I have to admire the Trump administration sometimes. In what appears to be a rare stroke of genius from an administration that has not heretofore been known for their strategic prowess, the Trump administration is floating the idea of restricting the investigation of Robert Mueller, who was recently appointed by Deputy Attorney General Rod Rosenstein as the special counsel in charge of the Russia investigation.
By itself, this isn’t a huge development. It seems pretty unremarkable that Team Trump would want to limit the scope of the former FBI Director’s investigation into questions about Russian meddling in the 2016 election and what role, if any, the Trump campaign played in helping Russian operatives achieve their goals.
While meddling in an ongoing investigation isn’t typical behavior that we would expect from a typical American politician (“My administration stands ready to help the FBI and Congress get to the bottom of what role, if any, Russia played in the 2016 election. We cannot play politics on this issue. Faith in our democratic system of government is too important a commodity. The American people deserve answers, and my administration is committed to helping deliver those answers as expeditiously as possible.”), it is certainly behavior that seems in line with a more Trumpist operating procedure.
The assembled team at the White House seems to think of themselves as akin to Nick Naylor from the Christopher Buckley novel, Thank You for Smoking. “If you argue correctly, you’re never wrong,” Nick Naylor says, expounding on why he loves shilling for cigarette manufacturers in the pre-Tobacco Master Settlement Agreement days. Naylor’s aphorism, or some version of it, certainly seems to be Team Trump’s mission statement, guiding principles and crisis management playbook all rolled into one. Unfortunately for President Trump, his team has seemed to lack all of Naylor’s abundant guile and his indispensable ability to make you want him to win even if you disagreed with his ends and the means he used to arrive at them.
But, in Team Trump’s latest move, they’ve at least achieved a Nayloristic level of guile. No, not simply because they are trying to restrict the investigation. It’s the way they are trying to restrict the investigation. Reuters is reporting that Team Trump is toying with the idea of using an ethics rule to prevent Robert Mueller from pursuing leads that may result in him investigating former Trump campaign manager Paul Manafort and son-in-law and éminence grise Jared Kushner.
What, you might ask, is the ethics rule in question that would limit the scope of the special counsel’s investigation? It’s a rule that says that newly hired government employees cannot “participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients” for two years–a length of time that President Trump extended from one year in a January 28, 2017 executive order. Why would this have the affect of limiting the investigation? Because the law firm Mueller resigned from to take on the role of special counsel (not Mueller himself, mind you) represents both Kushner and Manafort.
Now, this ethics rule is pretty clearly meant to prevent the U.S. government from taking positions that would benefit private entities because of their connections to administration officials. Think the case of a Treasury Secretary who used to work in the finance industry for big name players like Goldman Sachs and wants to significantly cut corporate taxes, delivering a cash infusion right into the corporate bottom line. Think a former Exxon CEO as Secretary of State who helps deliver over $50 billion in energy investment deals to Exxon on the first presidential visit abroad. The rule is one that’s supposed to stop stuff like that from happening, at least for the first couple of years after someone is hired.
The principle here is that private enterprises shouldn’t receive unfair benefit and advantage from the U.S. government because of their relationship with an administration official. To boot, we want to avoid even the appearance of that kind of impropriety.
Instead, what the Trump administration hopes to do is turn that ethics rule on its spiritual* head. They want to use a rule invented to prevent government employees from cutting special deals for friends in the private sector to cut a special deal for Trump associates, preventing them, in practice, from being targeted by the ongoing Russian investigation. It’s genius.
It seems pretty clear that the intent of the ethics rule, as any layman would tell you, is to avoid government corruption. In fact, the ethics rule seems to want to avoid even the appearance of the kind of corruption that would be corrosive to Americans’ trust in the fairness of their government. What it is clearly not meant to do is to aid and abet that same corruption.
What Team Trump is doing here is nothing shy of brilliant. Ignoring the intent of the rule, they want to use just the pure textual (but not con-textual) meaning of the rule to limit the scope of Mueller’s investigation and cast doubts upon his integrity. It’s so dexterous and cynical a strategy that it’s a wonder that Team Trump came up with it, given their penchant for playing more Foreman than Ali (more reckless brawler than patient rope-a-doper) in the past few months.
In the end, though, the move is also a quintessentially Trumpist way to think about ethics and rules. Ethics isn’t a way we express some sort of value statement that we all agree on. It’s not a way for us to share our moral judgments with one another. Ethics isn’t even a way for us to talk about the kinds of behavior we ought to aspire to. Rather, government ethics are just words on paper, and their proper place is to be twisted and used to your own personal benefit.
*Footnote: We sometimes talk about the “letter” versus the “spirit” of a law. The use of “spiritual” here denotes the intent of the ethics rule rather than its literal meaning.