Benjamin Zipursky wrote an opinion piece about government ethics and conflicts of interest related to Donald Trump.
The topic of ethics is often controversial but in recent days it has become downright confusing. Republican Representative Jason Chaffetz complained, “I’m concerned that the person in charge of our office of ethics is not the most ethical person.” Some pundits who were outraged by Mr. Trump’s allegedly unethical comments seem frankly bored by what ethics experts are complaining about today. Conversely, some of those content to defend Mr. Trump’s ethics during the campaign are now fretting about the structure of various kinds of legal trusts. And while Mr. Trump says there is no law at all requiring the president to sort out his conflicts of interests, others say that he is plainly violating our most basic law, the American Constitution. We seem to be a million miles from the “ethics” that means knowing right from wrong.
Today’s “ethics” confusion reminds me of my own challenges years ago, when I transitioned from teaching ethics in a philosophy department to teaching legal ethics at a law school. While there is substantial overlap between the two areas, the differences are critical. Legal ethics is not mainly about what it means to be a good person or to care for one’s fellow human beings or to be just; it is not something one learns from Aristotle or Kant or the clergy. Legal ethics is first and foremost what it means to play the role of lawyer properly, to care for one’s client, and to be a trusted part of the legal system. It is learned from laws, lawyers, and judges, and it is designed in such a way that it plainly cuts across political ideologies on its most important points. Where ethics is about the neverending quest for the good, the right, and the just, legal ethics is about using settled and often formal legal structures to protect clients and society against persons with great power over them: their lawyers.
Government ethics is like legal ethics, not like ethics full-stop. We must get our heads into a different place. At this moment, let’s stop thinking about whether Mr. Trump’s attitudes toward race and gender and his aggressive use of Twitter to attack individuals displays a person of compromised ethical standards. We are in the wrong ball park. The country must now demand compliance with a set of conflicts-of-interest rules and principles that protects citizens against a person with a huge amount of power over them: their president. This is a topic that does not depend on left or right or Democrat or Republican.
Like every area of American law, government ethics is not as easy as one, two, three. Standards are sometimes unclear or ambiguous and need intelligent and fair-minded interpretation. Just as lawyers and judges must analyze these soberly with the protection of clients and society in mind, so must Washington’s political actors—and Mr. Trump himself—provide a fair-minded interpretation of the restrictions imposed by government ethics rules and the Constitution itself. Government ethics and conflicts of interest rules are there to protect us—the citizens, and our society as a whole.
I write this little essay precisely because I want people to stop focusing, at least for the time being, on Mr. Trump’s alleged ethical flaws. That is all a distraction right now. What we need to think about and talk about is conflicts of interest. This is a less edifying and more technical subject, but one of great importance. The legislative branch and the media and the public as a whole must demand, at a minimum: a disclosure of federal tax returns and a serious divestiture of interest in his multibillion dollar worldwide business enterprise.
Benjamin C. Zipursky is professor of law and James H. Quinn ’49 Chair in Legal Ethics at Fordham Law School.