The Ethical Take: Big Kahuna Edition

Published: November 14, 2018

By Jim Lichtman
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In the olden days (of 2017), I used to say, “every week”; ridiculous! Every DAY, Trump and/or his administration face some new potential legal or ethical issue. Here’s the latest rundown:

Interior Secretary Ryan Zinke –

According to Citizens for Responsibility and Ethics in Washington (CREW), “…Zinke has racked up 17 federal investigations into his behavior since becoming Secretary.”

“…the Interior Department’s inspector general,” The New York Times writes (Oct. 31), “had referred one of the inquiries to the Justice Department, a potential prelude to a criminal investigation.”

Ethical Take: Even Trump has concerns about Zinke.

Was He Fired, or Did He Resign? –

An undated letter from Attorney General Jeff Sessions begins: “At your request, I am submitting my resignation.”

Trump’s chief of staff, John Kelly, (Trump only fires people on TV), told Sessions to hit the door at DOJ, and by the way, we need your office today.

The E.T.: … fired! Joining the notables who have departed: Sec. of State Rex Tillerson; HHS Sec. Tom Price; EPA Sec. Scott Pruitt; UN Amb. Nikki Haley (resigned but will finish out the year); WH Comm. Dir. Mike Dubke; WH Comm. Dir. Hope Hicks; WH Comm. Dir. Anthony Scaramucci; WH Press Sec. Sean Spicer; WH Chief Econ. Adviser Gary Cohn; WH Staff Sec. Rob Porter; WH Counsel Don McGahn; National Security Advisor Michael Flynn; National Security Advisor H.R. McMaster; WH Chief of Staff Reince Priebus; Presidential Advisor Steve Bannon. Ryan Zinke and Homeland Sec. Kirstjen Nielsen… on the bubble.

Who the H*## is Matthew Whitaker? –

Whitaker has been Sessions chief of staff since September 2017. However, his appointment by Trump to the position of acting attorney general has already generated controversy due primarily to Whitaker’s many public comments against special counsel Robert Mueller. Trump and the White House see no problem elevating Whitaker. Two attorneys see it differently.

Neal K. Katyal and George T. Conway III (presidential advisor Kellyanne Conway’s husband) challenged the constitutionality of naming Whitaker in a New York Times opinion (Nov. 8).

The attorneys cite “the Appointments Clause of the Constitution, Article II, Section 2, Clause 2. Under that provision, so-called principal officers of the United States must be nominated by the president and confirmed by the Senate under its ‘Advice and Consent’ powers.”

Their argument stemmed from a challenge brought by law professor Steven Calabresi who “…argued that [Robert] Mueller was a principal officer because he is exercising significant law enforcement authority and that since he has not been confirmed by the Senate, his appointment was unconstitutional. As one of us argued at the time,” Katyal and Conway write, “he was wrong. What makes an officer a principal officer is that he or she reports only to the president. No one else in government is that person’s boss. But Mr. Mueller reports to Rod Rosenstein, the deputy attorney general. So, Mr. Mueller is what is known as an inferior officer, not a principal one, and his appointment without Senate approval was valid. …

“A principal officer must be confirmed by the Senate, and that has a very significant consequence today. It means that Mr. Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.”

In a nine-page letter (Nov. 8), detailing their argument, addressed to Assistant Attorney General Lee J. Lofthus, CREW writes, “To ensure the integrity of the Department of Justice and its continuing commitment to the rule of law, Acting Attorney General Matthew G. Whitaker must promptly recuse from all Department of Justice investigations of President Donald J. Trump as well as the President’s current and former associates, businesses, and campaign.”

E.T.: Whitaker has agreed to consult with the Department’s ethics office.

Trump Knew about Payoffs –

According to a report in the Wall Street Journal (Nov. 9), federal authorities have evidence of trump’s direct role in payoffs to porn star Stormy Daniels and playmate Karen McDougal that may violate campaign finance laws.

E.T.: Who Trump sleeps with is between him and his confessor. However, if he violated campaign finance laws, he must be held to account. Not to worry, Trump has a “get out of jail” card from the Republican Senate.

Emoluments Suit –

Earlier this year, CREW announced a legal suit against Trump for violation of the Emoluments clause of the Constitution.

What is an emolument?

Article I, Section 9, of the Constitution: “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.”

NPR reports (Nov. 3), “Federal District Judge Peter Messitte denied Trump’s request for a stay and ordered the two parties to begin the discovery process.

“The ruling means the plaintiffs, the attorneys general of Maryland and Washington, D.C., have some power to obtain documents from the president and his business ventures. Trump notably has not released his tax returns and has maintained ownership of his businesses.”

E.T.: The Big Kahuna has a lot on his plate. Maybe we’ll finally get a look behind the curtain and see where he really gets all those payments… but wait, there’s more.

CNN Reporter’s White House Pass Pulled –

Persisting in asking hard questions of any public official is the job of journalists. However, CNN’s Jim Acosta’s persistence irritates the president, so the reporter was banished from the kingdom. Trump later threatened that there “could be others also” who get their credentials revoked.

As Supreme Court Justice William Brennan wrote – in a 9-0 decision in favor of The New York Times v. Sullivan (1964) – our nation is founded on the “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Ethical Take.:  A free and independent press is a vital component of democracy. Thousands of journalists serve the First Amendment and the American people through one mission: Report the truth without fear or favor. Why? – Sen. Joseph McCarthy, the My Lai Massacre and cover-up, The Pentagon Papers, Watergate and cover-up.


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