Photo by Michael Reynolds/Pool via Bloomberg
Photo by Michael Reynolds/Pool via Bloomberg

Bharara Firing Shows Trump’s Ethics Problem, Says Law Professor (Perspective)

Editor’s Note: The author is the Louis Stein Chair at Fordham Law School, where he directs the Louis Stein Center for Law and Ethics.

By Bruce A. Green, Fordham Law School

When it comes to ethics, appearances are almost as important as reality. Whether it’s judges, lawyers or government leaders, those in power are expected to avoid “appearances of impropriety” as well as improprieties themselves. So far, the president may not be working hard enough to keep up appearances.

The firing of Preet Bharara — not long after the firing of Acting Attorney General Sally Yates for declining to defend an executive order unless and until she was satisfied it was defensible — is simply the latest in a line of recent actions by the Trump Administration that raise ethical questions.

Government ethics — and its opposite, government corruption — can be defined in different ways. The World Bank, for example, defines public corruption as “the abuse of public office for financial gain.” Its studies show that, in the long run, public corruption is bad for the economy and particularly bad for small entrepreneurs and the poor.

Although there is no universally accepted index of government ethics, many would agree on the signs of public corruption. Corrupt officials seek or accept benefits from private parties whom they can assist through contracts, licenses, lower taxes, or favorable administrative rulings. They use government resources for private purposes such as by dispensing public positions to relatives. They attempt to suppress the press to stifle inquiry into, and criticism, of their abuses. They use public power, such as criminal power, for their own private or political ends.

After promising to “drain the swamp,” President Trump is giving the appearance that he is not fully committed to good, clean government.

President Trump has been accused of accepting benefits for himself, his family and his businesses from private parties, including from patrons for his Washington, D.C. hotel who may have their eyes on government largess. He has been accused of using public events and the presidential website to enable his wife and daughter to display and promote their lines of clothing and jewelry. And he appointed his son-in-law, Jared Kushner, to an important White House job.

In fairness to the president, much of this seems like small potatoes compared to what autocrats do in corrupt regimes. No one has accused him of taking bribes, for example. It seems unlikely that the president will actually favor patrons of Trump hotels, or that the White House deliberately set out to boost sales of Trump clothing and apparel. And importantly, the Department of Justice approved of his hiring his son-in-law, concluding that although it was a close question, federal anti-nepotism laws probably do not cover appointments to White House positions.

Perhaps other bad appearances have been more troubling. President Trump’s recent public threat that he has “a running war with the media” and that “they are going to pay a big price,” might be viewed as an attempt to intimidate members of the press from serving their traditional, constitutionally-protected role as government watchdogs.

President Trump’s threat to use criminal power for personal or partisan ends is no less troubling. Before taking office, President Trump seemed to assume that he can take the reins of the Department of Justice, directing it, if he so desires, to “lock up” a political rival, Hillary Clinton. So far, there is no indication that the president has taken control of federal criminal prosecutions. But his unexplained firing of U.S. Attorney Preet Bharara after initially asking Bharara to remain in place raises questions about whether the decision was meant to influence a particular investigation and, in general, whether the president intends to interfere with federal prosecutors’ traditional independence for partisan ends.

Appearances matter, because the public will never see what goes on behind the closed doors of the White House or hear the president’s private thoughts. One may never know whether the president’s daily decisions are meant to serve the private financial interests of his businesses, his family or his friends. When he approves arms sales to foreign governments, is he hoping that one day in return they will approve developments of Trump foreign properties? By avoiding appearances of impropriety, even little ones, the president will reduce public doubts about his motivations when he makes big decisions over the next four years.

It is not too late for President Trump to change his course. Early in his term, as the new president wades into national and international policy, it is important for him to think about appearances and, in particular, the appearance of honest, ethical government. For America to be great, it is important that its government be good – that it serve as a positive example both for its own citizens and for governments around the world.

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