Samuel Clemens, Guest Writer
Author’s Note: I would like to start this article by acknowledging that I am neither a legal scholar nor a policy expert. I am a concerned citizen who tries to stay informed, nothing more, nothing less.
“quis custodiet ipsos custodes?” – Juvenal, Satire VI, lines 347-346
If our politics ever return to something resembling normality, one thing is abundantly clear: we need an entirely new set of ethics laws for public officials, and the mechanisms for enforcing them must rest outside of the hands of those officials.
Recent events have made me realize how much our institutions are propped up by goodwill and adherence to democratic norms. Madison’s writing on the danger of factions comes to mind.
It is unconscionable that simply because one party controls the House, Senate, and Executive they can flout basic rules about conflicts of interest, perjury, and obstruction of justice. Ethics monitoring should not be dependent on electoral politics. If the Democrats have done the same in the past and the news media ignored it, shame on them, but it was wrong then and it’s wrong now.
Ethics should not be a partisan issue, this should be about basic government oversight. This is should not be a governmental division of Republican versus Democrat, it is a fundamental question of whether we are a nation with Rule of Law that holds elected officials accountable or a banana republic where the powerful can break the rules with impunity.
For those who believe that thorough Congressional investigations into the Trump administration’s ties with Moscow is partisan political theater and a waste of taxpayer money, consider this: the 2012 Benghazi consulate attacks, and Hillary Clinton’s role in them, were investigated no less than seven times in Congress.
That is not an exaggeration. Between the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs the House Permanent Select Committee on Intelligence (HPSCI), the Senate Select Committee on Intelligence (SSCI), the majority membership of the House Foreign Affairs Committee (HFAC), the House Committee on Armed Services, and a special Select Committee on Benghazi that was created solely for the purpose of investigating the attacks, there were seven separate congressional inquiries, all of which failed to produce evidence that anything criminally negligent had occurred.
The rationale for this was that the American people “deserve to know what happened” in Benghazi , a line that should be familiar to anyone who has recently been following Rep. Adam Schiff (D-CA) or Sen. Mark Warner (D-VA), ranking Democrats on the HPSCI and SSCI, respectively.
Schiff and Warner now argue that the American people deserve to know why Lt. Gen. Mike Flynn and Attorney General Jeff Sessions lied under oath about the nature of their relationships with Russian nationals.
They proffer that the only way to find this out is a thorough investigation of what the Trump campaign and transition team’s ties to Russian foreign service agents were and whether they colluded with them to aid in the dissemination of internal DNC documents.
I am inclined to agree with them, but I would also argue that we deserve to know what happened any time a public official abuses their office or breaks the law, not just when it is politically advantageous to investigate or prosecute.
The depth of the partisan nature of government ethics enforcement should be readily apparent from last week’s headlines:
On Monday, the House Permanent Select Committee on Intelligence held their first open hearing about their investigation into Russia’s role in trying to influence the 2016 election, recent allegations Trump had made on Twitter against his predecessor, and the problem of leaks of classified information within the Trump administration. The witnesses before the select committee were FBI Director James Comey and NSA Director Admiral Michael Rogers, who both affirmed that there was no evidence to support Trump’s wiretapping claim.* In addition, Director Comey publicly disclosed for the first time that there was an ongoing classified Department of Justice investigation into the nature of the Trump administration’s ties to Moscow.
Yet on Tuesday, Rep. Devin Nunes (R-CA), Chairman of the HPSCI, went to the White House to share classified documents that no other Select Committee members had seen. The documents had information pertaining to U.S. citizens who had been unmasked by classified surveillance of foreign nationals related to the HPSCI’s investigation of allegations surrounding the 2016 election.
As to whether the documents implicated members of the Trump administration of illegal collusion with Russian intelligence services, I do not know. What I do know is that sharing information about an ongoing investigation with the people who are the subjects of said investigation is beyond unethical, it is perhaps the epitome of obstruction of justice.
Will Rep. Nunes be sanctioned for this? Maybe, but only in the unlikely event that the Democrats regain control of Congress in the near future. But, it should not have to depend on this. Public officials should be held to the same or higher standards than private citizens.Why then, do senior public servants seem to be able to circumvent the rules without getting burnt?
If Elliot Ness went to Al Capone with the findings of the Department of Treasury’s investigation, forget losing his job, he would likely have ended up in prison. How do we reconcile our belief in equality under the law with the fact that the connected, wealthy, and powerful seem to live by a different set of rules?
If Congress cannot perform oversight in a non-partisan way, another arm of government must fill the void. Of course the implications of what I’m saying can be scary, and are, in a sense, antidemocratic. It’s a hard sell to the American public: taking power away from elected officials and increasing the influence of unelected technocrats.
It is clear that our politics have devolved to the point that elected officials can no longer be trusted to make sure they and their colleagues are discharging their duties honestly. One safeguard against this is fostering an electorate that is civically engaged enough to hold violators accountable at the ballot box.
Those problems are abstract and difficult to solve. But a tangible solution is giving more power to sanction public officials to public servants who are beholden to neither a party machine nor a reelection campaign.
In theory, federal prosecutors are obligated only to the Truth and the Law. In practice, no one is perfect, and I’m sure many “non-partisan” bureaucrats have abused their positions and perverted the intention of their agency to pursue ideological, partisan, and personal goals.
It is not a perfect solution to rely on technocrats to hold elected officials accountable, and as has been seen in Brazil, it can carry with it the accusation of an even darker crime: coup-d’etat.
In the ongoing Lava Jato corruption scandal in Brazil, the fallout from which has seen president Dilma Rousseff impeached, accusations have flown that the corruption investigations of Judge Sergio Moro have primarily targeted members of the leftist PT (Worker’s Party) rather than dealing with corruption in a holistic or meaningful way, and amount to a nonviolent coup.
The opposing argument: for the first time in Brazil’s history, powerful business magnates and corrupt politicians are being jailed and having their assets seized, when before, the bribes were paid to the right people and the corruption went on unhindered.
With the example of Brazil in mind, I admit to the fact that putting ethics enforcement outside of the hands of lawmakers carries with it a unique set of questions about fairness and impartiality.
So I ask the real question, the one that democracies have been trying to answer since the Enlightenment:
What is the correct balance between Freedom and Justice?
Whatever your assessment might be, I think most people would agree with the virtue of avoiding extremes: anarchy is not desirable, and an oppressive, restrictive legal system is not desirable. In an ideal society, individuals shouldn’t be allowed to do anything they want, but the governing rules should promote liberty and the pursuit of happiness.
If you can agree with that premise, let’s take that to the logical conclusion in regards to holding elected officials accountable. This is a free country, ruled by the consent of the governed, and uninformed or ambivalent voters are free to re-elect officials who skirt the the rules and use their influence to escape punishment. But is that just? Does that freedom produce anything of value for our society?
I would argue no, this freedom has served only to expose the woeful state of civic engagement in this country, and has contributed greatly to governmental dysfunction and a legislature with an approval rating in the low teens in recent years.
Reforms for a democratically responsive government, for “Draining the Swamp”– should have bipartisan support. Unfortunately right now, neither party can afford to appear weak to their inflamed bases. Even if they could, party politics places a large barrier towards any changes. The only group with a logical motivator to change the status quo is the minority party, which has no ability to execute those changes.
But one day, I hope elected officials and policymakers get behind an empowered push to curb their worst tendencies and make sure that the internal administration of justice is not subject to partisan whims. The longer we allow our senior government officials to engage in petty, self-serving, and illegal behavior, the more America abdicates its role as a global leader and an example of democratic institutions for other countries to emulate.
*There seems to be a great deal of confusion around this issue and I will try to clarify it within the scope of my knowledge of surveillance law. It is quite possible that members of the Trump campaign and transition team were surveilled incidentally as the result of legal and constitutionally sanctioned surveillance of foreign nationals suspected of espionage within the parameters of the 1978 Foreign Intelligence Surveillance Act (FISA). This is not the same as Obama wiretapping Trump Tower, which, regardless of his intentions, is what President Trump alleged on Twitter. The distinction between the two is important both legally and ethically. If it turns out that Trump advisors were willingly in contact with foreign nationals who are the subjects of open FISA warrants granting the U.S. government authority to monitor their communications, that would not constitute an abuse of authority on the part of the Obama administration. It would, however, beg questions as to why Trump associates were in contact with suspected foreign spies.