Looking at the Mueller Report Through an Ethical Lens

Hana Callaghan is the Director of the Government Ethics Program at the Markkula Center for Applied Ethics and is the author of, “Campaign Ethics, A Field Guide.” Views are her own.

When Special Counsel Robert Mueller’s Russia Report was released to the public, CNN’s Chris Cuomo asked Rudy Giuliani to make a moral judgment about President Trump’s conduct detailed in its pages. After a deep sigh, Giuliani said, “Chris, if we are going to make moral judgments about everyone in public office, we will have no-one left in public office!”

First of all, I don’t think that’s true. I truly believe that there are plenty of ethical and moral people in public service. And second of all, what a sad state of affairs if the new normal is that we no longer expect and demand ethical behavior from our public officials. 

In Senate hearings about the Russia Report, Senator Mazie Hirono asked Attorney General Bill Barr if he thought the president’s conduct revealed in the Report was “ok.” Barr deflected the question, returning to the legal analysis. He may not be in the business of evaluating the ethics of public officials, but we the American people should be. Now that Robert Mueller’s report on Russian interference in the 2016 election has been made public, we have the unique opportunity to examine Donald Trump’s conduct -- both during and after the campaign -- through an ethical lens.

Ethical Principles

Ethics as a general concept deals with our behavior in everyday life: Do we conduct ourselves guided by accepted values such as fairness, honesty, and integrity? Is our behavior in furtherance of the common good? Do we consider the impact that our conduct will have on others? For more information, the Markkula Center for Applied Ethics has developed a Framework for Ethical Decision Making.

The concept of political ethics is concerned with the personal pursuit of running for office. Our political process is based on the ethical ideal of creating an informed electorate. Accordingly, ethical candidates run campaigns that are substantive, honest, and devoid of irrelevant vitriol and dirty tricks. In addition to running a campaign that will give the electorate information that will inform their decision, ethical candidates must be good stewards of donated funds and make promises that are consistent and capable of being achieved. As participants in democracy, they also have an ethical responsibility to maintain the integrity of our electoral process.

The concept of government ethics is concerned with the additional ethical duties public officials assume when they enter public service. In the U.S., we the people are sovereign, and we delegate authority to those who would govern on our behalf. We place these public servants in positions of trust. We trust them with our public treasury, we trust them to act on our behalf, and when they do act we trust them to put the public’s interest before their own personal concerns. Because of this position of trust, they are in essence public fiduciaries.

Upon taking the oath of office, public fiduciaries take on certain fiduciary obligations such as the duty of loyalty (to put the public’s interest before their own), the duty of care (to faithfully execute the requirements of their office), the duty of fairness and impartiality (to treat all constituents equally), and the duties of candor, transparency and accountability (so that the public can know what its government representatives are doing).

In addition, public fiduciaries have a duty to maintain trust in government because without trust, government doesn’t work. When the citizenry loses trust, civic engagement falters and compliance fails. Because of this duty to maintain trust in government they have a corresponding duty to avoid even the appearance of impropriety.

Given these principles of political and governmental ethics, let’s evaluate the ethics of Candidate Trump and President Trump in the context of the Mueller Report.

The Ethics of Candidate Trump

According to the Mueller Report, a foreign adversary engaged in, “sweeping and systemic interference in the 2016 election. In addition to the cyber-attacks and misinformation campaign, we know that:

• The Trump Campaign was contacted multiple times by Russian representatives with overtures of assistance by the Russian government;
• The Trump Campaign softened the GOP platform on Russia;
• Candidate Trump spoke glowingly of Russian President Putin;
• Candidate Trump lied to the electorate about his business dealings in Russia;
• Candidate Trump called for Russia to illegally seek and release Clinton emails;
• The Trump Campaign welcomed the illegally obtained Wikileaks email dumps and planned strategy in anticipation of them;
• In spite of the fact that the FBI warned the Trump Campaign that Russia might interfere in the 2016 election, the Mueller Report does not cite any examples where the Campaign reported the Russian overtures to authorities.

The Office of Special Counsel did not find enough evidence of an agreement between Russia and the Campaign necessary to sustain a conviction of a criminal conspiracy between Russia and the Campaign. But, regardless of illegality, did the Campaign fail in its ethical responsibilities to inform the electorate and to maintain the integrity of our political process? I suggest that it did. Not only was the Candidate untruthful, his conduct encouraged wrongdoing on the part of a foreign adversary, the consequences of which directly impacted the integrity of the 2016 election and threatens voter confidence in future electoral cycles.

Evan McMullin, a former Republican, former CIA agent, and 2016 presidential candidate put it this way:

“In encounter after encounter, Trump and his campaign entertained and encouraged Kremlin election interference with a wink and a nod ... Had the president done what almost any patriotic American would have done -- reject Russia’s approaches and report them to authorities -- he would have reduced Moscow’s willingness to continue by signaling that doing so would trigger serious consequences, no matter who won the election. Instead, Trump chose his own political and financial interests over our national security and the basic democratic rights of all Americans.”

As of right now there is no legal duty to report campaign overtures from foreign countries, but I suggest that in order to maintain the integrity of electoral process and trust in our democratic institutions, there is an ethical duty to do so.

The Ethics of President Trump

The Special Counsel’s investigation unearthed a series of actions by President Trump, after he took the Oath of Office, designed to obstruct the Russia probe and mislead the American people. The Report details how the president:

• Fired Director of the FBI, James Comey;
• Directed White House Counsel Don McGahn to have the deputy attorney general fire the special counsel;
• Asked the White House counsel to create a false record about that request;
• Signaled to witnesses that he approved or disapproved of their testimony;
• Threatened a witness and the witness’ family members with legal process;
• Lied to the American people when he denied his role in drafting the Donald Trump Jr. statement about the Trump Tower meeting;
• Called into question the integrity of the investigation, calling it a witch hunt;
• Failed to provide responsive answers to written questions; and
• Refused to be interviewed by the special counsel.

Once the president took the oath of office he assumed the fiduciary duties I spoke of earlier. He has a duty to put the public’s interest before his own personal or political pursuits. It appears from his many public statements that the president was against the Russia probe because it would call into question his electoral victory and the legitimacy of his presidency. He may also have been unsure whether he or his campaign crossed a legal line in their dealings with the Russians and he may have been motivated by a desire to avoid legal liability for himself and his family.

Maintaining his legitimacy and avoiding prosecution are private concerns personal to the president. When he tried to end or restrict the investigation, he breached his duty of loyalty because he was putting these personal concerns over the interest of the public in learning about the extent of Russian interference in our elections.

He also violated his duty of candor when he lied about his business dealings in Russia and his role in drafting the deceptive memo about Donald Trump Jr.’s Trump Tower meeting with Russian operatives.

He violated notions of transparency when he failed to provide responsive answers to written questions -- or sit down for an interview -- or release his tax returns.

Finally, one could make a good case that his conduct throughout gives the appearance of impropriety that has certainly led to distrust of his administration and distrust of government in general.

The Remedy for Unethical Behavior

In general, the remedy for unethical, but not illegal, behavior of a public official is found at the ballot box. It is unlikely that Congress will take the drastic and divisive step of impeaching a sitting president absent a finding of illegality. (Note that Congress may yet make such a finding after the conclusion of other investigations.) However, there is one other remedy for unethical behavior -- Congress could censure the president for unethical actions thus showing its disapproval of his conduct and sending a strong signal to Russia.

The Good News

Finally, there is some good news that came out of the Mueller Report: Newsflash, Rudy Giuliani -- There are indeed still ethical people in the highest levels of government. According to Mueller:

“The president's efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the president declined to carry out orders or accede to his requests.”

The Report highlights ethical heroes—those Republicans who, at the risk of their own careers, stood up to power and either refused or refrained from actions that they deemed to be wrong.

They include:

• James Comey -- For refusing to drop an investigation into General Flynn and for refusing to declare loyalty to the president -- when his loyalty was, and should be, to the American people;
• Chris Christie, who refused to contact Comey and let him know how much the president liked Comey because he didn’t want to be in the position of trying to influence the FBI Director;
• Rod Rosenstein for refusing to hold a press conference saying that the Comey firing was his idea.
• Jeff Sessions -- for recusing himself from the Russia investigation and refusing to undo his recusal in spite of public and private pressure by the president to do so;
• Rick Dearborn, a senior White House official, who refused to deliver a message to Attorney General Sessions that the president wanted him to restrict the scope of the Mueller investigation to future elections only; and finally
• Don McGahn for refusing the president’s request that he direct the deputy attorney general to fire Bob Mueller, and for refusing to create a deceptive record regarding that request.

To these ethical heroes and to the countless others who work in government to further the common good, we thank you for your service.