TRUMP’S DANGEROUS NORMALIZATION EFFORT AND THE ROLE OF THE LEGAL PROFESSION

Norman Eisen and Richard W. Painter were, respectively, chief White House ethics lawyers for Presidents Barack Obama and George W. Bush. For months before the election, they wrote and spoke frequently about the dangers associated with Donald Trump’s disdain for the established norm of releasing presidential candidates’ tax returns. They warned about unprecedented business conflicts of interest that Trump would face as president. Since the election, they’ve urged divestiture, liquidation, and a blind trust as the only effective ways to resolve those conflicts.

The editorial boards of The New York Times and The Wall Street Journal agree with Eisen and Painter. But on December 10, Edwin D. Williamson at Sullivan & Cromwell penned an op-ed for the Journal that tries to let Trump off the conflicts hook.

“If I were advising Trump,” Williamson writes, “I would strongly urge him to pledge that as president he will make no decision for the primary purpose of benefiting any family financial interest, and any decision involving an entity that has a Trump business relationship will be transparent so questions of favoritism can be scrutinized.”

That’s Williamson’s proposed remedy: a pledge of fidelity, coupled with a promise of transparency from a serial liar who still refuses to release his tax returns. Would he accept that undertaking from opposing counsel to settle a case that Williamson’s client was sure to win? Seasoned litigant Trump sure wouldn’t.

But here’s Williamson’s most dangerous line: “I do not see how he can effectively promise more, and I do not believe more is needed.” He then spins frivolous false equivalence arguments that give all attorneys a bad name.

Excuses, Excuses, Excuses

Williamson’s first hypothetical scenario is the sale of Trump’s interests through an initial public offering. Because the president can appoint a majority of the SEC commissioners, Williamson believes that Trump would be trading one conflict (his business interests) for another (his influence over the SEC as it supervised Trump’ IPO).

Williamson’s second liquidation scenario is a leveraged buyout. Because it would require lending by Trump-regulated banks, that would create a new conflict, too, he writes.

Such sophistry is suffocating. Neither option creates a conflict of interest approaching the magnitude of those that will accompany Trump’s continued ownership of his businesses after Inauguration Day. In fact, Williamson final argument proves it.

Self-Refuting

“[T]he biggest problem of divestiture is that the value of Trump businesses is significantly dependent on, and inextricably tied to, the Trump name,” Williamson writes.

Precisely. The prospect of enriching Trump and his family personally is what entices others — foreign and domestic — to patronize Trump businesses in an effort to curry the President’s favor. It’s already happening at Trump’s new Washington, D.C. hotel.

In a joint letter to The New York Times, Harvard Law School Professor Laurence Tribe and Mark Green, New York City’s first public advocate, explain:

“The Constitution’s Emoluments Clause is unambiguous. It forbids an American president from accepting anything of value from a foreign entity, without congressional consent, because that would open the door to bribery or extortion.”

Tribe and Green continue, “The only way for President-elect Donald Trump to cure this problem would be an arms-length sale by a public trustee, not piecemeal judgments after Jan. 20 about the thousands of possible winks and nods between foreign leaders and the new administration.”

Professional Responsibility in the Age of Trump

Lawyers understand the relationship between preserving vital democratic norms and protecting democracy. Zealous advocacy is one thing. But attorneys err when they offer feeble justifications that aid and abet Trump’s insidious effort to normalize behavior that is not only abnormal, but also wrong. The bad news is that the effort is having an impact. Consider the number of commentators who now start from the false premise, “Well, he can’t sell his businesses….”

Why not?

As Tribe and Green observe, “Mr. Trump chose to put himself in this situation and cannot now act aggrieved, nor is there a too-big-to-sell exemption in the Constitution; if anything, the larger the potential for conflict, the more urgent a sell-off.”

“There’s no precedent,” proclaim Trump’s conflict of interest apologists.

Actually, plenty of analogous precedent resides in the conflict of interest rules applicable to all practicing attorneys. No lawyer can serve two conflicting masters simultaneously, regardless of good faith efforts to be fair and honest to both. And the appearance of conflict is equally debilitating.

Williamson dismisses such appearances as “impossible to avoid” because “almost any decision Mr. Trump makes as president will have an effect — good or bad — on his business interests.” But that argument demonstrates again why Trump must sell those interests, as Eisen, Painter, Tribe, Green, and other attorneys across the political spectrum urge.

Donald Trump isn’t a lawyer, but he will have fiduciary duties to the most important client in the world: the United States of America. At a minimum, all attorneys should hold him to the standard that the country deserves.

Don’t Give Up

Columnist Charles M. Blow offers this creed that’s worth remembering every day:

“To have a president for whom we don’t know the extent of his financial entanglements with other countries — in part because he has refused to release his tax returns — is not normal.

“To have a president with massive, inherent conflicts of interest between continued ownership of his company and the running of our country is not normal.

“Presidents may be exempt from conflict of interest provisions in the law, but exemption from legal jeopardy is not an exemption from fact or defilement of the primacy of a president’s fiduciary duty to empire above enterprise…

“[H]istory will judge kindly those who continued to shout, from the rooftops, through their own weariness and against the corrosive drift of conformity: This is not normal!”

Lawyers should be leading the charge to those rooftops, not blocking the path.

THE ROBERTS COURT — PLAYING THE LONG GAME

It seems that everyone is trying to divine insights into how Chief Justice John Roberts is shaping the United States Supreme Court’s legacy. On July 2, The New York Times and The Wall Street Journal devoted front-page stories to that subject. On July 7, the Times published a review of Uncertain Justice, a book about the Roberts Court by pre-eminent constitutional scholar and Harvard Law Professor, Laurence Tribe, an unapologetic liberal.

While reading the review of Professor Tribe’s book, I recalled a January 2012 interview during which Stephen Colbert asked him about Roberts, who had taken his constitutional law course.

Tribe quipped, “I’m not sure how much of what I taught actually made a difference.”

All this is of special interest to me because Chief Justice Roberts was my law school classmate, and because I was in Professor Tribe’s course, too.

Activism v. Restraint

The Times story offers the Court’s unanimous rulings as a sign that the Chief Justice is sensitive to accusations that it has become an extension of the country’s paralyzing political polarization. The WSJ made a similar point in quoting from Roberts’ 2005 confirmation hearings on the subject of “judicial modesty”: “You don’t obviously compromise strongly held views, but you do have to be open to the considered views of your colleagues.”

Neither newspaper mentions other things that Roberts said during his confirmation hearings, including this: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.”

Conservatives bemoaning “activist judges” loved that analogy. For trial judges ruling on the admissibility of evidence, it may be reasonable. For a Chief Justice of the United States Supreme Court, it bears little resemblance to reality, as Roberts’ own actions on the Court have proven.

Tactics v. Strategy

In assessing Chief Justice Roberts’ approach, it’s worth distinguishing strategy from tactics. He is playing a long game. Although already on the Court for nine years, he could serve for twenty more. Tactically, he can move slowly in his desired direction. Over time, his strategic vision becomes more evident.

Jeff Shesol, the Times reviewer of Professor Tribe’s book, suggests that some elements of that vision are already in place, including the elimination of meaningful campaign finance limits, reduced regulation of economic activity, and erosion of long-established protections in civil rights, consumer rights, and criminal procedure.

The Journal quotes Cornell Law Professor Michael Dorf’s example of the interplay between tactics and strategy. In 2009, the Chief Justice issued an opinion “that upheld the toughest parts of the Voting RIghts Act of 1965, while opening new exemptions from federal oversight…. Four years later, Chief Justice Roberts, joined by his fellow four conservatives, built on the groundwork he had laid in 2009 by sweeping aside Voting Rights Act oversight that had been in place since 1965. All four liberals dissented.” (Professor Dorf chides the liberal justices as “naive” in lending Roberts their votes periodically, but what’s their second choice?)

More to Come

The Roberts Court has laid other foundational elements that could have a dramatic impact on American society. For example, most liberals were relieved when Chief Justice Roberts provided the deciding fifth vote upholding the Affordable Care Act (“Obamacare”). He found common ground with the majority in the federal government’s taxing power.

But on a key issue, he joined the dissent, which resurrected a moribund position on another critical constitutional source of the federal government’s power. As Jeff Shesol observes in his review of Uncertain Justice, Roberts joined a dissent that “took the most constrictive view of federal power under the commerce clause in 75 years, since the New Deal-era court got out of the business of overseeing economic policy.” In other words, the stage is set for a five-man Supreme Court majority to reverse a longstanding jurisprudential justification for federal legislation.

Professor Tribe Was Wrong

Whether the Roberts Court produces positive or negative outcomes for the country depends, of course, on an individual’s political views. The incontrovertible point is that, notwithstanding Professor Tribe’s offhand comment to Stephen Colbert, Chief Justice Roberts learned quite a bit from the course that we took.

Here are a few of the lessons: characterizing an issue can be critical in determining its outcome; one person’s judicial activism is another’s judicial restraint; one person’s liberty can compromise another’s freedom; a tactical loss today can lead to a strategic victory tomorrow.

The Justices of the United States Supreme Court are not merely umpires. They set the rules by which everyone else plays. Chief Justice Roberts is playing a very long game.