As part of his bid to secure the position of Speaker of the House, House Minority Leader Kevin McCarthy has made a series of proposals in an effort to garner party support. One notable proposal calls for the gutting of the Office of Congressional Ethics, an independent, non-partisan entity created in 2008 and tasked with reviewing allegations of misconduct against members, officers, and staff of the US House of Representatives.
In light of recent pressure to investigate some House Republicans in regards to January 6th, as well as recent high-profile allegations against incoming congressman George Santos, ethics has taken center stage. In this episode, host Craig Williams joins guest Richard W. Painter, former Chief White House ethics lawyer and the S. Walter Richey Professor of Corporate Law at University of Minnesota Law School, as they spotlight ethics and its role within Congress, SCOTUS, and the Executive branch.
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Male Speaker: If the voters care more about whether the member of Congress agrees with them on abortion, or on guns, or on taxes, or on whatever it is then they care about whether the member of Congress is ethical then we’re going to get a Congress that reflects that. I would hope that the public would take ethics more seriously. I’d say, “Well, look, they’re not going to support someone who has shabby ethics simply because I agree with them on the issues. The ethics is at least as important, if not more important, than the underlying issues.
Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network, I’m Craig Williams, coming to you from Southern California. I write a blog named “May It Please the Court,” and have two books out titled ‘How to Get Sued’ and ‘The Sled.’
Certainly, government ethics has been in the news lately given what’s happening right now in Congress, and what has happened with the Supreme Court, and what has happened with our former president. There are certainly a lot to talk about in that area. And today on Lawyer 2 Lawyer, we’re going to discuss a wide-ranging area of ethics with an expert on the topic.
We’re joined today by Richard W. Painter, the former chief White House ethics lawyer, and the S. Walter Ritchie Professor of Corporate Law at the University of Minnesota Law School. From February 2005 to July 2007, he was associate counsel to the president in the White House Counsel’s Office, serving as the chief ethics lawyer for the president, White House employees and senior nominees to Senate confirmed positions in the executive branch. His most recent book is with Peter Goldenbach titled ‘American Nero: The History of the Destruction of the Rule of Law and Why Trump is the Worst Offender.’ Welcome to the show, Richard.
Richard W. Painter: Well, thank you. Thank you for having me.
J. Craig Williams: We have an awful lot to talk about and certainly, no limit of subjects to cover, but let’s start with your background as a former chief White House ethics lawyer under President George Bush. What were your duties?
Richard W. Painter: The chief ethics lawyer in the White House is responsible for the compliance with the federal government ethics and statutes and regulations for the White House staff and also, the president’s appointees to the executive branch agencies who were confirmed by the Senate. So, everyone from the chief of staff, the White House, to the Treasury Secretary, Defense Secretary, the other secretaries, all of those people when they originally are appointed by the president or nominate for the positions. In the case of the executive branch jobs, they would discuss with the ethics lawyer, their potential conflicts of interests, financial conflicts of interests, and other issues that might give the appearance of compromising their fiduciary obligation to the government.
I’ll give you an example. For example, Henry Paulson, the Treasury Secretary came in from the top job at Goldman Sachs. He was the CEO of Goldman Sachs and had about $500 or $600 million worth of Goldman Sachs’ stock which he clearly could not keep if he was going to be the Treasury Secretary of promulgating regulations that would affect the investment banking industry, including of course, Goldman Sachs. So, I told him he had to sell the stock and we worked out an arrangement for him to do that and to put the proceeds into conflict free assets mutual funds in U.S. Treasury Securities and so forth. That’s just one of many examples of the type of project that the White House and ethics lawyer has to undertake to assure that we have a government that’s free of conflicts of interest.
J. Craig Williams: There are a lot of people who would believe that the government really doesn’t have much in terms of ethics the cynical among the population. But where the foundation of these laws? Where do they come from?
Richard W. Painter: Well, the financial conflict of interest statute is the provision, the specific provision that would prohibit the Treasury Secretary from having stock at a bank or an Agriculture Secretary from having stock in an agricultural company and so forth. This provision applies to all members of the executive branch, all United States government employees in the executive branch except, unfortunately, too, the president, the vice-president, they’re not subject to the financial conflict of interest statute. Donald Trump reminded us of that repeatedly when he was president. J, I’m special. I don’t have to follow this rule. And that’s unfortunate because then that does give the impression that the government is permeated with conflicts of interest.
If you have a president who will not abide by the rules that apply to everyone else. And unfortunately, the same provision does not apply to members of Congress. So, members of Congress can hold stock in healthcare companies while voting on health care legislation.
So, we do have ethics rules and this is an important financial conflict of interest statute, but the problem is it doesn’t apply to everybody and does not apply to the elected officials, whether it’s the president, the vice-president or members of Congress. And of course, those are the people who the public reads about the most in the press, including members of Congress or buying and selling stocks on a regular basis and that does lead to quite a bit of cynicism out there.
J. Craig Williams: Right. How would you compare the range of government ethical rules to the range of ethical rules that lawyers have to follow?
Richard W. Painter: Well, I just finished teaching a course at the University of Minnesota Law School on the ethics for government lawyers. So, I teach the students the ethics rules for government employees and then the rules for lawyers, and we compare and contrast them. And I would say the lawyers tend to be bound by stricter rules in some instances with respect to what they can do, what they can’t do, particularly after they leave government service. Lawyers are not supposed to represent private sector clients in connection with the same particular party matters, they worked on in government
Other government employees can provide some behind the scenes advice on those types of matters but are prohibited from actually lobbying back to the government on those matters. So, there’s differences of the rules for lawyers being somewhat stricter. But once again, the lawyers who get the papers a lot, including recently the election lawyers hired by our former President Donald Trump, we have some lawyers who want to violate some of these rules on a regular basis and then that brings lawyers of course into disrepute.
J. Craig Williams: Right. And who regulates? Is it the office that you were involved in that regulates the entire government, or are there individual ethical strains within each branch of government?
Richard W. Painter: As the office I worked in was the White House Ethics Lawyers Office which really just provides advice to the president, the president’s appointees. Of course, if somebody doesn’t do what we say, we would hope that the president would take appropriate action, but we did not have enforcement capacity. We were in the White House advice the president, advice the president’s staff talking to the government agencies.
With respect to enforcement, there are some rules that are the statutes that are criminal. For example, this financial conflict of interest statute is criminal. If you own Goldman Sachs stock and you are at the Treasury Department and you start to regulate or deregulate the investment banking industry, you do violate 18 United States Code 208 a criminal statute, and the Justice Department could prosecute you for that. Another example is someone in the Defense Department who is negotiating for employment with a big contractor while working on their contract. We had a big scandal about 15 years ago, someone from Boeing was doing that and gave Boeing a great big multibillion-dollar contract when negotiating for a job with them that violates the same statute. It’s a criminal statute, and that person was prosecuted.
There are other regulations that aren’t criminal statutes. For example, the gift rules, you’re not supposed to take a gift from a prohibited source that someone has tried to influence your agency. You can’t take a gift 0over $20, and you’re not supposed to use your official position to endorse products or political candidates that’s the so-called Hatch Act. Those provisions are not criminal so there’s a finding of a violation either by the United States Office of Government Ethics or the Office of Special Counsel or the various government entities that look into compliance with these ethics’ regulations and statutes. If it’s not a criminal statute though, someone’s not going to get prosecuted. What you expect is that if it’s a funny of a violation, there would be employment action, so it would be terminated. We had to terminate some people in the Bush Administration for violating ethics regulations.
But once again, that gets back to what’s the attitude at the top, because Donald Trump, when Kellyanne Conway, for example, repeatedly was violating the Hatch Act by endorsing political candidates on the White House lawn or attacking democratic candidates on the White House lawn, a clear violation of the Hatch Act using her official position to influence the outcome of an election. And the Office of Special Counsel wrote a letter to the White House saying, “Look, he’s clearly a violation. The presumptive penalty is firing.” The president didn’t do anything at all and indeed, said she was doing a great job. Well, that’s the attitude. Then we’re going to have people violating the Hatch Act or the gift rules or the other regulations with regularity.
J. Craig Williams: You would think that there would be some checks and balances there where there would be one branch of government that could enforce against the other. Is that not the case?
Richard W. Painter: Well, it should be that way.
Now, that all depends on what’s going to happen over Congress. If Congress is controlled by the president’s political party is sometimes a little bit oversight but not too much. We had some oversight of the Bush Administration when the Republicans control Congress but there was a heck a lot more with the Democrats won control of Congress in 2006 and the subpoena started flying around and then that’s where the Congressional oversight gets serious when the president’s party loses control of one of the houses or the other.
And then President Trump, the first two years, I don’t think we heard crickets from Congress. They were still investigating Hillary’s email (ph) or something. Once the Democrats got control of the House, they ratcheted up the investigations. We’ve seen some active house investigations now. I’d expect those investigations of the Trump Administration to go away but of course, the Republicans will take control of the House once they choose a speaker. That may take a while, but they probably started investigating everything going on the Biden Administration.
Meanwhile, the Senate was controlled by the Democrats may be more interested in pursuing some of the things that we still need to look into about what went wrong in the Trump Administration.
J. Craig Williams: Right. Richard, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back.
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J. Craig Williams: And welcome back to the Lawyer to Lawyer. I’m joined by former Chief White House Ethics Lawyer and Professor at the University of Minnesota Law School, Richard Painter. Right before the break, we were talking about Congress’s investigations. One that’s come up recently is George Santos. What’s happening with that and what role does the President’s Office of Ethics have to do with that investigation?
Richard W. Painter: Well, I don’t think the White House ought to get involved in that. That involves a member of Congress. If he’s committed any crimes in the United States, he ought to be prosecuted by the Department of Justice with the states. Merely lying about your background or to get elected to Congress, I don’t think is a crime but there may be other crimes. This also has some legal difficulties down at Brazil, apparently.
But I think it’s best, really, for the White House to stay out of something that involves a member of Congress. It’s a different branch of government. What’s going to happen here, I don’t know. I don’t know what else he’s lied about and whether he could be exposed to criminal charges in the United States for something else. So, I mean, a lot of this patting a resume to run for Congress or saying stuff about your mother that’s not true or I mean — it shows he’s a dishonest man. I don’t know whether that’s going to lead to any type of a criminal prosecution or is resignation from Congress, I don’t see that happening anytime soon.
J. Craig Williams: Well, it wouldn’t be the first time. I believe that in Pennsylvania, there was a congressman elected when he was in jail. So, it all comes down to what the folks in those representatives want.
What happens in the circumstance where you have, as you mentioned, shifting parties between Congress where you have the Democrats take over one session and the Republicans take over another session and there’s been some funding issues back in 2017, there were some funding issues with your office and it looks like there may be again.
Richard W. Painter: Well, it’s going to be a problem that the Congress does control the purse strings, so we’re going to have — they’re going to see what’s going to happen and what the interaction is between the presidents, the administration and particularly the House of Representatives.
We’ve got some people who want more power in the House of Representatives who are really quite extreme in their political views and quite confrontational. And so, we have yet to see where all that goes. Once again, ethics should be independent of all that. We should, I mean, they had the same approach of ethics whether it’s somebody in the Republican party or the Democratic party. The same rule should apply to everybody.
J. Craig Williams: Do the same rules apply even in the other branch of government, the Supreme Court? It sounds to me as if there are no ethical rules there.
Richard W. Painter: Well, that’s another set of problems. So, you have different rules for Congress then for the Executive Branch, different rules for the president and the vice-president then for everyone else in the Executive Branch, and they get to Supreme Court Justices. There is statute that prohibits a Justice of the court from participating in a case in which they have a financial interest or their spouse has a financial interest, or any other case of which their impartiality might be reasonably questioned.
The problem is, there is an enforcement at that statue by the court. Their Justices just make up their own mind when they’re going to recuse and when they’re not going to recuse, and that’s the problem we have with the court right now. So, it isn’t that there aren’t any rules, it’s that the rules aren’t being enforced because the Justices is a group who are not willing to hold each other accountable. They say, “well, each Justice is just going to decide this for themselves whether they need to recuse from the case and I felt quite strongly that Justice Thomas need to recuse from a number of cases having to do with the January 6 (00:16:00) given the involvement of his wife and some of what happened with that.
J. Craig Williams: Professor Painter, as we sit around the proverbial cracker barrel in the general store here. What would you propose to solve all these problems?
Richard W. Painter: Well, the different problems that have called for different solutions. With respect to the Supreme Court of the United States, I do think that Justices need to hold each other accountable and be willing to examine each other’s conflicts and not just simply leave it to the other Justices. If that doesn’t work, Congress is going to have to think about a statute that will put in place an enforcement mechanism with respect to complex on the court. With respect to members of Congress themselves though, they have to be willing to regulate their own conduct.
Congress never passed a statute to prohibit buying and selling of individual stocks by members of Congress. They talked about it. As Speaker Pelosi opposed a statute that would prohibit members of Congress from trading stocks and having financial conflicts of interest. So, here, we’ve got a Congress that for decades had said, “The executive branch employees commit a crime if they own a stock and participated in government matter that affects the stock,” but a member of Congress that say, “Okay”.
We had a number of proposals to get the members of Congress out of the trading of stocks and the financial conflicts of interest that come with that. Speaker Pelosi eventually agreed to that legislation very reluctantly but then nothing happened. They just said, “Well, we got different bills, we’re considering.” So, I think Congress needs to be held accountable and this is a problem for the Republicans and the Democrats. They talk a big game on ethics and when it comes to regulating their own conduct, they are taking it seriously.
J. Craig Williams: How do we even go about doing that? I mean, when you compare the polls that are run about the current popular issues that Congress needs to address. The economy is typically up there, maybe some defense once in a while, but I’m pretty confident that ethics is at the bottom of the barrel there.
Richard W. Painter: Well, that’s something that needs to judge, and if the voters care more about whether the member of Congress agrees with them on abortion or in guns, or on taxes or on whatever it is, then they care about whether the member of Congress is ethical. Then, we’re going to get a Congress that reflects that. I would hope that the public would take ethics more seriously. I’d say, well, “Look, you know, I’m not going to support someone who has shabby ethics simply because I agree with them on the issues.” The ethics is at least as important, if not more important, than the underlying issues.
J. Craig Williams: Let’s take a note from your book, ‘American Nero,’ why do you say that Trump is the worst defender of the structure and the rule of law?
Richard W. Painter: When I wrote and published that book in 2020, the spring of 2020 before we have the complete meltdown after he lost the election although, many of us saw that coming. Donald Trump, in many ways, was unprecedented in his approach to the laws of President and his presidential candidate. And remember, as a presidential candidate, he accused a judge of being biased against him simply because the judge was Mexican. Well, the judge was actually an American and Mexican heritage.
Donald Trump has repeatedly sought to undermine the Constitution and just recently, he talked about just getting rid of the Constitution. In other words, well, “I lost an election or I think I have an election stolen from me, we ought to just get rid of the Constitution.” He is, is not someone who believes in representing democracy in the rule of law. He believes in himself.
We’ve seen this in the way he runs his businesses, in the way he ran his White House, when he ran his campaigns and in his post-presidency. I mean, just repeated flagrant violations in the law and this business of taking classified documents on down to Mar-a-Lago, it’s just we have one more instance in which he has shown that he is not someone who gives a hoot about the law and compliance with the law.
J. Craig Williams: Well, Professor Painter, we’re going to take another quick break to hear a word from our sponsors. We’ll be right back.
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J. Craig Williams: Welcome back to Lawyer 2 Lawyer. I’m back with Professor Richard Painter from the University of Minnesota Law School. We’ve been talking about how Trump just kind of wrangled the rule of law and destroyed the Constitution. What are the consequences of that kind of behavior in terms of the future of American government? Where are we going from here?
Richard W. Painter: Well, one, Donald Trump has lowered the bar substantially when it comes to compliance with ethics. And so whenever I’ve had any criticisms of the Biden Administration and I’ve had a few with respect to conflict of interests and ethics, the answer is always, “Well, what about Donald Trump? Donald Trump is much worse.” And then the answer is, “of course.” I think President Biden is an enormous improvement over Donald Trump with respect to ethics and ethics compliance, but there’s still problems. There are issues that need to be addressed. But after Donald Trump went through there, a lot of people were exhausted if they hear about White House ethics scandals or conflicts of interest in the White House. And so there’s going to be the temptation to just simply look at the other way. And that is going to lead to a deterioration of ethics compliance across the board in both Democratic and Republican administrations.
The other even more serious problem is that Donald Trump appears to have committed a serious crime, a sedition and insurrection, after he lost the election in 2020. There’s overwhelming evidence of a conspiracy to reverse the results of the election through various means. Pressure on the Justice Department to declare the election of fraud. Pressure on the Vice-President to act illegally and declare Donald Trump the winner, even though Donald Trump had lost and even a plan to send the military into some states to redo the election. This was an attempted self-coup (00:23:07), they referred to it as Latin American countries. A self-coup by an elected head of state who decides he just wants to stick around for a while longer and is going to do everything within his power to do that and Donald Trump attempted that, self-coup in early 2021. If we don’t prosecute that, if he’s not prosecuted for that, I wouldn’t be surprised if that type of thing happens again.
J. Craig Williams: In 2015 on this particular podcast, we mentioned the fact that we thought that if Donald Trump was elected, it may very well be the last election the people get to vote in. What needs to be put into place to prevent this from happening again?
Richard W. Painter: Well, one, we need to have an independent counsel. The statute brought back. I know that the independent counsel law that we had for about 20 years after Watergate was allowed to expire by Congress, everyone was exhausted after Ken Starr’s investigation of Bill Clinton is supposed to start out with an Arkansas land deal and ended up with sex in the Oval Office. But whether we revive the independent counsel statute as it was written or make some changes to avoid a runaway independent counsel, we got to have something. We can’t have a situation where a sitting President or former President is allowed to commit crimes and not be prosecuted. The Justice Department needs to reverse its position that a sitting President cannot be prosecuted. There’s no constitutional basis for that. The Justice Department concluded that 1973 and again 1999 or 2000 and then again in 2019. And of course, the Justice Department lawyers who reach these conclusions are all appointed by the President. So it’s no surprise they come to this conclusion that a sitting President can’t be prosecuted but there’s no basis for that.
I wrote a linked article on that topic with Professor Claire Finkelstein, the University of Pennsylvania. We’ve had no authority for that proposition. No one is above the law, including a sitting President or a former President and crimes from Presidents need to be prosecuted just like crimes by everybody else.
J. Craig Williams: How do you balance what apparently is a willingness of people to elect someone who is intended on being essentially a dictator? How do you balance that against the people that need this prosecution to occur in order to put the presidency back in line?
Richard W. Painter: Well, we have criminal law for a reason. Criminal law constrains people’s conduct, whether it’s financial conflicts of interest, those rules should apply to the President, the Vice President, members of Congress, or even worse, sedition and insurrection. But we cannot have officials in our government, whether appointed or elected, who are allowed to gauge in criminal conduct and the Justice Department needs to have an independent counsel’s office that is capable of investigating the President or people close to the President who commit crimes or members of Congress who commit crimes. We cannot tolerate criminality in our government.
J. Craig Williams: Do we need a fourth branch of government, just an independent branch, the ethics and the enforcement branch?
Richard W. Painter: I would urge that we integrate ethics and enforcement in the existing three branches of governance. I mentioned in the Supreme Court that the Justices should hold each other accountable for compliance with the recusal provisions. In the Congress, they should enact a law that prohibits a member of Congress from trading individual stocks instead of having mutual funds and other broadly diversified investments like most of the rest of us. Financial conflicts of interests and Congress should not be tolerated. If someone wants to be a day trader, they should do that. Let someone else run for Congress so we could tighten up the ethics rules in Congress by an act of Congress.
And once again, the executive branch should be able to police itself with an independent counsel’s office, though the independent prosecutor embedded in the Department of Justice. Now, the Post-Watergate independent counsel statute had an arrangement where a three judge panel of the DC Circuit would appoint the special prosecutor and then oversee the special prosecutor’s office, the independent counsel’s office and that was a blending of using the judicial branch and the executive branch authority. We can revisit that idea or come up with something else, but we need to bring back checks and balances with respect to all three branches of the government. No one should hold high positions in the Judiciary, Congress or the Executive Branch and be able to say, well, I get to do anything I want.
J. Craig Williams: Do you think that there’s sufficient enforcement or sufficient bringing these issues to public light from the fourth estate, from the media? Are they doing their job?
Richard W. Painter: Yes. The media has often been very effective, sometimes slow, though, at bringing public attention to conflicts of interests and other problems in our government. Unfortunately, the media has become a lot more polarized than it was maybe 20 to 25 years ago. I remember when I was growing up waiting to watch television the ABC, CBS or NBC News and then public television news, if you want to get a little more of the in-depth intellectual type of analysis. But now the choices include Fox for the right, MSNBC for the left, and CNN vacillating in between. So you have some news media outlets that are getting their ratings up by telling the audience what they want to hear. And so you turn on Fox News, you’ll hear about every conceivable scandal in the Biden Administration, real or imaginary, and nothing about January 6, and then you’ll turn on MSNBC, you’ll hear a lot about Trump and his (00:29:03). You won’t hear anything about criticism of the Biden Administration.
Now, I’m not equating that to as I say, I think the Trump disaster was by far the most egregious situation we could probably for a long time. But if you have a media that is divided between Democrat and Republican media and people listening to TV stations and radio stations talk radio, that’s telling them just what they want to hear and that one side is good and the other side is evil that’s it’s not necessarily the type of public scrutiny by the media that we ought to be having.
J. Craig Williams: Yeah, I would agree with that. Well, Professor Painter, it looks like we just about reached the end of our program, so I’d like to invite you to share your final thoughts and provide your contact information for our listeners to reach out to you.
Richard W. Painter: Well, I continue to be optimistic that in the United States we can improve our government and elect people to office who have higher standards of ethics, and that we can encourage our Congress and our Executive Branch, our courts, to police themselves and to police other branches of government so we have appropriate checks and balances. I look forward to continuing this conversation. I could be reached at the University of Minnesota Law School. My email [email protected] and you can also follow me on Twitter RWBUSA.
J. Craig Williams: Great. It’s been a real pleasure having you on the show. Thank you very much.
Richard W. Painter: Well, thank you very much, Craig.
J. Craig Williams: Professor Painter has certainly laid out for us away to solve these problems and a significant number of ethical problems throughout the range of government, from pretty much from top to bottom. It’s difficult to get voters’ attention on a topic like this, and it certainly has been difficult to get media attention on a topic like this, given the polarity that exists between the right and the left in the media, and not many centrist style media outlets that provide this type of a review. But here on Lawyer 2 Lawyer, we do. We take these issues and today’s one is one that needs to be solved from the top to the bottom. We need more statutes. We need uniform enforcement. As voters, we need to elect people unlike George Santos and more like Jimmy Stewart. When you go to Washington, let’s do the job the right way.
Well, that’s it for today’s rant on today’s topic, let me know what you think. If you like what you heard today from Professor Painter, please rate us on Apple podcast to your favorite podcasting app. You can also visit us at the Legal Talk Network where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember when you want legal, think Lawyer 2 Lawyer.
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