Posts Tagged ‘ethics’

May 31 roundup

  • “Heir hunters” chase missing relatives entitled to inherit unclaimed fortunes, for a share of the recovery. Some relatives might not even be relatives [James Fanelli, New York Daily News first, second stories]
  • Put up a statue of Clarence Darrow for the Scopes case? OK, but then take it back down for the L.A. Times case [Mark Pulliam, Law and Liberty]
  • Lawyer who founded Prenda Law is disbarred [Joe Mullin, ArsTechnica]
  • “Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children” [Timothy Sandefur, Children’s Legal Rights Journal]
  • “Russian bank owners sue BuzzFeed over Trump dossier publication” [Josh Gerstein, Politico]
  • On OMB regulatory management, Trump administration is headed in its own new direction [Andrew Grossman]

Please advise IBM of any mint issues

A tweet by Robert Swirsky:

A followup photo includes the fateful mint jar. In subsequent discussion, attorney Peter Orlowicz points out that general federal ethics regulations “exclude modest items of food/refreshments from the definition of ‘gift’; it’s not clear that IBM was being over-cautious, though, given that supplementary agency regulations as well as state and local regulations have been known to go further than the general federal standard.

Bar ethics complaint against Kellyanne Conway

Fifteen professors recently filed a misconduct complaint against Kellyanne Conway with a D.C. bar disciplinary committee over things she has said in support of President Trump. Prominent legal ethicist Steve Lubet argues — and I agree — that this “dangerously misguided” complaint would set a terrible precedent if it somehow succeeded. Last week Paul Alan Levy, the First Amendment lawyer with Public Citizen, came to the same conclusion: bar panels have no business going after people who happen to be lawyers over their political speech. The complaint is an irresponsible stunt, and should be tossed out ASAP. More: Maya Noronha, Fed Soc Blog.

Trump’s business interests and the Emoluments Clause

Given the complex ongoing dealings between the Trump Organization and foreign governments, the Emoluments Clause of the Constitution will require Congress to “decide what it is willing to live with in the way of Trump conflicts” — and it should draw those lines before the fact, not after. That’s what I argue in a new Philadelphia Inquirer piece. Excerpt:

…Trump points out that the president is exempt from the conflict-of-interest laws that bind Congress and the judiciary, but that doesn’t mean he will escape scrutiny from public opinion or from the body of federal law as a whole, including the Emoluments Clause.

That clause reads in relevant part: “And no Person holding any Office of Profit or Trust under [the United States] , 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.”…

The wording of the clause itself points one way to resolution: Congress can give consent, as it did in the early years of the Republic to presents received by Ben Franklin and John Jay. …

…it can’t be good for America to generate a series of possible impeachable offenses from a running stream of controversies about whether arm’s-length prices were charged in transactions petty or grand. …

There is no doubt that doing the right thing poses genuine difficulties for Trump not faced by other recent presidents. If he signals that he understands the nature of the problem, it would not be unreasonable to ask for extra time to solve it.

For more detail, Randall Eliason has a helpful explainer, e.g. on why Emoluments Clause issues do not map well onto the concept of “bribery.” (Bribery is subject to a separate ban, while both presents and some other payments can violate the Emoluments Clause even if given and received with the purest of motives.)

Update: With Trump’s announcement this morning that he intends to step back from management involvement with the Trump Organization, I’ve adapted this post into a longer piece at Cato at Liberty on what comes next. I quote Prof. Bainbridge, who’s got a second round of observations here.

Yet more: memos shed light on how the Department of Justice has construed the obligations of the Emoluments Clause over many decades. And the Washington Examiner, which recently welcomed Tim Carney as new opinion editor, suggests an “occluded trust.”

Where a conflict of interest policy for prosecutors would have helped

The city of Woodbury, Minn. employs a local law firm on contract to “prosecute certain criminal matters on the City’s behalf.” Lawyers from this firm filed a criminal action against Mr. Sample over an alleged domestic assault even as, at the same time, the firm was representing his alleged victim in civil actions including a restraining order. It “later asked another firm to prosecute the criminal case against Sample [on the grounds] that it had a conflict of interest.” Mr. Sample’s later section 1983 suit alleged that the law firm’s dual role at the time of the filing had violated his constitutional rights; the Eighth Circuit ruled that the prosecutors themselves enjoyed absolute personal immunity, but — such immunity not extending to towns — ordered further consideration of Sample’s claim that the town should be liable for not instituting a conflict-of-interest policy that would have headed off the problem before it happened. [Sample v. City of Woodbury et al.]

“My inference is that the ABA wants to … limit lawyers’ expression of viewpoints that it disapproves of.”

Eugene Volokh on troubling implications for speech of the American Bar Association’s new adoption of rules declaring it a professional responsibility violation for lawyers to express bias in various ways, including in the course of “law-related social activities.” More: ABA Journal, Ron Rotunda/WSJ, Stephen Bainbridge.