norms and institutions. But the book looks to the common ground that Democrats and Republicans can find to resist the worst of what this kind of politics, and an unethical politics more generally, portends for the health of the democracy. In The Unraveling, I address urgently needed short-term and longer-term responses to the currently troubled state of democratic self-governance, including presidential abuse of power, the controversies over the Supreme Court, the rise in the resort to the impeachment process, and the challenge to professional, nonpartisan election administration. I describe my involvement in those projects, working with any and all who share these concerns, while remaining a very committed Democrat.

Share this:

“Biden set to announce support for major Supreme Court changes”

conflict of interest laws, Supreme Court

Washington Post:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans….

The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.

Share this:

ProPublica Report on Judicial Recusal

conflict of interest laws, court decisions

Released today:

A ProPublica analysis found a lack of transparency regarding conflicts plagues federal and state courts where loose rules, inconsistent enforcement and creative interpretations of guidelines routinely allow judges to withhold potential conflicts from the parties before them.

In an examination of more than 1,200 federal judges and state supreme court justices, ProPublica, in partnership with student journalists at Boston University, found dozens of judges, including both Republican and Democratic appointees, who chose not to recuse when facing potential appearances of impropriety involving familial financial connections. Ethics experts say that the judges’ interpretation of the rules may often lie within the letter of the law, but at the expense of its spirit.

Share this:

“Justices Thomas and Alito Ignored Calls for Recusal in Jan. 6 Case”

conflict of interest laws, Supreme Court

NYT:

Justices Clarence Thomas and Samuel A. Alito Jr., rejecting calls for their disqualification, participated in the case, siding with a member of the mob that stormed the Capitol on Jan. 6, 2021.

Experts in legal ethics have said that the activities of the justices’ wives raised serious questions about their impartiality.

Virginia Thomas, known as Ginny, helped shape the effort to overturn the 2020 election. “Biden and the Left is attempting the greatest Heist of our History,” Ms. Thomas wrote in a text message to Mark Meadows, President Donald J. Trump’s chief of staff, during the fraught weeks between the 2020 presidential election and the Jan. 6 attack.

Justice Thomas has not given a public explanation for remaining on the case, and he has taken part in other cases arising from the election and the 2021 attack. But he recused himself in October from a case concerning John Eastman, a conservative lawyer who had advised Mr. Trump. Justice Thomas, for whom Mr. Eastman had served as a law clerk, gave no reasons for his decision to disqualify himself from that case.

Justice Alito has been more forthcoming. He explained why he would not recuse from the case in a letter to Democratic lawmakers in May after The New York Times reported that flags that have been used to support the “Stop the Steal” movement had been displayed at his homes in Virginia and New Jersey.

The justice said his wife, Martha-Ann, was responsible. “My wife is fond of flying flags,” he wrote. “I am not. She was solely responsible for having flagpoles put up at our residence and our vacation home and has flown a wide variety of flags over the years.”…

Share this:

“Investors, worried they can’t beat lawmakers in stock market, copy them instead”

conflict of interest laws, legislation and legislatures

WaPo:

Members of Congress hear a lot of secrets: classified briefings, confidential previews of pending legislation and the private opinions of constituents, regulators, corporate executives and world leaders.

Watchdog groups have long believed that somelawmakers use that information to make money in the stock market. Now a loose alliance of traders, analysts and advocates is trying to let Americans mimic the trades elected officials make, offering tongue-in-cheek financial products — including one named for former House speaker Nancy Pelosi (D-Calif.) and another that refers to Sen. Ted Cruz (R-Tex.) — that track purchases and sales after lawmakers disclose them.

Collectively, these investment vehicles haveattracted hundreds of millions of dollars.At times, congressional investigatorshave used them to keep tabs on suspicious trading activity, according to people familiar with these investigations who spoke on the condition of anonymity because they are not authorized to speak to the media.

Share this:

“Experts Question Alito’s Failure to Recuse Himself in Flag Controversy”

chicanery, conflict of interest laws, Supreme Court

Adam Liptak for the NYT:

Supreme Court justices seldom give reasons for their decisions to recuse themselves. Even rarer are explanations for deciding to participate in a case when they have been accused of conflicts of interest.

Justice Samuel A. Alito Jr. is an exception. He seems positively eager to explain himself. But whether his explanation has helped or hurt his cause is open to question.

On Wednesday, Justice Alito wrote letters to Democratic lawmakers saying he was not only permitted but also obligated to sit on two cases arising from the Jan. 6, 2021, attack on the Capitol despite controversies over flags displayed outside his houses associated with the “Stop the Steal” movement.

Experts in legal ethics said they welcomed Justice Alito’s decision to explain himself. But they were not persuaded by the reasoning in his letters, which said the flags had been flown by his wife and so did not require him to step aside in the pending cases, on whether former President Donald J. Trump is immune from prosecution and on whether a federal obstruction law covers participants in the Jan. 6 assault….

Amanda Frost, a law professor at the University of Virginia, said the quality of the reasoning in Justice Alito’s letters had shortcomings.

“I agree that Justice Alito’s wife has a First Amendment right to express her views,” Professor Frost said. “But if she does so on their shared property, in a way that would lead a reasonable person to question his impartiality, then he should respond by recusing himself.”

Professor Frost added that her conclusion would be no different had the controversy involved a liberal member of the court like Justice Ruth Bader Ginsburg, who died in 2020. “I would say the same,” she said, “if Justice Ginsburg’s husband had placed a ‘Gore won’ sign on the lawn of their shared home while the Bush-Gore election was being contested in the courts.”

Share this:

WTF Justice Alito?

conflict of interest laws, Supreme Court

NYT:

Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr., another provocative symbol was displayed at his vacation house in New Jersey, according to interviews and photographs.

This time, it was the “Appeal to Heaven” flag, which, like the inverted U.S. flag, was carried by rioters at the Capitol on Jan. 6, 2021. Also known as the Pine Tree flag, it dates back to the Revolutionary War, but largely fell into obscurity until recent years and is now a symbol of support for former President Donald J. Trump, for a religious strand of the “Stop the Steal” campaign and for a push to remake American government in Christian terms.

Three photographs obtained by The New York Times, along with accounts from a half-dozen neighbors and passers-by, show that the Appeal to Heaven flag was aloft at the Alito home on Long Beach Island in July and September of 2023. A Google street view image from late August also shows the flag.

The photographs, each taken independently, are from four different dates. It is not clear whether the flag was displayed continuously during those months or how long it was flown overall.

An “Appeal to Heaven” flag and other flags flying outside a beach house owned by Justice Samuel A. Alito Jr.
A Google street view photo taken in August 2023 shows the flag flying at the Alitos’ house.

Justice Alito declined to respond to questions about the beach house flag, including what it was intended to convey and how it comported with his obligations as a justice. The court also declined to respond….

In coming weeks, the justices will rule on that case, which could scuttle some of the charges against Mr. Trump, as well as on whether he is immune from prosecution for actions he took while president. Their decisions will shape how accountable he can be held for trying to overturn the last presidential election and his chances at regaining the White House in the next one.

The disclosure about the new flag is troubling, several ethics experts said in interviews, because it ties Justice Alito more closely to symbols associated with the attempted election subversion on Jan. 6, and because it was displayed as the obstruction case was first coming for consideration by the court.

Judges are not supposed to give any impression of bias, yet the flag could be seen as telegraphing the Alitos’ views — and at a time when the justices were on the cusp of adopting a new ethics code. “We all have our biases, but the good judge fights against them,” said Charles Geyh, a law professor at Indiana University Bloomington. “When a judge celebrates his predispositions by hoisting them on a flag,” he added, “that’s deeply disturbing.”

I was uncertain if the initial revelation of the first flag merited Justice Alito’s recusal in the first case, but I now believe he must recuse in the Trump immunity and related cases. His impartiality could be reasonably questioned here. There’s no blaming it on his spouse this time in any credible way.

Share this:

“Time to Close the Hatch Act’s Escape Hatch”

conflict of interest laws, ethics investigations

Hampton Dellinger for Politico:

Since the Hatch Act was passed in 1939, government workers have faced strict limits on their political activity. And rightly so. Federal employees should be on the job for the public good, not partisan ends. Violators can be reprimanded, fined and even barred from federal service.

While the Hatch Act is broad on paper, a loophole has emerged in practice: senior White House personnel (including assistants to the president and others deemed commissioned officers) aren’t being subjected to the law’s full enforcement. Today, that changes.

I was recently nominated and confirmed to lead the Office of Special Counsel, the independent agency responsible for enforcing the Hatch Act for millions of federal workers. And after a careful review of past and present policies, I’m updating my agency’s enforcement approach to put an end to such differential treatment.

OSC brings Hatch Act violations to the Merit Systems Protection Board, an independent and quasi-judicial body, and the board can impose a range of sanctions if it determines the rules were broken.

But, in the past, OSC has declined to bring MSPB cases against White House officials. Instead, OSC has left the question of whether punishment should be imposed to the sole discretion of the president. This distinction creates separate and not automatically equal systems of accountability for violators, one where an independent adjudicator (the MSPB) can impose sanctions and another where it is left to the president to dole out — or not — any consequences….

And while I have great respect for the Department of Justice’s Office of Legal Counsel, I do not believe (as my office has suggested in recent years) that a 1978 DOJ opinion assessing draft legislation should be considered sufficient support for OSC to unequivocally exempt White House staff from the same Hatch Act enforcement regime other federal workers face.

As a result, I am announcing that prior OSC statements that White House officials cannot face Hatch Act enforcement in the same way other federal civilian employees do are no longer in effect. It is time to close the Hatch Act’s escape hatch….

Share this:

“Prosecutor leaves Georgia election case against Trump after relationship with district attorney”

conflict of interest laws

AP:

A special prosecutor who had a romantic relationship with Fulton County District Attorney Fani Willis formally withdrew Friday from the Georgia election interference case against Donald Trump after a judge ruled one of them had to leave for the case to move forward.

Attorney Nathan Wade’s resignation allows Willis to remain on the most sprawling of the four criminal cases against the presumptive Republican nominee in the 2024 presidential election.

But the long-term damage to the public perception of the prosecution remains unclear, particularly in light of Trump’s relentless barrage of attacks on the pair who pledged to hold Trump accountable but found their own actions under a public microscope…

Share this:

“Judge rules Fulton DA Fani Willis can stay — if Wade steps aside”

conflict of interest laws

AJC:

A Fulton County judge on Friday gave District Attorney Fani Willis a stark choice: Either recuse yourself and your office from the election interference case against Donald Trump or cut ties with your lead prosecutor and former lover.

The decision would allow Willis, if special prosecutor Nathan Wade withdraws, to continue prosecuting the case against the presumptive Republican nominee for president and his 14 remaining co-defendants. It also could resolve a disqualification motion that has upended the monumental case for the last two-plus months, turning it into a spectacle with salacious allegations of misconduct against one of the most recognizable DAs in the nation.

“Whether this case ends in convictions, acquittals or something in between, the result should be one that instills confidence in the process,” Fulton Superior Court Judge Scott McAfee wrote. “… Any distractions that detract from these goals, if remedial under the law, should be proportionally addressed.”

In a 23-page order, McAfee said he by no means condones Willis’ “tremendous lapse in judgment” for having the relationship with Wade, who has billed more than $728,000 in legal fees that he used to help pay for cruises and vacations he took with the district attorney in 2022 and 2023.

However, in a major finding, the judge said the defense had “failed to meet their burden of proving that the district attorney acquired an actual conflict of interest in this case through her personal relationship and recurring travels with her lead prosecutor.” If McAfee had found otherwise, he would have had to disqualify Willis and her office from the case.

But McAfee did find that “the established record now highlights a significant appearance of impropriety that infects the current structure of the prosecution team – an appearance that must be removed through the state’s selection of one of two options.”…

Share this:

Poor Disclosure from Some State Supreme Courts

conflict of interest laws, judicial elections

Fix the Court release:

State supreme court justices have the power to impact federal elections, redistricting, immigration, reproductive rights, gun rights and more, and yet most states are suppressing information about their top judges — either by making it difficult to obtain financial disclosure reports or requiring little to no information to be disclosed — in a way that shields them from accountability, according to a new report released today by Fix the Court.

In short, 24 of the 48 the states that require annual judicial disclosures don’t post their justices’ reports online, and 30 require less information to be disclosed than what the federal judiciary requires…..

Share this: