Ethics director Shaub’s statement is clear and troubling, could be better organized

Walter M. Shaub, Jr., Director, U.S. Office of Government Ethics, gave a talk at the Brookings Institution on Wednesday. His statement is full of clearly, direct, and troubling statements about the failures of Donald Trump’s plan to avoid conflicts of interest as president. But this talk is also rambling and discursive, which makes it less effective.

In analyzing the text of this speech, I recognize that it’s primarily intended to be spoken, not read as a document. I also recognize that head of the ethics office can’t take a partisan stand — that doing so would undermine his credibility. So perhaps Shaub is best served by taking a meandering path to his goal, rather than a direct one. But I still think he’d be better served by getting right to the point.

This talk contains powerful points, stated clearly

When making an argument, the louder you shout, the less credible you are. It’s more effective to say something simple and clear that sticks with the reader or listener.

After a few introductory remarks, Shaub gets right to the point with this sentence:

I need to talk about ethics today because the plan the President-elect has announced doesn’t meet the standards that the best of his nominees are meeting and that every President in the past four decades has met.

This does exactly what a leading sentence should do: tells you the main point. Regardless of whether you agree or not, you want to hear what Shaub is going to say to back this up.

The rest of the talk is full of other simple, clear, and important points, stated directly and in the first person. As with the opener, there’s no mistaking where Shaub stands. Excerpts:

It’s easy to see that the current plan does not achieve anything like the clean break Rex Tillerson is making from Exxon. Stepping back from running his business is meaningless from a conflict of interest perspective. The Presidency is a full-time job and he would’ve had to step back anyway. The idea of setting up a trust to hold his operating businesses adds nothing to the equation. This is not a blind trust—it’s not even close.

The only thing this has in common with a blind trust is the label, “trust.” His sons are still running the businesses, and, of course, he knows what he owns. His own attorney said today that he can’t “un-know” that he owns Trump tower. The same is true of his other holdings. The idea of limiting direct communication about the business is wholly inadequate. That’s not how a blind trust works. There’s not supposed to be any information at all.

I was especially troubled by the statement that the incoming administration is going to demand that OGE approve a diversified portfolio of assets. . . .  We would have told them that this arrangement fails to meet the statutory requirements.

Now, some have said that the President can’t have a conflict of interest, but that is quite obviously not true. I think the most charitable way to understand such statements is that they are referring to a particular conflict of interest law that doesn’t apply to the President. That law, 18 U.S.C. § 208, bars federal employees from participating in particular matters affecting their financial interests. Employees comply with that law by “recusing,” which is a lawyerly way of saying they have stay out of things affecting their financial interests. If they can’t stay out of these things, they have to sell off their assets or get a waiver. That’s what Presidential appointees do. But Congress understood that a President can’t recuse without depriving the American people of the services of their leader. That’s the reason why the law doesn’t apply to the President. [This is quite revealing. Trump says the conflict of interest law doesn’t apply to the President. Shaub reveals why it doesn’t apply — and goes on to say that presidents can have conflicts of interest, despite Trump’s statements.]

Shaub’s points are stronger because he describes the historical, nonpartisan role of the OGE and how it has acted in the past — again with first-person detail.

[Trump’s] attorney also said she feared the public might question the legitimacy of the sale price if he divested his assets. I wish she had spoken with those of us in the government who do this for a living. We would have reassured her that Presidential nominees in every administration agree to sell illiquid assets all the time.

[Trump’s] plan does not comport with the tradition of our Presidents over the past 40 years. This isn’t the way the Presidency has worked since Congress passed the Ethics in Government Act in 1978 in the immediate aftermath of the Watergate scandal. Since then, Presidents Jimmy Carter, Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and Barack Obama all either established blind trusts or limited their investments to non-conflicting assets like diversified mutual funds, which are exempt under the conflict of interest law.

I’ve had the honor and great privilege of serving as Director of the Office of Government Ethics for four years now. But I’ve been in ethics for much longer than that, having come up through the ranks as a career government ethics official. Over the years, I’ve worked closely with countless officials in administrations of both major parties. Ethics has no party.

I can’t count the number of times I’ve delivered the bad news that they needed to divest assets, break open trusts, and dissolve businesses. Most of these individuals have worked with us in good faith. Their basic patriotism usually prevails, as they agree to set aside their personal interests to serve their country’s interests.

As I said, every President in modern times has taken the strong medicine of divestiture. This means OGE Directors could always point to the President as a model. They could also rely on the President’s implicit assurance of support if anyone balked at doing what OGE asked them to do.

[I]t’s been the consistent policy of the executive branch that the President should act as though the financial conflict of interest law applied. One of my tweets and my letter to Congress cited an OGE opinion issued during the Reagan administration that articulated this very policy.

As we all know, one of the things that make America truly great is its system for preventing public corruption. For a long time now, OGE has helped developing countries set up their own systems for detecting and preventing conflicts of interest. Our executive branch ethics program is considered the gold standard internationally and has served as a model for the world. But that program starts with the Office of the President. The President-elect must show those in government—and those coming into government after his inauguration—that ethics matters.

How this talk could be better organized

Shaub’s argument goes all over the place. (I know he’s an ethics expert, not a public speaker or professional writer, but the whole reason my blog exists is to help everyone learn to express themselves better.) Here’s a breakdown of how Shaub has structured these remarks:

• Paragraph of “why I’m here.”
• Opening paragraph that lays out the main point.
• 3 paragraphs about Rex Tillerson, nominee for Secretary of State, and how he and others are complying with ethics rules.
• 6 paragraphs about how Trump’s plans are inadequate for presenting conflicts of interest
• 3 paragraphs about Shaub’s interactions with Trump’s team.
• 13 paragraphs about the historical background of conflicts of interest, the Office of Government Ethics, and the way it has worked
• A polite closing paragraph

This gets you there, but it could be easier to follow. If it were me giving this talk, this would be my fat outline for it.

Trump’s plan doesn’t meet the standards that the best of his nominees are meeting and that every President in the past four decades has met.

Why there are conflict of interest laws. Why the law doesn’t include the president — but he can still have conflicts of interest.

Take apart Trump’s plan. Why it’s not a blind trust. What that matters.

Historical background on conflicts of interest. I’ve worked with many presidents. Antonin Scalia quotes about conflict of interest.

Praise for Rex Tillerson’s process and hope for other nominees who are covered by the conflict of interest regulation.

Suggestion on what Trump must do next.

That’s less folksy, but for anyone reading the text of the speech, it would be more effective.

Shaub made his points well, and backed them up with clear facts and illuminating historical detail. He comes off as non-partisan and clear, which is why this talk is so troubling. My only criticism is that he needs to do better at getting to the point.