Let there be no doubt: The Trump administration has declared war on the rule of law in the United States. That should be troubling to all Americans, but particularly those who ply the compliance trade and are involved in daily decisions on ethics, conduct, and rules, and have a stake in systems of checks and balances being free of partisan influence.
By “rule of law” we’re not talking about the “law and order” refrain President Trump has turned to repeatedly in response to protests and calls for police reform. We’re referring to the long-standing tradition of politicians keeping their fingers off the scales of justice and the Justice Department and all of its tentacles remaining independent entities, immune from the political fray.
Former FBI Director James Comey wrote in his book, “A Higher Loyalty,” about a meeting he had with President Obama that took place just before his appointment as director. He said both he and Obama knew it had to be the last informal conversation the two could have because, when Comey was FBI director, there could not even be the perception that the president was trying to exert any influence on the work of the FBI.
Compare that to the Trump administration, which doesn’t appear to be abiding by that legacy of independence.
The latest evidence came in a Friday night news dump, when Attorney General Bill Barr announced that the U.S. Attorney for the Southern District of New York Geoffrey Berman was stepping down. Berman, who has overseen a number of investigations into the president’s associates and political campaign, shortly after said he was not in fact stepping down, and that he would continue in his ongoing investigations “without fear or favor” until his replacement was named and confirmed by the Senate.
On Saturday, Barr issued a letter stating Trump had actually fired Berman and that he would be replaced immediately by his deputy, Audrey Strauss, until which time their preferred candidate (current Securities and Exchange Commission Chairman Jay Clayton) could be formally nominated and confirmed.
The series of events was not only messy but left little doubt about the motivations of the administration. Trump clearly wanted Berman, a Republican he himself nominated for the position, out as lead attorney in one of the most important jurisdictions in the nation. What’s left to speculation is why he wanted him replaced, just five months before the election.
There’s the notion that the administration wanted to go out of its way to retain Clayton, who reportedly was planning to step down from the SEC and move back to New York and had expressed his interest in the SDNY job. Or, there’s the possibility that perhaps Berman had made too many waves with his investigation of Trump associates and was about to make more with his ongoing probe into the president’s personal attorney, Rudy Giuliani. That campaign finance case has already resulted in charges against two former associates of Giuliani.
The move comes just days after Trump tweeted his dissatisfaction with several Supreme Court rulings that didn’t go his way, and months after Barr’s reversal of sentencing recommendations against Trump allies by the U.S. Attorney’s office in D.C. And those are just the most recent examples.
The fact there are Trump’s fingerprints on any of this should be troubling to anyone who believes in the independence of the justice system, a point made best in a column in the New York Times on Sunday by Preet Bharara, former U.S. Attorney for the Southern District of New York who was also fired by Trump early in his administration.
“The importance of reputational independence isn’t codified in a rule or a statute, but it is rightly embedded in the D.N.A. of any worthy law enforcement institution for a simple reason: That independence gives comfort to the public that decisions about life and liberty will not be influenced by politics or partisan interests, that those decisions will not depend on an individual’s identity, wealth, fame, power or closeness to a president—every judgment rendered without fear or favor, as the oath commands,” wrote Bharara, who also discussed the importance of the rule of law as a keynote speaker at Compliance Week’s 2018 National Conference.
Bharara went on to say that the Southern District is “a place where politics is supposed to be off limits” and that Trump “has demonstrated his belief that the law and its instrumentalities exist to serve him, personally and politically.”
What’s the tie to compliance? The fact that Trump and Barr are so unabashedly bold about exerting their influence in an area that’s predicated on independence should remind CCOs and their subordinates that ethics and rules can’t be bent for political (or business) gain, and that any threat to undermine a system of checks and balances that leaves powerful people unaccountable is unacceptable and needs to be immediately flagged.
Whistleblowing and speaking truth to those in power sometimes comes with a hefty price, but it needs to be done to ensure our institutions (whether public or corporate) are held to standards that guarantee fairness and a culture of accountability, honesty, and doing the right thing.
Those shouldn’t be partisan values, but in this political environment it appears they are.