Justice. We want to thank our friends here at nyud. C. And the nyu center for cohosting this event with us this afternoon and for being such a great partner to the Brennan Center for justice. On behalf of the Brennan Center, we are pleased you have joined us for what we know will be an exciting and interesting conversation on president ial ethics law, and this is a particularly good moment to have this discussion. The Brennan Center, for those of you who do not know, is a nonpartisan law and policy institute that seeks to improve our broken systems of justice and democracy, and we like to use the tools of advocacy, research, litigation, and strategic negotiations to do just that. We work on what we think are very cutting edge issues, such as voting rights, money in politics, ethics, criminal justice reform, racial justice, fair courts, and a host of other issues to, again, do just that, make our democracy and justice systems stronger and more effective for all americans. Please follow the Brennan Center if you dont already on facebook and twitter. Be sure to check out our videos and podcasts on itunes, youtube, and in the multimedia section of brennancenter. Org. And with that said, i am pleased to introduce our moderator for todays program, kimberly atkins, who is the chief washington reporter and columnist for the boston herald. Please join me in welcoming kimberly. [applause] kimberly thank you, nicole. Thank you so much, nicole. President Donald Trumps decision to keep control of his Business Empire despite apparent conflicts of interest is but one of a number of ethical controversies that have made headlines since Inauguration Day one year ago. As informal guardrails that constrain selfdealing by those in power fall by the wayside, what can be done to shore up federal ethics laws to give the Public Confidence that their leaders will put the interest of the American People first . What are the most significant gaps that exist in our system of federal ethics regulation . What are the special challenges that accompany any effort to regulate the president s conduct in office, and what are the most promising ideas for reform . Those are the questions that we are going to be tackling today with our esteemed panel of guests, including kathleen clark, professor of law at the Washington University school of law, walter shaub, the ethics director at the Campaign Legal center and former director of the office of government ethics, and daniel weiner, the senior counsel of the Democracy Program at the Brennan Center for justice and the nyu school of law. Welcome to the Brennan Center of justice here at nyud. C. Ok, and, again, my name is kimberly atkins, and i am a Political Columnist and reporter for the boston herald. I also wanted to note in the beginning that we will have time at the end for questions, so keep them and hold them tight, and we will get to them later, but i wanted to start out talking about the background of federal ethics laws and how they apply to the president. Well, that is a good question. The federal ethics laws affect the president , but one of the most important is the federal prohibition on conflicts of thatest does not, and exemption dates back to the late 1980s, although it was applied before. Implied before. What is interesting, of course, and most folks know this, is that historically, president s notwithstanding that they were not prohibited from having conflicts of interest took voluntary steps, sometimes rather elaborate steps to avoid them nonetheless, and usually that took the form, and my copanelists will correct me if i am wrong, because they have worked in this space longer that i have, but limiting the types of assets they held, diversified mutual funds, make accounts, or bank accounts, or placing other types of assets in a blind trust, which was really shielded from their control and their knowledge. So that was a key element of the federal ethics regime that does not apply to the present. Thats president. Others involving bribery, we have never really proven that because the president has never been prosecuted, but most of us would agree that president s can take bribes. There are significantly fewer constraints than for virtually any other federal official other than the Vice President. Kimberly ok, walter, talk about the rules in place along the way to complement and supplement. Walter with regard to the president . Kimberly with regard to the president , yes. Walter it is true that the president is not covered by the statute, but the live does not law does not impose a criminal penalty for the president s conflict of interests, but that does not mean as a president asserted a little more than a year ago the president obviously can have a conflict of interest, anything that creates a financial interest that runs contrary to interest that runs contrary to the duties of your position, and a president can certainly do that, and we have seen this president do that. It is not entirely true that no laws cover the president in regard to conflicts of interest were ethics in general. Technically, the president is covered by the ethics rules, although oge, the office of government ethics, has created an exception to allow the president to accept certain gifts. In the past year it became effective january 1, but it was issued as a final prior to that in 2016. Oge created a new requirement that you should consider if you can accept a gift and should you accept it, and would it create a concern on the part of a reasonable person with knowledge of the relevant facts as to whether or not this would impede your impartiality in your decisionmaking or lead you to give greater access to someone. I do not suspect for a second that that is being applied, and it should be, and Good Government groups and reporters should be asking if they see him except a gift, what is your analysis in applying those factors . Another obscure provision that applies to the president is that in 2012, the president past an act, and it was somehow incorrectly reported that that law was rescinded. It has not been rescinded. One transparency portion was rolled back, but the law was originally a response to a 60 minutes piece that suggested members of congress were profiting by their position by engaging in trades around the time that laws are being passed and other decisions are being made, and it was initially intended to apply only to the legislative branch, and president obama called on congress, sort of shame to them in their state of the union speech that they should pass that. That prompted an action that they extended it to the executive branch. Yes, we will pass it, all right, and became like a Christmas Tree with people hanging ornaments on it, because there were over 30 amendments in the final weeks or so. What apply to employees applied to the president , and one of the restrictions was a requirement under a section to recuse from any particular matter affecting the finances of anyone you have an arrangement with for future employment or compensation or are negotiating for one of those, and that is interesting, because it imposes a recusal requirement on the president , and as we will discuss later, that has been the subject of some constitutional debate as to whether congress can impose this recusal on the president , but, in fact, they have. It just has not been challenged because nobody has tried to assert it. But that was the crossing of a threshold, and i do not know if they did it deliberately, and as with history, you have to assume they knew what they were doing. Kimberly what is missing, some of the loopholes . Can you give us an overview of that . I just want to emphasize that the countrys first conflict of interest law does apply to the president , and these are found in the United States constitution, the foreign emoluments clause and the domestic emoluments clause. Any official is prohibited from accepting something of value from a foreign government, and that, of course, has been the subject of some litigation, but what i think that represents is that our framers recognized the danger that Government Officials, including the president , could be influenced by money or anything of value that they received. Now, in terms of exceptions, problems that need to be filled, i think what was identified, in 1989, congress amended this criminal financial conflict of interest statute so that it exempted the president and the Vice President from its reach. I believe that was a mistake, and i think if we go back a couple more decades, back to 1962, when president kennedy was submitting comprehensive Ethics Reforms before congress, president kennedy included in that an exception for the president and the Vice President , and congress rejected it and from 1962 on imposed it on the president and the five president the financial statute. I think when we get a congress that cares again about our founding principles and that conflicts of interest and protecting the public trust, when we get that congress, i think that Congress Needs to reenact this financial criminal conflict of interest provision on the president. The other thing i want to mention is it is another problem in the conflict of interest standards or ethics standards. This is a process. Highlevel officials are required by statute to fill out somewhat detailed forms about their financial interests, but the statute has been interpreted so that if a Government Official has a company, a business, the official does not need to disclose the debt and Financial Relationships of that company. We have a president who, of course, has hundreds of llcs, and the office of government ethics had to interpret the statute, the disclosure statute. He is not required to disclose the relationship, including the debt load of those llcs, those companies, so the Financial Disclosure laws are probably adequate for many people in the room, someone like myself of modest means, but they are not adequate to deal with someone who is using has their own companies, because it has been interpreted not to require disclosures, so someone like trump, for someone might Jared Kushner, we have to change the laws so we can get visibility into the Financial Connections and the debt. In addition to them not having that, the other thing lacking about disclosure, ethics disclosure, if you ever see they disclose these in very broad ranges, like 5 million to 25 million. Just to see what your asset is, that may be adequate, but one of the things we have looked at is if you look at other countries, say italy under silvio berlusconi, he was not necessarily directly taking Government Action to benefit his media empire, although he was. Action to benefit his media empire, although he was. But there is also a pattern of seeking businesses and sectors of industry buying advertising at inflated prices at his companies and increasing their value, and that was actually a primary way he in which to himself off of being Prime Minister of italy. We have seen that somewhat with the husband and wife president of argentina who actually own a chain of hotels, so when you have these broad ranges, it obscures the extent to which certain assets may be increased in value for other reasons than just the market. More duringllion the most recent period that it did before the president became president. He actually disclosed that on his report, but that is a good example. A morearalago is attractive place to play and be a member now that it is with the president of the United States. That is something that the forms would not necessarily reveal right now. Step backi want to and really posed to the panel, why should we care about these issues . Why do we care about conflicts of interest . I know there are a lot of supporters of the president who say he is a good businessman. He as a right to make money. We knew he was a businessman when he was elected. So why do we have these confident of interest laws, and why do we care about them . If i can do that and go back to some points we just covered. Kathleen knows she and i disagree on one, but it is h or full disagreement. Cheerful is a disagreement. I do not think it is a matter of going back to what it was prior to the 1989 amendment. I think it was understood at the moment that the criminal statute did not apply to the president , and, of course, in 1974, writing on behalf of the Justice Department, they wrote articulating that, and oge cited that opinion again, so i think by 1989 when they put that in there, i think there was some nervousness at the tail end of the Reagan Administration about consequences for some alleged dont thinki anybody seriously thought at the time that they were changing the law. I think they thought they were codifying it. In terms of liabilities for companies, i am the one who tifies the president s president s Financial Disclosure, and i think it is compliant for what he disclosed. Now, if it turns out there are things he did not disclosed, that is different. Dealing with the situation were in in terms of disclosure, i treatment of companies, saying you do not have to disclose their liabilities or Business Partners is consistent with the rest of the application of the statute, because if, for instance, if you hold stock in cocacola or exxon or any other large, publicly traded company, you are not necessarily going to know as just a random person who called up your broker and said by five chairs shares buy five sh ares of cocacola that you know who their affiliates are, so i think this is about companies and more specifically rightly held family companies, like President Trumps family companies, Jared Kushners andly company companies, a head of commerce coming from accuweather, which is a very closely held family company, so i think this is a new problem that we have not had a lot of experience dealing with, and the law has not caught up with the fact that now we have got Public Officials with these privately Held Companies, and then in terms of the ranges, again, i tend to look at it as a technician. I am not sure i would agree that we need to break the ranges into more pieces, particularly on the value side, because if you have a one dollar asset, it is still a conflict of interest unless there is an exemption that applies. It might be more important on the income side. So if you see a greatly increased revenue stream, i think that might be more indicative. Take your point that is may be less important. And i think if we strip out publicly traded companies i do not know about knowing that, but these privately Held Companies, we want to know what that is about. But all of this goes back to why does this matter, and it is at its most basic core about corruption, whether or not somebody is misusing or abusing the authority and trust entrusted to them for their own personal gain or the gain of some other private individual or , and if we have people going into government to enrich themselves or enrich others by using governmental authority, and i am not talking about collecting your salary but using Government Authority that is entrusted to you by the people to be used for their benefit, but you used that authority for your own benefit, then that calls into question the legitimacy of government as a concept, much less the individual case, and that is the hallmark of the countries that we labeled banana republics or things, where the leaders can just help themselves. That putinrs used his power to become one of the richest men in the world. You have to ask yourself. But even beyond the actual these civilized, modern, western society, the sense that we should not even have to ask the question. The burden should be on the Government Official to take whatever actions they can to show us that there is no remaining conflict of interest, and that said, it should be, because the public cannot have access to enough information to know the link between a financial interest and a decision. Very hard to draw. In many cases, we find ourselves highlighting the smaller violations that are the 10 area in the coal mine that tell us there is a broader issue going on that are the canary in the coal mine that tell us there is a broader issue going on. Eliminating conflicts of interests so that you can know that my decisions are based on the policies i declared when you voted for me rather than on my own personal enrichment or the personal enrichment of a third party. We have had president s have this happen up till now. Russia, andned another example is venezuela. But it basket place now, was a fairly stable and prosperous democracy for many years, and people think of shop ez as doing that, but this was at the top before. There is speculation and a vast array of literature that documents the extent to which perception of selfdealing at the top undermine the public institution,cratic and we are seeing that trend in reduced faith in democracy, and the United States is not immune to that. And just to continue the canary in the coal mine metaphor, ethics is to some extent indicative of a broader range of democratic concerns, because if you take some of the idea that the president cannot have a conflict of interest in the extreme, you get the idea that the president is with that of the sta