The Mueller Report and Presidential Ethics
As soon as Attorney General William Barr released his four-page summary of Special Counsel Robert Mueller's report, President Trump announced he was "totally exonerated." Since that means "not guilty of wrongdoing," is that really the case? The process under the laws governing a special counsel was followed and thus far, at least, has produced no finding of presidential illegality sustainable in a court of law. There the matter might end - if our only touchstone for wrongdoing is the law.
In How Good People Make Tough Choices, ethicist Rushworth Kidder suggested that while societies need laws, over-reliance on them stifles creativity and energy. Too much is prescribed and proscribed. On the other hand, societies with inadequate legal protections leave too much room for licentious behavior. The solution, he argued, lies in between these extremes. This is the realm of ethics, which he defined as "obedience to the unenforceable." As former Supreme Court justice Potter Stewart put it, "Ethics is knowing the difference between what you have a right to do and what is right to do." It is only within a sufficiently large ethical space that societies avoid the bipolar choice of stifling legislation and dangerous license.
This invites a question: is legality the sole standard incumbent on a president? If so, we risk a presidential playing field devoid of ethical expectations. Anything goes that cannot be prosecuted. If we are to be satisfied with any president whose only obligation is to obey the law, do we invite a race to the bottom for presidential behavior?
This is not just a question relevant for President Trump. Yet, his behavior related to the Mueller probe is at issue. A president sets an example, and in a republican government, that example influences others, trust in government, and our social fabric.
Once the Special Counsel was established, President Trump repeatedly and publicly demeaned Attorney General Jeff Sessions for recusing himself. He labeled a legal, Constitutional process a "witch hunt," and belittled the Mueller team, undermining respect for the rule of law, the Justice Department, its leadership and staff. He labeled the press the "enemy of the people," a phrase that historically has encouraged hate and violence. He criticized his own intelligence agencies, ignoring their overwhelming evidence (included in the Mueller report) that Russia interfered in the 2016 election. His personal attorney, national security advisor, an early campaign chairman, and other advisors were indicted and in many cases pled or were found guilty, suggesting he allowed, if not encouraged, a loose ethical environment. He admitted negotiating with Russia for a building in Moscow late into the 2016 campaign, despite the possibility that this could compromise his future public service. He acknowledged, without concern, that his son took a meeting whose stated purpose was to gather information from a foreign source against his political rival. He continues to revel in "lock them up" chants against political opponents. Recently, he told a Michigan rally that House Intelligence Committee Chairman Adam Schiff is a "pencil neck," only the latest epithet against Americans he has hurled to cheering crowds, regardless of the damage to civil discourse and the reputation of a coequal branch of government. While all of this is legal, that does not mean it is ethical.
"We are a nation of laws, not men," John Adams famously declared in crafting the constitution for the State of Massachusetts in 1780. Adams's dictum has been a bedrock principle of the American republic. But it misses the key element that it is "men" that must make "a nation of laws" work. Laws do not produce justice; people do that. Absent ethical people, laws simply become boulders to hide behind while engaging in behavior that threatens the democracy they have been crafted to protect. As Supreme Court Chief Justice Earl Warren put it, "In civilized life, law floats in a sea of ethics."
"Character is the only secure foundation of the state," Calvin Coolidge reminded us. Just staying within the law is not enough for those who take the Presidential Oath of Office.
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