>> on monday, a preview of the president's seat of the union address, including kellyanne conway, nancy pelosi, and angus king, and shalimar capital -- a nd -- it starts at 2:30 p.m. on c-span3. now, to a discussion on government ethics for federal employees. former director of government of ethics, walter, talked about possible conflicts of interest, and tensions for whistleblowers. this is 90 minutes. >> good afternoon and welcome. we are happy to see you here this afternoon.

i am nicole austin hillary. friends atthank our nyu for coke hosting this event and being a partner. we are pleased you are joining us this afternoon for interesting and exciting conversation on presidential ethics law. this is a good moment to have the discussion. the brennan center is a nonpartisan institute that seeks to improve our broken system of justice and democracy. we work on what we think our cutting-edge issues, such as voting rights, money, and politics. make our democracy and

justice system stronger. follow the brennan center if you do not already on facebook and twitter. .heck our videos and podcasts i am introducing kimberly. tony and introducing to relate. [applause]. -- [applause] kimberly: thank you. trump -- ethical controversies making headlines that's inauguration day a year -- what can be done to shore up federal ethics laws to give

the public confidence there leaders will put the interests of the american people first? what are the most significant federalsting in our ethics regulation. what are the most promising ideas for reform? those are the questions we are tackling today with our esteemed panel of guests, including kathleen clark, professor of law at the washington university school of law. walter shaub, the ethics director at the campaign legal center. welcome to the brennan center of justice at nyu the state -- nuc nyc d.c.

inant to start are discussed -- our discussion -- we will have time at the end for questions. hold them type and we will come to them later. i want to talk about the background of federal ethics law and how they apply to the president. >> that is a good question. the exemption dates back to the late 80's, although it was implied before. is presidentesting , notwithstanding there were not prohibited from having health --

took voluntary steps to avoid them. usually, it took the form and my co-panelists will correct me if i am wrong. they usually took the form of limiting the types of assets they held to diversify mutual fund bank accounts or placing other types of assets in a blind trust. that is a key element of the federal ethics regime not apply to the president. other rules include propositions on bribery. nobody has suggested they go -- they do not. the president has ever been prosecuted. most of us would agree presidents can take bribes, they have to disclose them. there are fewer constraints for every other federal official

other than the vice president. kimberly: talk about the rules put in place along the way to complement and supplement the existing legal framework when it comes to regulations -- to regulating ethics. with regard to the president? kimberly: with regard to the president. it means the law does not impose a criminal penalty for the president's conflict of interest. it is not mean a president cannot have conflicts of interest. the president can have a conflict of interest because it is anything that creates a financial interest running contrary to the duties of your position. the president can do it. we have seen this president do that.

it is not entirely true no one covers the president when it comes to conflicts of interest. technically, the present is covered by ethics rules. traded an exemption for the president to allow him gives. it became effective january 1. issued asapproved and a final ruling in 2016. oge created a new requirement you should consider if you can accept the gift because an exception applies, should you accept? it? -- it? -- except it? -- accept it? i do not suspect that is being

applied. it should be. good government groups and reporter should ask if they see him accept a gift, what is your analysis in applying those factors? another of score provision applied to the president -- 2012, congress passed the stock act. it was incorrectly reported the law was rescinded. provisions incy it curtail the -- rollback of it. it is in response to a "60 suggestingece members were profiting from their position. apply to theed to legislative branch. president obama called on shameds and

them. it extended to the executive branch. it became a christmas tree of people living ornaments on it because there were three different amendments added in the final two weeks or so. definethe provisions to a president as an employee. one of the restrictions was a requirement, under section 17, to refuse any matter affecting the financial interest of anyone you have an --angement with for future negotiating for one of those. it is interesting. it opposes the refusal requirement on the president -- a reclosable requirement -- a recusal requirement on the president.

it has not been challenged because nobody is trying to assert its coverage. it was a crossing of a threshold. i do not know if they did delivered late. you have to assume they knew what they were doing. kimberly: yes. [laughter] about aboutt's talk what is missing, what some of the loopholes in these rules, as you like them out our. kathleen, can you give us an overview? kathleen: i can. i want to emphasize our first conflict of interest is in the constitution.o it indicates the president or any government official is limited from accepting something of value from a foreign government.

-- in terms of exceptions, inblems needed to be filled, 1989, congress amended the --minal financial it exempted the president and vice president from his reach. it was a mistake. back a couple of more decades, back to 1962, when president kennedy was admitting copperheads of sets of ethics --formance before congress

from 1962 on, imposed on the president and vice president. it is one thing congress -- will we get a congress that cares foundingabout our principles and conflict of interests. that congress these to reenact this financial criminal provision on the president. another problem in the conflict of interest standards or ethics standards -- it is a process issue. --ernment officials high-level officials, are required to fill out detailed forms about their financial interests. the statute had been interpreted so if a government official had a company, a business, the

official does not need to disclose the debt and financial relationship of the company. hasave a president who hundreds of llcs. at the office as interpreted, these that you -- he was not required to disclose the financial relationships of those llcs, including the debt owed by the llcs. financial disclosure laws adequate for people in the room. they are not adequate to deal , whosomeone who is using has their own company. it has been interpreted not to require disclosure. for someone like trump, jared kushner, we need to change the loss, so we can get visibility

into the financial connections, including the debt, of their own companies. >> can i add one thing? in addition to not having to disclose the debt, the other wacky thing about ethics disclosure is if you ever seen, broad ranges -- see -- broad ranges. to see what your asset is, maybe adequate. one thing we looked at -- if you look at other countries, it was -- was not a man taking action. it was a pattern of rent seeking businesses in sectors of industry advertising inflated prices at his company's and increasing their value -- as his

companies and increasing their value. the president and wife of argentina owned a chain of hotels. itn you have broad ranges, obscures which assets are in the value -- which are valued. mar-a-lago made $70 million more during the most period then before the president became president. he disclosed it. that is a good example. is a more-lago attractive place to play and be a member. it is something the forms would not reveal right now. kimberly: 20 to step back from to stepnt and -- i want

back from this point in posting the panel -- why should we care about these issues? why should we care about conflict of interest? some say he is a good businessman, he has the right to make money. we knew he was a businessman when he was elected. identify why we have these laws and why we care. back over ago couple of the points we just -- kathleen and i agree -- disagree one point. i do agree the 1962 law applies to the president. it was understood at the time the criminal conflict of interest statute that apply to the president. silverman wrote an opinion articulating it.

oge citedited -- an it -- there was there's this at the till and of the reagan administration about the consequences for alleged issues. people do not think they were changing the law. in terms of liabilities for companies', i certify the president's financial disclosure. i stand by it. if we find that he left things off, there would be no way oge would know that. i agree with the other two. list in terms of disclosure. companies isnt of consistent with the rest of the application of the statute.

in coca-colatock or exxon or any other large public traded company, you will not know a rate person who called up a broker and said buy shares of google and exxon. the gap we are seeing is privately held companies, more specifically, more privately held family companies like president trump's and jaredmpanies na kushner's family companies. it is a new problem we have not had a lot of experience dealing with. they will has been caught up with the fact we have public officials with these privately held lebanese -- companies.

i look at it as a technician. not agree we need to break the ranges on the value side. a one dollar asset, it is still a conflict of interest. what if there is an exemption that applies? you may be more important on the income side. evaluation -- i take your point, it is maybe less important. >> if we should publicly traded copies out of it -- there is no -- these privately held companies could see these fluctuations and want to know what it is about. this goes back to why this matters. a -- a question it is --

question of corruption is if somebody is abusing or misusing authority for their own personal individual orate company. have people going into government to enrich himself or others by using governmental authority -- i'm not talking collecting your salary -- using trust -- by their benefit, you pervert the authority and use it for your own benefit, then it calls the legitimacy of government as a concept much less than in the individual case. that is the hallmark of the countries we label banana republic or things. leaders can help themselves. couldare rumors that

--putin used his power to become the richest man of the world -- or one of them. why are we interesting authority to people? in ad the actual misuse, western society, a sense we should not have to ask for questions. the ricky gervais on the government official to take whatever actions they can to show us there is no remaining conflict of interest. it says that it is as it should be. the public should not have enough access to know. the line is hard to draw. we find ourselves highlighting the smaller violations telling rot goings a broader on. we should have to ask that the

government officials should be able to say i cleared the decks on this and related conflicts of interest, so you can know my decisions are based on the policy aims i declared when you voted for me rather than on my own personal enrichment or the personal enrichment of a third party. >> we have had president to take that approach, even though it did not apply to them until now. waltwant to add -- mentioned russia. in venezuela, it was a prosperous democracies for many -- rocker seat for years. people -- democracy for many years. people thought it was shot as -- was chavez. perceptions and dealing at the s faithermine the public'

in democratic institutions. we are seeing reduced faith in democracy. united states is not immune to it. the canary in the coal mine indicative ethics is of a broader range of democratic insurance. you take the idea the president can have a conflict of interest to the extreme, you get the idea the president's interest are -- with the state. it takes you into a different political philosophy from the ideal our country was founded on. i do not important -- want to have on the president's businesses, but i do not want to exceed his authority.

we should worry if we are worried about the broader of ray of the -- of array of the presidency. kimberly: i want to as a question. kathleen, what are the limits of ethics law? what are those limits set by? the constitution? something else? kathleen: the starting point is the competition. if we look at the foreign and even monuments -- and the monument clauses -- and emolument clauses -- the idea our government officials are so they can power exercise it on their vision of the public interest. matter isrt of the

the legal -- officials have obligations to the people. , which is foundational. -- people, which is foundational. the office of government ethics and otherwise are expressions of the notion that the public office is a public trust. at the very heart of it, it is about government officials recognizing, acting as though they go obligations to us, not just to themselves. totals all -- as complicated -- almost all -- as complicated as they can get -- can be connected to the foundational principle

that the public office is a public trust. it is not clear if this president will recognize that truth. i think he is challenging the truth. withhallenge is consistent anti-democratic tendencies we have seen, in attacking -- not just foundational principles, but foundational protections for our democracy. it is all of one. >> i would like to make a pitch to people who like -- the next president may not a billionaire real estate developer. it may be a lefty tech titan valley or a media mogul. those will apply to the individual. many people like this president and that doesn't mean you shouldn't care about this stuff.

every president tends to forget that the next president may have a very different philosophy and they reject constraints on themselves that they might like for their successors. i think that's important to keep in mind. >> going back to what kathleen was saying, goes back to the fundamental purpose for us being a country and having the government could the question becomes, do you serve the government or does the government serve you? if you serve the government and -- as authoritarian country where the king or ruler rules all, it might make sense to misuse the criminal investigative apparatus of the state to go after your vanquished political rival and punish them for having dared run against you. or if you live in the country by -- country where the government exists to serve you, maybe the criminal investigative apparatus is for looking for crimes that are a threat to you right now.

and not digging up things that go beyond the statute of limitations in some case. when they announced they are going to do offshore drilling and they put out a federal register notice even before the period closes, secretary zinke exempts the one state in which the president's each front property exists, but everyone has to wait. it looks like this is for the benefit the state. as opposed to we have come to a social contract where we are going to have a government to protect us in one way or another. i think as dan was emphasizing, the concept of the canary in the coal mine is very broad because this is an indication of in many ways a trend toward authoritarianism in the sense that this is for my benefit as your leader as opposed to i am

acting out your wishes. kimberly: just a reminder, this is the brennan center for justice and we are talking to walter shaub, kathleen clark, professor of law from the washington university school of law, and daniel wiener at the brennan center, and i am kimberly atkins. you can follow the brennan center for justice on facebook, twitter, and watch their programs on you to -- programs on youtube and listen to itunes podcasts. all their reports and media are online at brennan center.org. i want to talk a little bit about solutions or proposed reforms that you all have, but maybe kick it off first with walter explaining what oge does

and why it seems at least, from my perspective as a reporter, that it was developed largely to be self-governing, at least when it comes to the white house -- and is one of the proposals tougher enforcement mechanisms for oge or something else out of that? walter: the office of government ethics, which i lead until the summer, is a prevention tool , plain and simple. that is what it is here to do. i don't view it as part of the enforcement mechanism. it is part of the prevention mechanism, so my discussion on where to go from there stems from that. people come to the office of government ethics, or to any of the 45 agency ethics officials that it oversees, and proactively asks for advice and we have nominees coming to oge opening up their financia assets -- their financial assets and answering very intrusive questions that go beyond what we need strictly for the form, in

order to be sure that there is not anything we are missing that has to be addressed. and by and large, they tend to cooperate. -- cooperate and the prevention mechanism, you know, it is hard to quantify what has been prevented, because you are writing down what has not happened and i once said at the beginning of a speech that you don't hear much about ethics when things are going well and that is precisely as it should be, but you don't see people knocking on the door of an inspector general and saying, "i am thinking about doing this thing. will you investigate me and to see if i get thrown in jail if i do it?" nobody goes to the police man for advice proactively, so i think oge has a role in enforcement, which is coordinating with the enforcement entities and delivering information that shows wrongdoing to them, but in terms of the interactive back and forth, i don't think you have that kind of interaction

with the level of success that oge had for 40 years until this past year, if people are having to report themselves to the policeman to get advice. and so as a result, oge's authorities are somewhat limited. i do not necessarily think conceptually that is a terrible thing. you have to remember that when i was the director, my immediate supervisor was the president and i point out to people, i once last year had to fill out a form and for the life of me i can't remember what it was come on but i had to write the name of my supervisor and i wrote donald j. trump and i went back there to make sure that they did not think i was just being a smart alec. he was literally my supervisor. that's important to understand that's important to understand and it vividly illustrates the limitations on oge because ultimately the things we are seeing and the departures that have occurred in the past year

are the fault of congress that has refused to exercise the kind of oversight that you can be sure it would have exercised if if the other candidate had won. and ultimately, only congress is going to be able to impose consequences on a president. the president's employee is not going to be able to do that, and even if you gave them the authority to do it, he would just fire them before it became effective. we are already having to bite our nails hoping that robert mueller does not get fired and that is a criminal investigation and he has the power to charge somebody with the obstruction of justice. there's no way anybody is talking about building an oge that is a special counsel like mueller, and if you did you are making a decision to throw away a prevention mechanism that has prevented a lot of harm. you have to look at the trade-offs and i think there is temptation in a lot of ways to want an easy fix to a complex problem, but my experience in

this world is that the world is very nuanced and complex and easy fixes do not work well for complex problems. and i think along the lines of something dan said, you know, he made the comment about congress and some of the same congressmen who have no interest in looking into anything going on now for asking questions and are still asking questions about what they call pay for play with a nonprofit but -- and by the way, that is a fair thing to look at -- but how do you have concerns about pay for play with a nonprofit when you have a for-profit with this president that is letting people pay for access to the president and not use the same terminology? and so, the lessons we learned in our civics classes in high school aren't working out because congress is not serving as a check. even when robert mueller is

done, he is only going to release information that will either lead to somebody being convicted or is exculpatory in nature. he has a constitutional responsibility to share that with the defendant. but beyond that you will not get answers. what we do not have is a 9/11 type commission that is looking at all aspects of what happened in the last election to really dive in and tell us in detail or write a report like this that lays out everything they found that happened last year. that isn't happening because the constitutional check of congress overseeing the executive branch is not working when you have one party in charge of all of it. that is not that i am for one party or against. i will probably vote against any party having total control ever again, even if it means voting against the candidate i like, but getting back to the fixes, the question becomes what do you want to fix? do you throw away 40 years that seemed to work relatively well and had built upon itself and refined itself to the point where we were doing fine tuning

rather than turning the bigger dial that moved the needle up and down, for those old enough to remember knobs on a radio -- so the kinds of things i would like to see include -- and i shared 13 proposals and i won't go through all of them, but the kinds of things i would like to see -- and you hear that we disagree on this panel about some of the fixes, but one of the things i would like to see is, and i think it is in common with them, is increased protection for the director of the office of government ethics. when i made my stand last year, i was a guy that had student loans, no new job lined up, 19 years of federal service, one year short of the magic 20, and i thought it would be fired at 12:01 on january 20. so it was get a kick out of the white house's comments that i did this for a profit.

it is like, i will trade shoes with you any day. but setting aside their deep, dark cynicism in comments like that, i do think it would be helpful if the director of oge, like others in government, like inspectors general or the head of the office of special counsel, which is not robert mueller's office but the office that investigates whistleblower retaliations, could only be fired for cause and congress had to be given 30 days notice with a written a donation. something as simple as that. -- a written explanation. something as simple as that. where i fought a battle the white house to get some records, oge has all the authority it needs to gather information and records about ethics, but none of the power. and the difference between authority and power is the authority for a judge to issue an order and the power is the ability to send marshals to your doorstep when you do not comply. oge has plenty of authority, but no u.s. marshals on hand. in terms of investigations, i do think that there is a gap in

investigative authority, because there are dozens of small agencies that have no inspector general. and you also have the white house among them that is outside the scope of an inspector general, so the proposal i made is create one centralized inspector general that covers all the entities in the executive branch, other than the white house, that don't have an inspector general and give the ig full authority to investigate anything coming out of their the the way that an ig can and a special ethics authority to conduct an ethics investigation in the white house or anywhere else in the government for really high-level officials upon referral from oge. and that also is a mechanism that prevents abuse, because you could suddenly empower oge to be an investigative body and one director is going to make decisions about what to investigate and you can have the ethics program become a

political tool in that case, but having a separate ig who can only conduct a special investigation of the white house, upon referral to oge, it is like those old 1980's war movies with the two guys in the missile silo who have to turn the key at the same time from across the room. it means that two have to agree and they may have been appointed by different presidents in many cases, so that gets protection. and the one other that i will cover briefly is my proposal for solving presidential conflict of interest. i don't think that a president should have to recuse because i do think that we need a president to participate in everything. we can't have a national crisis unfolding with split-second decisions needing to be made and the president saying, can somebody check the file and see if i need to recuse from this and not participate? and there's nobody to give a waiver because he does not have a boss, but even if he did it,

turning over the power of the executive branch. i don't agree with those who say it's a concert several -- constitutional problem because congress already has a limited circumstance, but i think it is a bad idea and dangerous in the sense that we need a president available for things, so i would like to get us back to the tradition where presidents voluntarily take as many steps as humanly possible to resolve conflicts of interest voluntarily and one way that i came up with to do this and i proposed it to congress was require them to disclose, in writing, to the office of government ethics their plan for addressing their conflict of interest and have oge post it. that is one piece of it, but the key piece is that it happened before the first primary to decide who is going to be a party's nominee, because the media failed to ask the questions last fall. they failed to ask hillary clinton what are you going to do with that foundation? they failed to ask donald trump what are you going to do with

all of these companies? even if they had done that in the fall of 2016, i don't think there are very many people in the world who are going to change parties over that. but if you start asking the question, when you had 16 people running for the same party's nomination on the stand, i suspect ted cruz or marco rubio or chris christie or jeb bush or john kasich or ben carson would have really thrown down with this president over his failure to come up with a plan to resolve conflicts of interest, and some people might have said, that bothers me so i will vote for this other guy who is going to run for my party's nomination and i do not have to change parties. and so the idea is disclosure, but disclosure early enough. then the final piece of it has to be you can and mended at any

time in writing and rerelease it so it becomes a race to the top. you come in and bid to low the next cannot comes in and says i will be this much more. and you take a beating at a town hall or debate or something and come back and you re-release an even higher plan and then they compete. i wonder if that might create enough pressure to get us back to voluntary compliance with the investiture rather than compelling recusal. the final thing i will say is something dan said about it cutting both ways. it cuts both ways in a bigger sense. if you like donald trump, you should be concerned that maybe somebody else will become president and keep their conflicts of interest. maybe hillary clinton will run again and keep her foundation and a few years ago you are chanting, lock her up, but now are living with it because he approved donald trump. there are a number of millionaires and billionaires toying with the idea of running

and no matter which party that they run for, if they come in and refuse to resolve their conflicts of interest, then they have now sealed permanently in place the idea that a president doesn't ever have to worry about their conflicts of interest. and if they take advantage of the fact that they can say the other guy didn't do that, the other party didn't do that, but they come in and do it again, make no mistake they are part of the problem and not part of the solution. so people need to hold their own party accountable and on both sides put country before party, and i think that is a challenge that we are seeing people fail right now. i hope it stops and i hope that we don't start seeing the same behavior all around. kimberly: and i want to go to dan and kathleen too about other ideas or counter ideas about solution, but keeping in mind, one question that comes to mind as walter was talking was if the

only way for the president in particular is to take office is for him to completely divest himself of all of his earnings, especially if he has a company the way that president trump does, put it in a blind trust or some other way, completely divest yourself, why would that dissuade people from running? is that too much to ask somebody to do? i want you guys to talk about that and also reforms as you see them. kathleen: so, i personally do not think it is too much to ask to ask a candidate for president to start putting country first. and so requiring divestment or a commitment to divest does not seem like too much to me. but i also want to just come back to something that walter said, when you referred to the conflicts that the office of government ethics had with the

white house in may, in the spring of 2017, i believe it was with regard to whether the white house was going to discuss or publish and disclose the waivers it had issued. you said that the office of government ethics did not have much power to compel. and i think that you are right that the office of government ethics did not have the traditional power, but what you really masterfully demonstrated is that you had soft power. i think that your interaction with the trump white house with regard to the waivers and otherwise in 2017 is sort of a case study that really should be studied by students of public administration, as well as law --

walter: perhaps congress. kathleen: you not only have the commitment and the right position that the white house should disclose these waivers that pretty much showed the ethics executive order was a bit of a joke in how it was ultimately used, but you got them to actually make these disclosures, because you shamed them into it, which is an amazing accomplishment that the office of government ethics was able to shame the white house and the white house counsel's office into doing the right thing. and so i just want to highlight, as we think of reforms, that we need to keep in mind that, we will refer to them as guardrails, these norms rather than laws, but you're really -- your masterful handling of that conflict is something that you

deserve a lot of credit for, and also perhaps it is something that we need to look for ways to cultivate on the part of other accountability mechanisms within and without of government. daniel: i would add that congress has a role in that because congress has used its oversight authority in the past not just to enforce and ensure compliance with the law, but also to enforce written norms. past presidents, when they violated norms against the law, those triggered congressional investigations. so i think congress does need to have that message reinforced. i do disagree with a couple of things, although i agree with most of it and i'm traveling at the thought of disagree with you about ethics. [laughter] but two things, i want to note we have the longest serving federal election commissioner here in the audience. and the fcc is an example also of the challenges that come with

enforcing some of these guardrails and also have the dubious distinction of having to regulate the president, or at least the president's campaign while he is technically the commissioners boss. and the fcc has its challenges, but it is doable and many federal agencies for instance do have an enforcement division that is walled off from the rest of the agency. and i tend to think with the fcc that that enforcement division should be more powerful, but there is a way to empower career civil servants to enforce some of the laws with oversight from the political appointees, so i do not think it is impossible for that to become oge, but i also respect your point of view as having run oge and it does not have to be within oge. i think that there is something to be said for a culture of voluntary compliance and people do not know that a lot of agencies try to combine

supervision with enforcement, and you know, the sort of confessor role and the enforcement role, that is a larger discussion on how well that works and maybe they should be desegregated. on conflicts of interest for the president, that is where i disagree. i think the reality is the president is uninvolved in the vast majority of government decisions. that even from very high-profile decisions, the president is supposed to stay out of, like whether to prosecute people. i know that is not the current occupant's philosophy, although there is not necessarily an indication that that has been accepted by even his own justice department. so i just do not -- i am having trouble understanding why accusing for the president and his own cabinet does all the time, is such an insurmountable problem. there may be a smaller subset related to national security, for instance, or other things where it is not practical to ask the president to recuse himself,

and at that point you start to look at divestment. i agree with kathleen. you become the leader of the free world and it is a life-changing event. jimmy carter had to sell his peanut farm. he chose to. he chose to sell the farm. george h.w. bush had many business interests and he divested from them, so i do not think it is too much to ask and i think that there is a way to expect presidents to come up with a plan. and i do not think the law should micromanage what the president does. i think the president with the people advising him or her should just be responsible for doing that. kimberly: that anticipates my next question. why should the law not micromanage what the president does, and when we have proposals

put forward, say there is a complete shift in the congress and administration ahead, say that we will put all the ethics rules down and make sure none of this happens again? what is the risk of over regulating? daniel: i would actually say one of the issues is the more you get into congress micromanaging the president's finances, i do think that there is constitutional concerns raised. i think presidents are citizens and is subject to the rest of us. the conflict of interest law is a broad prohibition, so i don't believe there are constitutional concerns with subjecting a president to conflict of interest law, but i'm not convinced if you are starting to have congress describe what the president can and cannot do. like every other person in the government, the president should have the obligation to comply and figure out how to comply. as a practical matter, jimmy carter probably did not need to sell his peanut farm.

it is nice you did. maybe sad, i never asked. but i do not know that we need to force people to do that. i think that there is some truth, as you noted, of not wanting -- i'm roll my eyes a little bit at the not wanted to dissuade qualified people from running. if it is really that big a drag to become leader of the free world, fine, do not do it. [laughter] but if it generally does not impact the public interest, or if there is a less burdensome way to solve the problem, then i think it is worth exploring that option. i understand that president trump has built a business that he is very proud of and there are parts of the business that probably could be solved by recusal instead of divestment, and there is no reason not to let him do that if it will let him solve the problem. kimberly: kathleen? kathleen: i want to get into some of the nitty-gritty of the financial conflict of interest statute.

and walter and dan may shine some light here that would help us understand how it would actually apply to the president. there are some matters that are so broad in scope that they don't -- they are not even reached by the financial conflict of interest statute. back in 1990, i believe it was, george herbert walker bush's administration sought a legal opinion from the justice department office of legal counsel to find out whether the u.s. response to iraq's invasion of kuwait implicated the financial conflict statute for members of the cabinet and others who had financial holdings and oil companies, and the office of legal counsel, the justice department, indicated that the u.s. response to the iraqi invasion of kuwait was so broad in scope that the financial conflict of interest statute was irrelevant.

it did not have to be considered by the cabinet members. and so what i want to flag is the possibility that it may be that most of what a president does is so broad in scope that the financial conflict statute has no application at all to those policy proposals and decisions. on the other hand, i will tell you that if the president is getting involved in prosecution decisions of the justice department, that is something narrow enough that absolutely the financial conflict statute should apply. but the president should not be involved in prosecution decisions. so i guess it would be interested in hearing from dan and walt on whether you have a handle on what percentage of the president's actual activities are likely to implicate the financial conflict statute that applies to the president? walter: since we have an

audience probably with a wide range of backgrounds i will try to stay high level, but one of my concerns about applying the existing statute to the president is 18 section 208 and we just refer to it as 208. 208 is a very blunt instrument that is at once overbroad and too narrow. as you said, there are some types of things that are covered by it and some that are not, and it is the difference between a matter, whatever that is, is not covered and a particular matter is covered. and finding the line between a matter and a particular matter, what makes it particular enough, the definition is a matter that is focused on the interests of a discrete and identifiable class of persons or parties, but in practical application there are people who spend all day trying to find out -- all day everyday

try to figure out what is a particular matter and where is the line between matter and particular matter, so some party matters are very narrow, like litigation, like the prosecution you mentioned. but others are broader. for instance, regulation affecting any industry. if it affects just one industry, members of that industry are a discrete and identifiable class of persons. so you get into a debate about whether new regulations for aspirin, this was an opinion, would be a particular matter. some people are arguing that it will raise the price for all consumers and all consumers are not a discrete and identifiable class of persons, but the decision was it focuses on the interest of the manufacturer, so it is. that is a relatively clear-cut example. it gets really weird and drops off the edges at oge, because there is a more difficult question filtering up the

pyramid of 4500 ethics agency as officials. we have all the most confusing, vague, right on the edge of the line, to the point where the staff would lose faith in to say, does any of this mean anything, because it could be one way or the other. i would remind them that 80% of the time it makes sense, but we are dealing with high-level officials involved in unusual things and we're living in the 20% where it is vague and probably more of the 5% where it turns into quantum mechanics. part of the problem is the temptation that exists with the president who is behaving, who is carrying out his conduct in the public eye more than any other government official, to -- there would be great pressure to define that so narrowly, anytime there was a debate the white house would come out with detailed explanations of why it is not a particular matter and

it would probably co-op the department of justices legal counsel to engage in mental gymnastics to do a post hoc rationalization on what the president did is ok, and it then starts getting the conflict of interest statute for everyone else, so i worry that at the top level these vagaries can be exploited by a president and then ultimately undermine the law that applies to everybody else if the same law were to apply to them. and i could give you examples, but i would wind up confusing myself and you, because we just had had constant debates. including for instance, after about 2007 or 2008, we worked in the department of justice and they concluded that a trade negotiation between two countries is not automatically a particular matter, even though there are two parties, meaning the countries, because they are whole countries and you have to look at the subject matter and if it affects all aspects of the

economy or a number of different sectors, so it is not a particular matter, even though the thing that an individual government employee might work on is affecting only one industry. so a president could not manipulate trade negotiations to his or her benefit and not be covered by this particular statute, where in other areas they are overly covered because of the broad reach of that section. so it is too broad and too narrow. this statute requiring recusal only addresses conflicts of interest in the sense that a conflict of interest might influence your decision making, so you stay out of the matter, you recuse, and therefore, you have resolved the conflict of interest, but it does not get at efforts to curry favor with the president by funneling money to them, which we see with people being willing to pay double the membership fee over the past year at mar-a-lago or the d.c. trump international hotel making a profit in its first year when it was expected to lose money as

most hotels do in their first year, not because it filled every room, but because the people who want to be there, to rub elbows with white house officials who hang out in the bar there, or the president who makes appearances there, are willing to pay well above market rate for the same rooms. so you have the danger of buying access or currying favor, in addition to conflict of interest, and that is why among other reasons, including the technical reason about the damage it might do to legal interpretation, i do not think recusal and subjecting the president to the normal recusal statute is the best option. the two options that i think are really more realistic is either the divestiture statute, because the conflict of interest statute is a recusal statute, meaning that you have to stay out of things and not divest things, but divestiture in stronger -- is stronger medicine than recusal and so you would have more exceptions for the president and i could live with that, but i still think the

better thing is to turn us back as a culture to voluntary compliance by rejecting it into the political process at a point when people do not have to switch parties, because a lot flows from the president's behavior. when the president has a disinterest in government interest, it undermines the public's faith in government and also the government officials' faith in government and it tempts them to misbehave, because if my boss can do it, why would i be held to a higher level standard then my boss? the higher up you go, the more power and influence you have, so the stricter the rules should be. if my boss can engage in nepotism and conflicts of interest and misuse his position to advertise his properties, why should i, who has some much less authority than him, behave? that becomes the thinking that starts corroding and corrupting government at all levels. and so if we can get back to being a country that is a model

for all the rest of the world, and we see delegations coming to oge to study our system, i do not think they admire us anymore, and we won't get there necessarily by legislation or as least as comprehensively as we would by creating an environment where people feel pressure to do the right thing. i do think you have to acknowledge and you alluded to this that there is a bell unringing problem. daniel: it would be nice to get back the norms of george h.w. bush and that would be great. i don't know if anyone has a solid idea of how to do that. and i think that the law is not a perfect substitute, but perfect cannot be the enemy of the good. i happen to think that the brennan center has proposed and extending conflict of interest

law to the president. we have also proposed exceptions we think would be appropriate for the president and there may be others. i tend to think for instance that when the president signs legislation that should be accepted from the conflict statute, because the president's role in the legislative process is indispensable and he or she cannot really do anything without congress, so i think that particular function should not give rise to conflict. i think maybe a materiality threshold, which is a monetary threshold below which we consider it not relevant, which a lot of states have in their conflict regimes, which might also be appropriate. but i think the devil is in the details. it's not perfect, but if we just say we are getting it back to these norms, i am not sure in an era of hyper polarization, where

people are very loyal to their party, i don't know that's going to happen. kimberly: i want to say that we will go to questions pretty soon, so if you have one, we do have a microphone setup right over here. i think we could also pass it if that is better as well, so just think of -- we also have -- sorry, we have one on either side. so just think of that and you can head to the microphones to ask your question. i will ask one more, as a reporter, i think about not just the president but other people and whether there are reforms needed there. can you talk a little bit about other people? should we be concerned about the ivanka trump wearing her own close or traveling to china when she has patent deals there? should we worry about jared kushner going to the middle east to affect piste when there are israeli investors and his companies? who else should we be worried about? walter: i think the jared kushner any ivanka trump problem stems from the original sin of nepotism that was brought into the white house because it is so

uncommon for white house officials to retain as many assets as they retained, but nobody in the white house was willing to lean on them as hard as other officials, because these were the president's own relatives. so i think that we have a nepotism problem, but i think we don't see other people retaining that level of financial interest. but i do think the concern that dan and kathleen expressed about privately held companies, that i agree with, is universally applicable to everyone. and is a dangerous gap, and i do think it makes sense to treat at least family privately held companies, or maybe possibly privately held companies, differently than publicly traded companies. kimberly: kathleen? kathleen: i think that is a

really key reform. this came up actually a few months ago when there were news stories related to -- i think it is referred to as the paradise papers -- and the secretary of commerce and a member of congress who had been involved in the confirmation process, i believe, did not realize the secretary of commerce was essentially in business with russian oligarchs and putin's son in law. he didn't realize that because that information was not apparent on the face of these disclosure forms. however, if congress were to clarify and propose and get adopted enhanced disclosure obligations, then someone like the secretary of commerce and others will have to disclose not just their ownership of llcs but the key customers of those llcs and the financial relationship of those privately held llcs so that both the conflict of

interest, vetting people within the executive branch, and the congress and the senate would have access to information that they need. daniel: there is one dimension of this. and kathleen you have written eloquently about this. there is a temptation every time that you have -- after watergate for instance, to have ethics reform, which is why the attorney at doj, do not get a drink with somebody who will buy it for you because you may have have run afoul of some rule. i do think that we need to be mindful of the fact that ordinary, federal employees are already quite regulated. this is a situation that calls for targeted solutions and thoughtful solutions and possibly more to do with the machinery of administration enforcement with og than it does with another way of omnibus

ethics reform that will impose more restrictions on every low-level government employee. it is something i really came to by reading some of your scholarship, and i think it's an important point that we need to keep in mind. kathleen: thank you. i want to acknowledge how rare it is for scholarship to have any kind of impact that all. [laughter] daniel: i have to agree that that's a really good point. for example, we need smart reforms. walter: right now, a staff attorney at epa could not go and represent on a pro bono basis of veteran who needs help with the social security administration or the v.a. because there is a criminal conflict of interest statute that extends to the entire government and keeps them from representing people. so i have never liked that application where it is just your agencies you have influence

over, and so i think we have to be careful that there could be a wave of reforms where people think more is more and they slather on a solution that is like a sledgehammer when a scalpel is needed. kimberly: we have a question right here. >> thank you. >> i would really like to begin -- my name is -- and i admire the courage with which he stood up to authority and you inspire many of us in the room. my question is really following on what kathleen said about this whole issue of llcs. it is not just really the llcs that are in the financial disclosure forms. you really cannot understand the liabilities. we have seen articles in buzz feed news last week and "usa today" which really points out that the majority of the trump organization's real estate sales

have been through these secretive llc companies, especially in the time since he became president, and we do not understand really who the true beneficial owner is behind the shell companies. we really can't un-package who is try to buy influence. so in that sense, number one, would better disclosure help? and is disclosure enough? i and beginning to think that after listening to all of you that divesting completely is the answer, given all these questions. kimberly: i want to give them a chance to respond. go ahead. you can start, kathleen. kathleen: the buzz feed articles and "usa today" are about these transactions and they really identify key problem that affects us in terms of government ethics and it is a much broader problem societywide in the united states, regarding the lack of transparency with regard to real estate

transactions in particular, not just llcs, but the potential for money laundering and so on. so i guess -- well, i absolutely think that we need to be cautious about layering on additional government ethics standards, because more is not always better. i will say that this area of real estate transactions and the lack of transparency with regard to llcs generally, not just in regard to government officials, is a really key problem that we need action on. walter: i think that is right. i haven't heard any proposals from anyone that would require a company to disclose its customer so i'm not even sure there is a proposal out there that would get at this, yet as you point out, it's a very serious problem that we don't know who is finally moaning -- funneling money to the president or what purpose if they are paying moffett rate or above or what the thing is actually worth.

this again goes back to my consent that i don't know if you solve the problem with that divestiture, because you have so much potential for things to flow to a president, particularly through these privately held companies. i would be less worried if they held stock in gm, and gm was selling off assets and property. i don't know if i feel the need to know who they are selling them off too, because it is a big enough company that a don't think decisions are being made to benefit a president, but these privately held companies that he holds are selling to privately held companies that obscure the buyer and you already have, the articles you mentioned, and i think that people missed it because i did not see it getting as much coverage as it should. a group called global witness

work with reuters to release a really damning report on money laundering activities. i don't think they ever alleged he was personally involved in money laundering, but that this was going on in these types of businesses seems to be the implication of the report. now we have a president who is at least adjacent to this activity and it makes him vulnerable to blackmail or funneling of money to him and we have no way of gathering the information because these privately held companies are not required to disclose it. >> i just want to get to one point. kimberly: very quickly, one point. >> there are bills in congress that address anonymous funding, so we need to pay attention to that issue, and secondly the real estate issue, acquiring real estate, the companies, agents and otherwise, it is due diligence so it does not require an act of congress. that is just rulemaking by treasury. kimberly: did you want to talk?

daniel: two things, one is the llc problem, the brennan center is based in new york and the llcs are central to new york's crisis of corruption. they were central to several large scandals. i do believe in transparency and i do think that some combination of transparency rules and recusal rules or divestment rules can be effective. i want to come back to not letting the perfect be the enemy of the good. i do not think that transparency is meaningless. i think it can make a big difference. kimberly: it was my fault for not saying the questioner should say who your name is and make it a one-point question. >> my name is bill and i actually have two questions. one is easy. the office of government ethics renders opinions. are they compulsory or voluntary to follow? can somebody explain the rationale of the gsa decisions to allow the top organization to maintain the tenant agreement at

the post office department? walter: the first question is a lot easier than the second so i will dive in on that one. oge's opinions are interpretive, so it is not a matter of compulsory or noncompulsory. only g is taking the position that this is what the law means, at least in terms of legal opinions. it also issues some program advisories where it gives instructions to agencies and it has taken the position that he can direct agencies to do things, like produce documents or change the way that they track things, or we recently required them to start using the electronic financial disclosure system, unless they applied for a waiver to that. but in terms of the legal opinions, those are interpretive and oge coordinates with the department of justice when it involves the criminal statutes. and oge cannot bind the department of justice, so they

could still prosecute somebody, but you could talk a prosecutor out of prosecuting if you were able to say i relied on this opinion, and so as a practical matter, they have the effect of being compulsory because they are your best guidance on what the law is, but they are not written as orders to go and do something. kathleen: on the gsa question, regarding the interpretation of the lease for the trump hotel, the gsa interpretation is nonsensical. [laughter] >> that is a good word for it. kathleen: i would like to acknowledge the decision was not actually -- to me it's interesting. it was not actually written by a

lawyer at gsa. it was written by a contracting official. i want to emphasize the non-sensibility of it would not depend on a law degree or any kind of legal education, but on the other hand, i am intrigued by the fact that it wasn't -- i mean, i'm a teacher of legal ethics, so perhaps for that reason, i am intrigued by the fact it was not touched or not apparently touched by a lawyer but made by a contract officer. it just doesn't make any sense because it's says the president would not benefit from the lease because he won't actually receive the benefit until after he leaves office, but to suggest that is not a benefit is nonsensical. daniel: i am math illiterate, completely, and finance illiterate too, god help me, but even i know what a capital account is and i know because just because you don't take distributions from your capital account does not mean it is not yours. if the profits from the hotel are going into his capital account, the account is going up and asked kathleen said, basically because the money would not actually go out until after he leaves office, he was not benefiting.

walter: i would add an adjective. instead of nonsensical, it is surly. they really mocks what it takes as the outside world lack and white reading of the very plain language. just a quick funny story. shortly before the inauguration, gsa was issuing press statements saying that oge decides ethical issues and not us, and i got so mad that they were sicking the press on us over this, so i called them up and said, if you want us to make that decision, i -will do it today, so unless you're ready to make the decision, stop issuing these purse releases that we have control over this outcome, because if i have control over it, i know what i will decide. and then they changed their press statement. kimberly: go ahead. >> thank you for your presentation. i'm thinking that ethics rule not only applied to the current president and the conflict of interest directly about issues,

but i'm thinking for all professions, if they are a responsible and they are operating outside ethic rule, they should be prosecuted, too. i just wonder is there anything in our government that a professional, especially the doj, if they do not prosecute the right person, that means they are benefiting indirectly, so this to me is a violation of the ethics rules. is there anything that somewhere people can speak up and say it has got to stop? walter: i think your sentiment is right that they should stop, but unfortunately or fortunately, it's a question of the difference between common sense ethics and the legal

statutes that create the framework for ethics. unless there is a specific criminal law you have violated, you can't be prosecuted. interestingly, this administration itself acknowledged this concept in a letter that mick mulvaney issued after secretary price lost his job for horsing around on luxury jets. and they had a line in there that said just because it's legal doesn't mean it's right. and i almost keeled over laughing, because this is what i had been saying to this administration all along and they had been telling me i was out of line. they are just not living up to it. so i think maybe the answer is just because somebody is not going to be prosecuted is not mean the behavior is acceptable. and i meant to say this earlier with something else, but i think it relates here with regard to

prosecution, because one of the areas we have seen the norms break down is with the president interfering with the department of justice, whether it is interviewing applicants for the districts he has properties in, or having the white house counsel go out to find out if there is a secret award, or calling for the prosecution of his rivals -- um, there is a real susceptibility to political influence on prosecution in our country, so i think that we benefit from this line where you can't beat prosecuted -- be prosecuted just because it's wrong. you have to actually violate any statute, because the potential for abuse in the other direction would be terrible, because then the president is in charge and he can decide who he does not like and have jim acosta from cnn prosecuted because he asked the hard question that was on everybody's minds. interestingly though, in the

early to mid-2000, oge is part of these international anticorruption mechanisms and some of them do reviews of each other's countries, and the feedback that the u.s. kept getting was prosecutors do not have enough independence in our country and are too vulnerable to political influence. at the time, it made no sense to me, and i thought that sounded crazy. i think we now see what they were talking about when the international community was expressing concern that the criminal investigative apparatus of our country could be abused for political reasons, because these prosecutors report to political appointees and ultimately to the president. so i think we want to be careful not to go necessarily beyond the balance of law when it comes to imposing punishments, but in terms of demanding that people live up to the ethical traditions, i do not think that is too much to ask. kimberly: i want to get to the next question, a quick question

if you can. let us know who you are. >> i'm a reporter with fcw. are there two sets of rules for the bureaucracy and politicos in the white house? walter, you touched on this. what concerns do you have or how long before this sort of way the trump administration operates ethically trickles down to procurement officers or lower-level government employees? walter: there are two sets of rules, but the good news is that the rules that apply to everybody and there are a few additional rules that apply to the higher level political appointees. while the president and the vice president are exempt, political appointees have all the normal rules plus some bans like on outside income. so that's ok. we don't have this problem except for the president and the vice president being exempted from statutes. in terms of individual procurement officials, i stopped

confidence that all the normal apparatuses in place for career level employees are so far holding with no administer -- indication of change. there's a workforce of millions of people that you will have the occasional bad eggs. i've not seen widespread trickle down to the violation of procurement rules. you can have bid protests and their actual enforcement mechanisms where the injured parties can hold the government accountable and undo a contract. i think that is unfortunately one of the most sinister things out there is this phrase deep state because what they are calling deep state are people who have a firm belief in the rule of law and the structures in place to protect the integrity of the government, like procurement officials, who are not going to obey instructions from above to taint procurement, but instead are going to insist on the normal

rules. if any of you are fans of "the office," it's like michael scott complaining about toby being the wet blanket and saying that we have rules. i think that denigrates what is actually one of the best things about our government is that we have people who no matter what are going to follow the rules, even if their bosses are pushing otherwise. kathleen: if i can respond, i want to underscore something that you said earlier. when you are talking about the pressure that would be placed on the justice department to interpret the financial conflict statute in a really lax way, if it applied to the president, we have seen that dynamic. we have seen it with regard to this current interpretation of the foreign emoluments clause. because the justice department has taken a really strong line, up until the trump administration, that the clause absolutely prohibits for value exchanges between a government official and a foreign government, prohibiting the u.s. official from receiving

compensation for services provided. no indication it is just limited to gifts, but now in litigation, the justice department, now the foreign emoluments clause is in litigation and at issue, it interprets the emoluments clause more narrowly than it has before, so that it wouldn't apply to for value exchanges with government officials, and that is not limited to the president. that weakens the clause as interpreted by the justice department to all federal officials. daniel: that illustrates one of the things in our report that we pointed out. the justice department in particular -- i do not think is the best enforcer of these roles. this is why i think that you need to have some sort of independent ethics regulator for a variety of reasons. the justice department is not well-suited for this. we have a couple minutes left.

>> i'm going to pick up on this point because having served at agencies. has been heard of these officers participating in with their bosses, it can get uncomfortable to say the least. that is one of the reasons i am thoseou mentioned numbers. i am wondering if you think it about the director to apply to those folks at the executive branch agencies. approve actions senior actions, that those officials then used as cover when justifying when they

did what they did. >> i think that puts a nice nuance on it, i don't think it is trickled down. say procurement decisions are the very last thing that will be affected. private companies consumed and they get cheated out of a contract. on the other end of the spectrum, you have rules where there is no outside oversight. the travel rules had some outside subject. they worked together to say it is ok to take this federal site luxurious jet to go the distance from washington dc to philadelphia. even though they had to drive an hour to the airport and the drive is only 2.5 hours, so we could save money by sending you them by an uber. so we have seen some corrupting

influence, because these people assume that they operate in darkness. my group filed a foia request for gsa for the travel reports on because all agencies are required to file them and gsa give the sleaziest response, they said, you have to request it from each of the agencies, even though we haven't all here, and denied the request. it was despicable. so i think that these people that they were going to operate in darkness, and then a couple of reporters from politico, they were sticking out in airport and caught secretary price, and suddenly these decisions are exposed to the public and now to agencies have said that the documentation is in adequate and these people just said, yes, i think it meets the standard, and they just -- in the standard without justifying it. so i think there is real danger for that. i even saw a distinction among

the ethics officials where some stood their ground and tried to apply the same standards to these incoming appointees, who had gotten the message that ethics does not matter. and others just cave like what ever i cannot think of a good analogy, whatever caves. and i found myself having to give them pep talks or snarls, orbiting my fists, whatever i could do to beg and plead them to hold these folks to the same standards that they held people in the bush administration, and in the obama administration, because they were so intimidated by a perceived closeness of a group of people who asked the department of energy to provide a list of everyone who had worked on climate change issues and feared retaliation. i think to answer your question, it would be nice if there were

more protections along the lines of whistleblower type protections, and i do not have my mind around exactly how we would enforce it. one way might be for each individual requirement, create some transparency provision so that police are not operating in darkness. one thing that i proposed to congress was just to have gsa post all of these travel reports on its website and require a little bit more information to be put in there, like why did you choose a charter jet as opposed to a first-class ticket. i think the key is to look for enforcement mechanisms or at least transparency mechanisms. >> one of the accountability mechanisms that could come into play here, is whistleblower protection. from an officials disclosure that such a proposed form violates the ethics standards, could well qualify for

whistleblower protection under the whistleblower protection act. that is one of the things i think we need to look for is to make sure that there are such protections. there are actual whistleblowers that we have seen that continues. >> the last word is yours if you want it. >> we are wrapping up. >> first of all, i want to again thank my co-panelists on behalf of the britain center for participating in this. i think it was a really wonderful session. building off of that, i want to say two things. one is that these issues that have come up with this administration are not related. whistleblower protection, ethics, limits on presidential power, it is important to think of it as a holistic package. one of the things that is going

to be a challenge for people in the years ahead is trying to, like the dam that sprouts many leaks, figure out how to tackle the whole as opposed to its various constituent parts. there is a silo in your tendency that i think people are going to emphasize again, we at the brendan center are very committed to the idea that the perfect cannot be the enemy of the good. none of these solutions is without drawbacks. the debate continues, you have to factor in that nothing is going to solve all of these problems, but at the same time, you can make progress. the last thing i will say is that, again, for a lot of this discussion we have talked about president trump. our democracybut is bigger than any one public official.

these are rules that will be with us long after this president is gone and the next president as well. whatore we can think about is in our country's long-term interests and divorce it from anger and what you might perceive as the particular excesses of this administration, the better. >> on the half for the brennan inter for justice at nyu d.c., thank you all in d.c. for joining us live in the audience, as well as those that joined us via livestream or c-span. i would like to ask those of you who are here in thanking, one time, waltz, kathleen, and dan for this production. [applause]

>> two days before president trump delivers his first state of the union speech, watch past state of the union addresses on sunday at noon eastern on american history tv, featuring president ronald reagan in 1982, president george h w bush in 1990, president bill clinton in 1994, and president barack obama in 2010. >> raising taxes will not balance the budget. it will encourage more government spending and less private investment. raising taxes will slow economic growth, reduce production, and destroy future jobs, making it more difficult for those without jobs to find them, and more likely that those who now have jobs could lose them. to try andot ask you balance the budget on the backs of the american taxpayers. [applause]