The President And Ethics Laws: Who Watches The Watchmen?

The question of whether ethics laws apply to the president has been a topic of debate, especially during the Trump administration. While the president is subject to certain ethics laws and constitutional provisions, there are also exemptions and loopholes. The president is exempt from many of the ethics rules that apply to Cabinet members and other government employees. However, they are still subject to criminal laws such as anti-bribery and illegal gratuity statutes, as well as federal election laws. The Ethics in Government Act of 1978 requires the president to disclose financial and employment information, but loopholes in these rules can make it easier to avoid full disclosure. Ultimately, the enforcement of ethics laws against the president can be challenging due to the lack of a clear authority and the complex interplay between different government branches and agencies.

The Emoluments Clause

> "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State."

The purpose of the Emoluments Clause is to ensure that the country's leaders are not improperly influenced by gift-giving, which was a common practice among European rulers and diplomats at the time of the Constitution's drafting. The clause covers any kind of profit, benefit, or advantage, not just gifts of money or valuable objects. For example, it would prohibit a federal officeholder from receiving special consideration in business transactions with a foreign state.

The domestic emoluments clause, found in Article II, Section 1, Paragraph 7 of the Constitution, prohibits the president from receiving any "Emolument" from the federal government or the states beyond "a Compensation" for his "Services" as chief executive.

Nearly all scholars agree that the Emoluments Clause applies to all federal officeholders, including the president. This interpretation is supported by historical records, such as the remarks of Edmund Jennings Randolph, one of the Framers, who stated at the Virginia ratifying convention that the clause protected against the president receiving emoluments from foreign powers.

The Ethics in Government Act of 1978

This title mandates that members of Congress, congressional officers, employees with a certain compensation level, and candidates for Congress must file annual financial disclosure reports. These reports include information such as sources of income, gifts, reimbursements, property holdings, liabilities, and certain financial interests of a spouse or dependent. The reports are filed with the Clerk of the House of Representatives or the Secretary of the Senate and are made available to the public. This title also authorizes the Attorney General to take civil action against individuals who falsify or fail to file the required information.

This title mandates financial disclosure reports from members of the judiciary, including Supreme Court justices, federal court judges, and presidential nominees for judicial offices. It establishes a Judicial Ethics Committee to receive and review these reports, monitor compliance, make them available to the public, and ascertain possible violations of conflict of interest laws. The Attorney General is authorized to take civil action for non-compliance or falsification, similar to the previous titles.

This title extends the period of prohibition on appearances before an agency by former federal employees, officials, or uniformed services personnel from one to two years. It prohibits formal and informal contacts with their former agency for a period of one year after leaving employment. Certain exemptions are provided for scientific personnel and individuals designated by the Director of the Office of Government Ethics.

The role of the Department of Justice

The DOJ is headed by the Attorney General, who is the chief law enforcement officer of the federal government and reports directly to the President. The Attorney General represents the United States in legal matters, advises the President and the heads of the executive departments of the government, and occasionally appears in person before the Supreme Court. The DOJ also includes eight divisions of lawyers who represent the U.S. federal government in litigation: the Criminal, Civil, Antitrust, Tax, Civil Rights, Environment and Natural Resources, National Security, and Justice Management Divisions.

The DOJ is the central agency for the enforcement of federal laws and is the world's largest law office. It has a budget of approximately $25 billion and maintains field offices in all states and territories across the United States, as well as in more than 50 countries around the world. The DOJ works to earn the public's trust by following the facts and the law wherever they may lead, without prejudice or improper influence, and its employees adhere to the highest standards of ethical behaviour.

The role of Congress

Congress plays a crucial role in overseeing and enforcing ethical standards for the President and other high-ranking officials. While the President is exempt from many ethics rules that apply to other federal employees, Congress has the power to hold the President accountable through investigations, disciplinary action, and impeachment proceedings if necessary.

One of the primary ways Congress can exercise its oversight role is through its subpoena power. Any congressional committee can subpoena executive branch documents and officials, allowing them to investigate the actions of the President and the executive branch as a whole. Committees such as the House Oversight Committee and the Senate Homeland Security and Governmental Affairs Committee often take the lead on ethics-related inquiries. These committees can examine potential conflicts of interest, financial disclosures, and other relevant information to ensure the President is upholding ethical standards.

In addition to investigative powers, Congress also has disciplinary powers, including the ability to pursue criminal charges or impeachment proceedings if evidence suggests the President has broken the law. For example, federal laws such as those against bribery and receiving benefits from foreign countries are enforced by Congress, which can take action if the President is found to be in violation.

Furthermore, Congress is responsible for passing legislation to strengthen and clarify ethical standards for the President and other government officials. This includes closing loopholes in existing laws, bolstering disclosure requirements, and improving the administration and enforcement of federal ethics laws. For instance, the Ethics in Government Act of 1978, passed by Congress in the wake of the Watergate scandal, created mandatory public disclosure of financial and employment history for public officials, restricted lobbying efforts by former officials, and established the Office of Government Ethics to oversee the federal ethics program.

Overall, while the President may be exempt from certain ethics laws, Congress plays a critical role in holding the President accountable and ensuring ethical standards are upheld through its investigative powers, disciplinary actions, and legislative responsibilities.

The role of the Office of Government Ethics

The United States Office of Government Ethics (OGE) is an independent agency within the executive branch of the U.S. Federal Government. It was formed in the wake of the Watergate scandal, which brought to light issues of ethics in government. The OGE is responsible for directing executive branch policies relating to conflicts of interest among federal executive branch officers and employees.

The main duties of the OGE include:

• Establishing the standards of conduct for the executive branch
• Issuing rules and regulations interpreting the criminal conflict of interest restrictions
• Establishing the framework for the public and confidential financial disclosure systems for executive branch employees
• Developing training and education programs for use by executive branch ethics officials and employees
• Ensuring that individual agency ethics programs are functioning properly by setting the requirements for them, supporting them, and reviewing them

The OGE has relatively little enforcement authority and no real independence from the president. It also lacks the resources to carry out its duties effectively, with fewer than 80 employees and a $16 million budget.

Despite these limitations, the OGE plays a crucial role in promoting ethical behaviour among government officials. It reviews financial disclosures of Cabinet appointees and negotiates ethics agreements to avoid the influence of personal financial holdings on policy decisions. The OGE also oversees an ethics program that vets thousands of federal employees across agencies to ensure compliance with various conflict-of-interest rules.

In the case of President Donald Trump, the OGE raised concerns about his decision to maintain ownership of his businesses while serving as president, which broke with the norms set by his predecessors. The OGE also faced challenges due to the slow submission of ethics documents by the Trump administration and the complexity of the financial holdings involved.

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