Richard Painter on Government Ethics, Conflicts, and the Constitution
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Richard Painter on Government Ethics, Conflicts, and the Constitution

October 15, 2019

The people will not have confidence
in their government if the reality or even the appearance is that government
officials are using their position to increase their financial wealth Between 2005-2007, I was the Chief White House
Ethics Lawyer under President George W. Bush I worked with the White House staff and the
President’s nominees to Senate confirmed positions on their financial conflicts of interest and
compliance with government ethics regulations It’s critically important to make sure that
all nominees are in compliance with the conflict-of-interest rules before
they are put up for Senate confirmation So we go through everyone’s assets,
liabilities, and business relationships and make sure that they have divested
of all financial conflicts-of-interest If an executive branch official
participates in a particular matter in which that executive branch official has
a financial interest, they commit a crime 18 U.S. Code § 208 makes it a crime
for anyone in the executive branch to participate in a matter in
which they have a financial interest. And so if you own stock in Goldman Sachs
you cannot go to the Treasury Department and make decisions that affect
the investment banking industry If you own pharmaceutical stock or
medical device company stock you cannot go to HHS and make
decisions about health care laws and regulations This statute applies to every single
person in the executive branch, other than the President or Vice President. President Bush would himself voluntarily
comply with it because it makes no sense to have the boss not following the rules
that everyone else complies with. 18 U.S. Code § 208 does not apply to the President,
the Vice President, or the members of Congress and that’s why we do have members of Congress —
not a lot of them, but some — who own substantial positions in pharmaceutical companies, medical device companies, energy companies, and other businesses affected by the
decisions they make on Capitol Hill. I believe that we should apply this
criminal conflict-of-interest statute not only to the executive branch appointed officials,
but to everyone in the government including the President, the Vice President,
and the members of Congress that is a loop-hole in our current in our current system of financial conflicts-of-interest regulation. The Emoluments Clause is in the Constitution of the United States, as opposed to in the criminal statutes The Emoluments Clause does apply to the
President and to the members of Congress It applies to every person who holds a position of
trust with the United States government The Emoluments Clause reaches profits and benefits earned from foreign governments So it would not cover financial conflicts-of-interest
with domestic corporations or even foreign corporations that aren’t
controlled by a foreign government But, for example, if President Trump received
loans from the Bank of China, which is controlled by the Chinese government,
that is a violation of Emoluments Clause Or if foreign governments book rooms in his hotels, that’s a violation of the Emoluments Clause

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