DRAINING WHAT SWAMP? HOW DOES STOCKING THE SWAMP SOUND?

PhotoCred: Ben Garrison

PhotoCred: Ben Garrison

Of all the bogus promises Donald Trump made in running for President, the pledge he would “drain the swamp” ranks as the most ludicrous in light of how he’s performed in office. The “drain the swamp” promise concerned, of course, cleaning up the cozy relationship between lobbyists and government regulators and reducing the influence of those dispensing “goodies” to government officials in exchange for favorable regulatory actions.  Trump pledged he’d name cabinet officials and staff of high integrity.  He even said he could best fix the problem because his years of personal involvement in the influence peddling industry taught him the lay of the land.  Presumably, “draining the swamp” included guarding taxpayer money from excesses of the administration’s own officials.

It hasn’t worked out that way.  Ethics lawyers in recent Democratic and Republican administrations, Norman Eisen and Richard Painter, call Trump’s first year in office the “most unethical” in modern history.  Anyone who thinks this view sounds like hyperbole or merely the ranting of Trump’s political opponents should look at the facts.

CABINET OFFICERS

*Tom Price --- the former Georgia congressman served as Health and Human Services Secretary for only 231 days before resigning in the wake of allegations he spent over $1 million in taxpayer money on travel on private jets and military aircraft.

*Ben Carson --- Carson remains on the job as Secretary of Housing and Urban Development, but questions linger about his order in late 2017 of a $31,000 dining set for his office.  A career HUD official filed a complaint after she said she was demoted because she refused to approve more than $5,000 for office decorations. 

*Scott Pruitt --- any day, events could force Pruitt out of his job as Environmental Protection Agency chief.  Trump said Pruitt has done “a great job” and has been unfairly targeted by liberals upset with his policies.  Still, Pruitt has been credibly accused of a long list of ethical transgressions, including (1) renting a room in a Washington condominium for the absurdly low price of $50 per night from the family of a lobbyist with business involving the EPA; (2) awarding large raises to administrative staffers the White House wouldn’t approve by using a special provision in the Safe Drinking Water Act usually reserved for hiring experts with special scientific training; (3) assembling a 20 person security detail at a cost of $3 million dollars; (4) spending $42,000 on a sound proof phone booth in his office; and (5) using tax dollars to fund first class air travel while flying coach on personal trips, putting the lie to his claim he need first class accommodations for security reasons.

WHITE HOUSE STAFF

Rob Porter --- the former Staff Secretary’s domestic violence transgressions have been well chronicled in this space and need no further explanation.

Lori Mashburn --- this Interior Department liaison apparently violated a specific ethics pledge she and other White House staff members signed promising not to involve themselves in the activities of their former employers  or clients.  Mashburn apparently attended a Heritage Foundation event in clear violation of the policy. 

Jared Kushner --- the President’s son in law, senior adviser, and Middle East troubleshooter denies wrongdoing, but credible reporting exists indicating he failed to disclose all required financial information (he still doesn’t have a permanent security clearance), mixed government and private business in his dealings with the Chinese, and participated, with his wife, the President’s daughter, in meetings with high ranking Japanese officials while she was negotiating with a Japanese company on a licensing deal for her clothing brand.

PRESIDENT TRUMP

The President’s transgressions begin with his continuing involvement in private businesses, giving at least the impression he benefits financially as a result of holding office.  Unlike nearly all previous occupants of the White House, Trump didn’t divest himself of his significant business interests before taking office, nor did he place them in a blind trust.  This opened the door to actual impropriety as well as its appearance.  The Trump Hotel in Washington, for example, reportedly has become a preferred destination for foreign officials doing business with the United States government.  However much money Trump and his family receive from lodging fees and meal costs paid to the hotel by these officials, the potential for influence peddling appears obvious.

Trump’s Mar-a-Lago property in Florida doubled its membership initiation fee to $200,000 after Trump won the 2016 election.  The resort’s managing director said Trump’s presidency “enhances” Mar-a-Lago membership.  Trump hosts events there for members at which the major purpose seems access to him.  Does anyone doubt Trump’s occupancy of the nation’s highest office contributed to the membership fee increase?  The fact membership has been reported nearly capped out almost certainly reflects an interest in attaining access to Trump.

Other ethical lapses abound in the Trump administration.  Make your own judgment about how bad they are and what Congress, the judicial branch, and the nation should do about them.   What do you recommend?

SEXUAL HARASSMENT AND DUE PROCESS: From Easy Cases to Hard Ones

A little while ago we started exploring sexual harassment.  We acknowledged the discussion must begin from a premise of intolerance. To repeat: No woman

(or man) should have to endure unwanted sexual advances to get a part in a film, work in a bakery or congressional office, pursue educational opportunities, or serve in the military.  We recognized, though, that’s not the end of the inquiry.  After discussing definitions and recent high profile cases, we noted one of the difficult questions surrounding sexual harassment – balancing due process and fairness concerns with the need to encourage victims to come forward.

 

Rob Porter, Rob Porter, Rob Porter

For a while, the case of White House Staff Secretary Rob Porter

gripped Washington.  Porter resigned, or was fired, depending on the correct interpretation of statements by Chief of Staff John Kelly, after reports surfaced that Porter physically abused his two former wives and, therefore, couldn’t get a permanent security clearance.  The FBI investigated Porter and apparently told the White House during the summer of 2017 what it found.  Porter, who denies the abuse charges, obtained temporary

clearances and remained on the job until a British newspaper published the domestic violence allegations.  The FBI investigation likely turned up a restraining order one of the women obtained against Porter and a photograph showing one with a black eye.  Amazingly, reports surfaced this week that the White House is considering rehiring Porter.

Kelly first claimed not to have known about Porter’s issues and defended him as “a man of true integrity and honor.” Kelly reportedly urged Porter to ride out the storm.  After the photo surfaced, however, Kelly asserted Porter “was gone forty minutes later.” This account conflicted with FBI Director Christopher Wray’s congressional testimony that the Bureau updated the White House on its findings about Porter three times in 2017.  Sources said the July 2017 report detailed the spousal abuse allegations, meaning Kelly probably knew about Porter’s alleged transgressions long before the British newspaper report. 

 

President Trump lauded Porter’s work. “He did a very good job when he was in the White House,” Trump told reporters.  Journalists and critics noted the President said nothing about the victims of Porter’s alleged conduct.

No Entitlement 

Because no one has a constitutional right to work in the White House or any other agency requiring a security clearance, we have no trouble concluding Porter was treated fair and, therefore, received what we’ll call due process.  The FBI investigated the claims against him and reported them to the agency involved – the Executive Office of the President.  Leaving aside the question of when it acted, having received that information, the White House properly dismissed Porter (or accepted his resignation).  Porter’s alleged actions made him unfit to handle sensitive, sometimes classified, information.  Abuse charges, aside from the immorality and deficient character they potentially demonstrated, left Porter susceptible to blackmail, not to mention criminal and civil process.  We have no difficulty in saying (1) he had to go and (2) he was treated fairly.

What, you ask, about his denials?  Porter retains his presumed innocence in any criminal proceeding and he can require that his accusers prove his culpability by a preponderance of the evidence in civil cases they might bring.  The information developed in the FBI probe likely would become part of those proceedings and the fact finders would consider all the evidence. But that’s different than whether he gets to work at the White House.  Neither Porter, nor anyone else, is entitled to a White House job.  We believe Porter got what amounted to due process and coming to that conclusion wasn’t especially difficult. 

Donald Trump, Donald Trump, Donald Trump 

If Porter’s alleged transgressions cost him appointment to a White House job, partly because of the risk of someone blackmailing him, what of credible claims of sexual harassment against President Trump?  Aren’t the claims against him just as credible as those against Porter?  Isn’t the President as vulnerable to blackmail as Porter?  Should the fact of Trump’s election as President put the allegations against him in our political rear view mirror?  Must Trump’s fate await the outcome of the Mueller investigation?  We’ll have more to say about these important questions later, but for now, we close the book on Porter.

There are other kinds of cases  

Porter’s case differs from others the country has seen or will see in the #MeToo era.  Many people charged with sexual harassment don’t have to undergo FBI background checks.  The facts never get developed in the same way.  What’s appropriate in those situations?  Many sexual harassment incidents occur in the private sector, in jobs that don’t involve the public trust.  Do the standards applicable to government positions apply the same way there?  What’s the difference, if any, between big corporations and small businesses?  Does the same regime apply to the corner mom and pop grocery story as to IBM?  What about conduct occurring outside the work place that still impacts employment?   What process is due when a man (or woman) allegedly misbehaves toward another person in a social setting, but an employer or business contact must decide a response?

Some cases mostly concern how the public views the alleged abuser/harasser. What happens to the service station attendant, plumber, teacher, or other professional who aggressively pursues sexual conquests?   What constitutes due process or fairness in those situations?  Such instances, we think, present harder cases than the Porter affair.  Please give us your thoughts as we tackle those issues.     

             

Sexual Harrassment: Beyond Being Against It

Few issues have stirred up politics, business, entertainment, or general culture like sexual harassment has recently.  The #MeToo movement sprang up after sexual misconduct revelations against Hollywood mogul Harvey Weinstein.  Allegations followed against television hosts Matt Lauer and Charlie Rose, Minnesota Senator Al Franken, Michigan Congressman John Conyers, and Alabama senatorial candidate Roy Moore.  Two Presidential aides, speechwriter David Sorensen and Staff Secretary Rob Porter, departed the White House after their former wives charged them with domestic violence.  Meantime, #MeToo gathered momentum as actresses wore black to events like the Golden Globe Awards ceremony in support of the movement, which encourages women to come forward and report incidents of sexual harassment.

No woman or man should have to endure unwanted sexual advances to get a part in a film, work in a bakery or a congressional office, pursue an educational opportunity, or serve in the military.  Hopefully, we can agree on that basic premise.  We state unequivocally our intolerance for any form of sexual harassment.  

Anything past that simple statement, however, puts us in line for sociological, political, and legal debates about (1) the definition of sexual harassment; (2) the appropriate forums for sexual harassment victims, that is where do we decide the fate of alleged harassers; (3) what differences do or don’t exist between sexual bad acts; and (4) due process rights for alleged perpetrators.  Despite the complexity, we’ll dive briefly into each topic as a prelude to further discussion in coming weeks and months. 

What is it, anyway?

The Equal Employment Opportunity Commission (EEOC) defines workplace sexual harassment as “unwanted sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature.” The Commission notes that unlawful conduct creates “an intimidating, hostile, or offensive work environment.”  Some sexual harassment claims turn on proving a quid pro quo in which continued employment, career path, and/or pay depended on willingness to submit to sexual demands.   

The EEOC scheme is good as far as it goes, but it doesn’t cover every situation.  Men who make unwanted advances on dates, for example, may not have job-related power over women.  The Catholic Church’s sex scandals involving priests and children don’t fit into the EEOC paradigm.  The workplace definition doesn’t work in all instances, the reason Henry argues we should focus on sexual misconduct.  Sexual harassment, for example, seems too tame a term for the allegations against Moore.  Though he denied the charges, many voters apparently believed the assertion he molested young women, some mere children when he allegedly initiated intimate contact with them.

Who decides?    

In the Rob Porter case, White House Chief of Staff John Kelly privately encouraged Porter to ride out the storm and even issued a public statement declaring him a “man of integrity.” Kelly, however, likely knew of the allegations for more than a year.  Only after photos surfaced showing one of Porter’s alleged victims with a black eye did Kelly back off support for Porter.  Utah Senator Orrin Hatch, apparently without knowledge of the facts, contended Porter shouldn’t quit and labeled his accusers “morally bankrupt.”

The Porter, Moore, and Franken cases raise the question of how to resolve sexual harassment complaints involving office holders.  Is the voting booth enough, as in Moore’s case?  What role should disciplinary mechanisms of legislative bodies play?  That might have been the vehicle in Franken’s case until he resigned under pressure from some of his Democratic colleagues perhaps seeking political advantage in the public relations war.  How much does it matter if the alleged transgressions occurred before being elected to office, as in the case of President Trump?  How do we balance the rights of the alleged victim and the electorate’s freedom to elect who it wants, despite harassment allegations? Right now, like most people sorting this out, we have more questions than answers. 
             

Are all Sexual Bad Acts Equally Bad?

Kirsten Gillibrand (D-NY), a Senate leader on sexual harassment issues, recently declined to distinguish between sexual harassment and sexual assault saying, a line must be drawn and “none of it is okay.”  The implications of her view led Bill Maher, host of "Real Time with Bill Maher" to push back.  He said, “Justice requires weighing things.  That’s why Lady Justice is holding a scale and not a sawed-off shotgun,” adding, “I’m down with #MeToo.  I’m not down with #MeMcCarthryism.”

Senator Gillibrand’s position appears to make any number of sexist acts someone finds offensive worthy of scorn.  She said, “None of it is okay.” In the interest of not trying to take on too much right now, we’ll let Gillibrand and Maher speak for themselves, but recognize that their conflict marks an important flashpoint in the debate.

Guilty Until Proven Innocent or Just Guilty

Related to the pushback point remains the question of what happens to people accused of sexual harassment?  Is the mere accusation of sexual harassment a death sentence for the alleged harasser’s professional life?  In the interest of encouraging women to come forward with their stories without fear of being disbelieved, should a presumption of guilt attach?  Or, do we follow the traditional presumption of innocence until proven guilty, as in every other criminal or quasi criminal matter? What process is due in sexual harassment situations?  What is fair?  
   

These points only scratch the surface on this issue.  We’ll have more to say later. Perhaps you have thoughts now – do share!