By Claire Finkelstein
With the release last week of Donald Trump Junior’s emails, from which the public learned that he enthusiastically embraced the offer of a Kremlin lawyer to furnish the Trump campaign with incriminating information about Hillary Clinton, it became clear that Junior lied, and that other members of the campaign and later, the Administration, also lied. Notably, Jared Kushner lied when he failed to disclose this meeting and other contacts with the Russians on his application for a security clearance. And given the improbability that the President would not have learned about a meeting between Russian intelligence officers and his son, his son-in-law, and his campaign manager until a year after it occurred, the release of the emails suggests that the President has been lying about his own relationship with the Kremlin.
We are once more grappling with a question that has consumed the American public since Donald Trump Senior first stepped onto the national political scene: What role should personal ethical violations play in an assessment of a person’s fitness for high political office? Does it matter if members of the President’s campaign lied in helping him get elected? Does it matter if senior members of his administration, including many who are still in office, lie? Does it matter if Trump Senior’s lawyers lie in defending their client? For that matter, does it matter if the President himself lies? Is a lying president unfit for office?
For holders of public office, and even for businessmen dealing with foreign governments, there are many circumstances in which lying about contact with foreigners amounts to a crime, several of which were likely at play in the Trump campaign meeting. By “soliciting” information of value from a foreign agent, for example, Junior is likely guilty of conspiring to violate campaign finance laws, as is Jared Kushner and any other American present at the meeting. Further, Kushner surely committed a felony when he lied on his security clearance application. Other possible crimes of relevance are espionage, conspiracy to engage in wire-tapping and other illegal surveillance, and according to some commentators even treason, all of which would in turn implicate the President if he had in fact been aware of the meeting and had approved or encouraged it. Yet none of this directly addresses the question with which we began, which, in broader form, might be put like this: Does it matter whether holders of public office come to power ethically? Does it matter whether they are unethical once in office?
Many of us who are scholars of ethics have watched with dismay—no, horror—as Donald Senior has appeared to revel in the violation of the most basic moral norms, norms of which no reasonably sane kindergarten student could be unaware. Norms like show equal respect for others, regardless of race, gender or religion; don’t use a position of authority for personal gain; show fairness to competitors; keep disagreements civil and respect differences of opinion; use reason, not intimidation, to get what you want; and perhaps most importantly, tell the truth all, or nearly all, the time, especially when the only reason to lie is to save yourself from shame or embarrassment. Donald Senior, along with members of his inner circle, have so flagrantly rejected these basic virtues, that children across the country have been asking how the American people could have elected a president who regularly violates the school honor codes that are posted on their classroom walls.
The President’s supporters consistently dismiss his violations of these basic moral rules. When they are not busy flouting the rules themselves, they defend Donald Senior by suggesting that personal ethical lapses are not disqualifying for high public office, so long as there are no direct violations of law. Does virtue matter anymore for public leaders? Or has mere legality replaced virtue as the highest possible defense of official conduct? With his fatal attraction to dictators, criminals, and ethics violators around the globe, Donald Senior seems not only to reject virtue as an ideal, but to side with Milton’s Satan, who declares, “Farewell Remorse: all Good to me is lost; Evil be thou my Good!”
There is, of course, some irony here, since the “dirt” that first attracted Donald Junior to the fateful meeting with Kremlin lawyer Natalia Veselnitskaya was the promise she held out of furnishing evidence of Hillary’s supposed willingness to receive Russian funds for her own campaign. Junior’s current defense to the violation of campaign finance laws is that no such evidence was forthcoming. So the absence of any evidence proving Hillary’s vice is Junior’s legal defense, though he readily owns up to, indeed he proudly defends, his pursuit of the fruits of Russian espionage. But let’s put that to one side.
The Trump Administration’s consistent defense of the actions of its senior officials and inner circle in terms of mere legality reflects an extreme commitment to the view that the President and members of his administration may do anything in the exercise of their authority that is not flat out illegal – a view of executive branch authority that would have been unthinkable even in the Nixon era. That this argument is even proffered by serious people illustrates the alarming immunity to criticism of the Chief Executive and an acceptance of what Arthur Schlesinger so famously referred to as the “imperial presidency.” This conception of executive power is the natural handmaiden to the corrosion of public morals, one that rejects any constraint on executive authority based on character or virtue. The imperial conception of executive authority, combined with the rejection of the relevance of ethical norms to the legitimate exercise of political power, constitute the gravest threat to the rule of law and democratic values in United States history.
The justifications offered for Junior’s meeting are of a piece with the Administration’s defense of Donald Senior’s apparent stretching of executive power for personal advantage, such as in the firing of James Comey for the purpose of derailing the FBI investigation of the Trump campaign, or Senior’s casual revelation of classified information to the Russians. Complaints of unethical or corrupt conduct are never substantively rebutted; they are instead merely countered by assertions of presidential authority, without even paying lip service to defending the conduct as noble or wise. Indeed, in defending his son, Donald Senior did not argue that Junior’s conduct was ethical. He did not even bother arguing that Junior’s behavior was legal. He instead offered the defense that some of us sheepishly give of jaywalking: Everyone does it so don’t hold it against me.
But how, more precisely, are the assertions of executive authority related to the impoverished conception of personal ethics on display in the Trump inner circle? While previous administrations pushed the limits of executive power, there was a difference: the motive for doing so was not usually to promote the selfish personal interests of the President and those of his close associates. Now personal ethical violations can emerge from the shadows with impunity because the President’s rejection of personal ethics for himself, as well as for those who surround him, represents the ultimate expansion of executive authority. We are witnessing the rejection of every constraint that might keep presidential power in check, even that of pretending to strive for virtue and reject vice in public discourse, because constraint on executive authority is not personally advantageous for Donald Trump.
In a society governed by the rule of law, what would happen following the revelation of Junior’s emails is that Junior, along with Kushner, Manafort, and probably several others, would be arrested and tried for their criminal conspiracy to violate a host of laws arising out of the present occasion. The President might himself be arrested, were the Justice Department not run by someone who is himself implicated in the illegal conspiracy to subvert the presidential election. Law, and criminal law in particular, is often an effective tool for reversing the damage corruption inflicts on the rule of law. But unfortunately, even far-reaching prosecutions will not fully reverse the damage this Administration has done to the country. For beyond punishing non-compliance with our election and national security laws, we will still have to grapple with the ethical damage being done to the younger, more impressionable generations, many of whom do not remember what it’s like for public servants to serve as ethical role models. So the lying – perhaps the simplest and most obvious of places to start in thinking about the moral teaching of the Trump family – is far from irrelevant or trivial. Faced with persistent and pathological lying, there can be no trust of public leaders at any level of government, and without trust there can be no legitimate political leadership.
Ethical character and integrity of public leaders provide the glue that holds the rule of law in place, once mere compliance with legal norms has been achieved. Such virtues help to cement fidelity to law, as well as to ensure that adherence to law is an ideal worth holding. It is perhaps a surprising, but one might hope ultimately uplifting, result of the current political crisis that we are signed up for a crash course in the importance of personal ethics for preserving the rule of law. What we are learning is that personal ethics will ultimately prove more critical for preserving the rule of law than narrow compliance with the letter of the law. This should ultimately come as no surprise, however, since we often judge the merits of a law by its morality, but never judge the merits of morality by whether the course of action it recommends is convergent with legality.
Claire Finkelstein is Algernon Biddle Professor of Law and Professor of Philosophy, and Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
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