Published by The Lawfare Institute
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President Trump has given his reasons why he does not worry, nor should we, about Donald Trump, Jr.’s meeting with Russians. He has not long been in politics, Mr. Trump says, but he knows it’s not a “nice” business. Anyone in that line of work would have taken the meeting and reviewed the information tendered—just “standard opposition research”—on the Hillary Clinton. The President did not mention either the Russian source of the information or the dangers of accruing a political debt to a foreign power.
The meeting, and both the President’s and Donald Jr.’s defense of it, have invited a discussion of the President’s political morality. David Brooks described it as “law-of-the-jungle morality,” defined at the core as “a single-minded desire for material conquest” and a “ruthless logic of winning and losing.” Michael Gerson’s assessment was similarly unfavorable. He also finds in the Trumpian worldview “a faith that makes losing a sin” and a crude, ethically rudderless belief that “because politics is an essentially dirty business,” anything goes. Ruth Marcus found this ethics “repulsive.”
This subject of Donald Trump’s ethics is now rightly in the middle of the discussion of his presidency and not subordinated entirely to the strictly legal implications of the Russia connection. The legal issues are important, of course: they require the urgent attention that Congress and Special Counsel Robert Mueller appear to be giving them. We do not yet know the outcome of those inquiries, and a long time may pass before we do. We do know a good deal about the Mr. Trump’s political ethics.
The Trump campaign’s courtship of Russia is one of the cases in point in an examination of his political ethics. For example, the Russian questions have somewhat pushed into the background questions about the arrangements Mr. Trump has made for the management of his business interests during this presidency. However, the Russia-Trump campaign relationship—and how Mr. Trump situates it within “standard” political practice—is exceptionally illuminating on the question of his ethical posture.
It is worth noting that the President's perspective on the June meeting with the Russians differs from his son’s in a material respect. The President chose to take the argument to the realm of politics. This is what happens in politics, he was saying, but Donald Jr. strikingly fell back upon the habits developed in business life. “That’s what we do in business,” he told Sean Hannity. “If there’s information out there, you want it.” He suggests that a businessman faced with an offer from Russian channels evaluates not the source of the source of the information, but instead the advantage that it supplies in the pursuit of the pending business objective—in this case, the winning of the presidency.
It is hard to escape the impression that Donald Jr. got closer—or was more candid—than his father about the motivations at work in the solicitation and entertainment of the Russian offer. His father admits to only two years’ experience in politics, and he prides himself on the decades of work in business that came before it. Trump Sr.’s understanding of what practitioners of politics would do with an offer like the one transmitted from Moscow is that of a novice. It reflects mostly what a viewer of House of Cards might imagine the weight of political “ethics” to be. Donald Jr., a business partner of his father and now responsible for the Trump Organization’s affairs, was the one who had the decision to make and he made it on the criteria he and his father are most familiar with, drawn from the world of commerce as they understand it. Donald Jr.’s account of the ethics of the decision seems most plausible. It was another Trump business decision.
One could also ask whether, on any account of political ethics, what Mr. Trump suggests about common political practice in a case like this is true. Is it correct that anyone in the political business, because it is not a nice business, would have welcomed the Russians to Trump Tower to entertain an offer that was “part” of a Russian government’s commitment to the election of Donald Trump?
The question can be clarified by framing it with reference to the distinctions between “dirty hands,” “dirty tricks,” and “dirty politics.” “Dirty hands” refers to the hard choices that politicians may have to make to accomplish important ends through the use of dubious, improper or illegal means. A “dirty trick” is a nasty piece of business in a political campaign—a sordid tactic, like fabricating a piece of literature in an opponent’s name to tar him with a claim or statement he did not make. A charge of “dirty politics” condemns the whole of a political enterprise that is conducted without regard to moral standards or limits. Dirty politics is unethical politics all the way through.
It is not clear which ethical behavior Mr. Trump is defending as standard, if not “nice,” in politics.
We are certainly not speaking in the Russia-Trump campaign case of “dirty hands,” meaning a moral dilemma an official or politician might face. One example, among the less controversial ones, might be whether to tell a lie to the public to protect a sensitive military operation. Another, prominent in recent legal and political history, is the torture or other mistreatment of a prisoner to extract intelligence information that could save lives. In each of these cases, as Dennis Thompson has put it, the politicians claims to take the morally dubious or defective position “for the sake of public purposes,” or “for the sake of those for whom the [they] act.”
No question of the kind is raised by a candidate’s or his campaign’s violation of an ethical norm or the law to win an election. In that case, the candidate is serving his own interest, not the interest of others. He is acting on and for his own account, and not as a fiduciary.
A candidate striking a deal with a foreign government is engaged in this self-serving behavior at a particularly high level of risk to those “for the sake of . . . whom” he is supposed to act. He is putting himself and his future government in a compromised position. The foreign benefactor may never explicitly call in the favor. But the unspoken debt is still a threat to the integrity of his decision-making in support of US national interests in foreign policy and national security. The candidate knows what he owes, as does the foreign power. The bill may come due.
If the President is alluding to “dirty hands” problems by speaking of the way in which politics is not “nice,” he is not on safe ground. This is not normal politics with its seamy side exposed. It is just unethical.
Watergate analogies have come up in recent discussions, no doubt because the scandal arose out of another president’s ruthless determination to sweep away, by all necessary means, obstacles to his election. The fabled “third-rate” burglary and related cover-up are usually what those citing this history have in mind. There was more, such as the pressure that Nixon placed on the Federal Reserve to acquiesce in short term measures to juice up the economy a year before the election. John Farrell, in his biography on Nixon, has written about Chairman Arthur Burns’ diary entries at the time, which crisply capture the ethical issue in terms that resonate with the problems of the current Administration. “I am convinced that the President will do anything to be re-elected.” And on a later occasion: “[I] was seized suddenly with fear for the safety of our country, which depended so heavily on this insecure man.” In Mr. Trump’s case, the ethical issue, which could arouse the same fear, is what he might have been willing to do to win the 2016 election.
Perhaps the President meant, more or less, that political campaigns will always include the rough stuff. We know the thrust of this perspective: “Politics ain’t beanbag,” or “It's rough and sometimes it's dirty….But it's the only sport for grownups.” The federal campaign finance law, 52 U.S.C. § 30124, provides an example, the fraudulent misrepresentation of campaign authority. It states that no candidate or person or employee acting for her campaign may—
fraudulently misrepresent himself or any committee or organization under his control as speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.
This is the classic formulation of a “dirty tricks” offense, enacted by Congress in response to the schemes hatched by agents of Richard Nixon’s 1972 campaign. Run by Donald Segretti, the “dirty tricks” were of various kinds, ranging from sophomoric stunts—ordering in a campaign’s name the delivery of massive numbers of pizzas—to the distribution of forged documents. The post-Watergate reform law addressed one branch of the dirty tricks family: agents of one campaign’s fraudulently presenting themselves as acting for another in order to inflict “damage” on it.
The dirty trick is an unsavory, frequently repellent, campaign tactic that generally involves deception or misrepresentation. Hence, it is a “trick.” Except insofar as illegality is involved, there is not clear agreement about when the practice of this dark art goes well beyond what may be grudgingly accepted as political bloodsport.
But the sense in which dirty tricks are not “nice” cannot be what Mr. Trump had in mind. His campaign was not planning a dirty trick in the conventional sense: It was trolling for what has been called “opposition research.”
But the research that Mr. Trump’s campaign was seeking, and that he would lump in with the uglier but routine aspects of politics, was not of the ordinary variety. It is extraordinary because it appears from the emails to have been offered through official Russian government channels, drawn from “official documents and information” that were “very high level and sensitive” and provided as “part” of a systematic program of Putin regime support for the Trump candidacy. In this context, the information that was the subject of the Donald Jr. emails and the June 6 meeting may be just one instance of the benefit that the campaign hoped to derive from an active and ongoing political partnership with the Russian government. It is not even a “stretch,” rather more an absurdity, to call this “standard” opposition research.
Keeping this in mind brings the issue of Mr. Trump’s politics closer to the ethical point—and deep ethical problem.
“Dirty Politics” as Unethical Politics
The unethical politician, whose politics is dirty, fails to strike a balance between public responsibility and political self-interest—or is unable to achieve it at all. The ethical challenge for this politician is far removed from the moral choices that make for “dirty hands.” A dirty hands problem arises only if the politician recognizes moral constraint on the path to power or its exercise and experiences conflict when choosing an ethically question course in striving to achieve a public purpose. The unethical politician does not struggle, internally, with any such recognition of the force of ethical obligation. He may understand that the ethical sensibilities of others is a political fact—and for this reason alone, one that he cannot ignore. But if he can, he will, if it serves his purposes.
Mr. Trump has exhibited this comprehensive ethical failing through this young presidency. As previously noted here, it can be seen in his refusal to disengage from his business interests or to stop promoting them; in his refusal to release his tax returns; in his belief that senior law enforcement officials owe him personal loyalty; and in his tweeting without regard to the difference between disciplined speech of a president and the free-wheeling expression of an individual wishes, feelings, and frustrations.
The disregard for ethically grounded limits on the pursuit of self-interest has brought on the inevitable comparisons of Trumpism with McCarthyism. The link of primary importance is not any similarities of “populist” argument or appeal. It is more a politics of “win-at-all-costs,” where Mr. Trump is seeking victory for himself. Like McCarthy, he displays indifference to the facts and an appetite for the baseless and sensational claim, and he is dirtying his hands in these ways on his own behalf. McCarthy’s biographer Thomas C. Reeves judged McCarthy to have been, in the end, “a reckless adventurer, an improviser, a bluffer,” and the resemblance to the current occupant of the Oval Office is not hard to see.
The ethical problems in the Russia matter may begin with the dalliance with Russia but it has expanded from the original moment to the defense that the President is willing to offer today. Now one of his obligations to those he serves is to provide an accounting of the June 16 meeting at Trump Tower. Yet—to protect himself—he and his administration have resorted to falsehoods. The campaign did not know whom it was to meet with, and yet it turns out that it did. The Clinton campaign was said not to be the discussion topic—but it was. And this topic was not the tail on the meeting, a mere add-on in a discussion devoted to other purposes, but the reason for it. How many attended and who they were: these facts, too, have been misrepresented.
The clinching case against the political ethics of Donald Trump may be these and any disclosures to come about his and his campaign’s readiness to strike a bargain with a foreign government for help in his campaign and its resistance to an honest public accounting. But at least we have Donald Trump, Jr.’s suggestion of motive. For the Trump campaign, dealing with Russia was business, and for Mr. Trump, that means it was personal—in his own interest. He has wound up in this position because, lacking a conception of political ethics, he has been guided instead by the recipe for success he took with him into politics from a career of business deal-making. And this is not just what moved Donald Trump, Jr. and senior campaign personnel. His father, falsely presenting it as “standard” politics, agrees that “anyone would have taken that meeting.”
A political partnership between Russia and the Trump campaign would have nothing to do with politics as a craft or vocation. Politics ain’t bean bag, but it is also not this.