3rd Open Letter to President Obama

Dear Mr. President:

The loyalty oath mandated by the Constitution requires that Federal officials promise to “faithfully execute” the duties of their office and “preserve, protect and defend” the U.S. Constitution.  But a description of those terms is noticeably absent. Unfortunately, too many officials have filled the void with their own notions of loyalty.  All too often, public officials have abused the powers of their office to take care of themselves and their relatives, friends, supporters, and contributors.  Others have abused their powers to carry out or cover-up illegal activities (think, “Watergate” and “Iran-Contra” scandals).  However, unless convicted for theft, bribery or other criminal offenses, an official who abuses the powers of office to achieve personal benefit or misguided goals can’t be disqualified, much less prosecuted.

To change this culture of greed and moral corruption, you should  impose a code of ethics based upon a few simple precepts: (1) All Public Officials, whether elected or appointed, are bound by a fiduciary duty to exercise their powers for the public’s benefit, which means they must put the public’s interest ahead of any personal interests; (2) Getting elected, appointed, or job tenure is a purely personal interest and should NEVER be considered acting in the public’s interest; (3) The commission of illegal conduct or the cover-up of illegal conduct is morally corrupt and should NEVER be considered acting in the public’s interest; and (4) If a public official has a potential conflict between a private interest and the public’s interest in any matter over which the official may take or refuse to take official action, the official must DISCLOSE the potential conflict of interest before taking or refusing to take official action.

To put this Code of Ethics into play, you should establish a public ethics agency with a small staff (no more than 5 to start) and a small, but guaranteed, annual budget. The ethics agency must be insulated as much as possible from interference by any government branches, agencies or officials. This agency should have no investigative or prosecutorial powers; its sole duties would be to receive reports (on forms available on their website) of alleged unethical conduct or potential conflicts of interest and to make prima facie determinations regarding whether (1) the alleged unethical conduct potentially violated the Ethics Code (in which case the matter should be referred to another agency for investigation, and any disciplinary proceedings that might be warranted); and (2) whether a potential conflict of interest (see below) is sufficient to require an official’s recusal.

You also should institute a new Fiduciary Oath for all public officials, similar to the forms some states now require all fiduciaries (trustees, attorneys-in-fact, etc) to sign under oath before they’re allowed to exercise power over the assets or affairs of other persons.  This form should begin with a preamble, such as, “I, (name), acknowledge that as a public official I have a fiduciary duty to exercise my official duties and powers only in the best interests of the nation, putting the public welfare ahead of my personal interests in all official matters.  I understand that winning an election, appointment or job tenure, for me or any other person, is a purely personal interest, and I agree never to exercise the powers of my office, or engage in any activities while acting in an official capacity, for the primary purpose of helping myself or any other person win an election, appointment or job tenure.  I further understand that using the power of my office to commit illegal activities or cover-up illegal activities committed by me or any other person is an abuse of power, unethical and morally corrupt.  Therefore, I agree never to exercise my official duties or powers for such purposes.”

Following the preamble, the specific conflict of interest provisions should be laid out:

1.  If I have, or any family member, friend, supporter or contributor has, a financial or other personal interest in any legislation, proceeding, action, determination or decision on which I may act or participate, I will report that potential conflict of interest to the ethics agency before taking any action in that matter.

2.  If the ethics agency determines that the potential conflict of interest warrants my recusal, I will recuse myself from taking any actions in that matter unless I receive written certifications that my decisions/actions will be in the best interests of the nation regardless of the potential conflict-

• If I am a subordinate officer working for the Executive Branch (including the White House, or any federal department or agency), certification from the next two superior officers in my chain of command or reporting;

• If I am working for a U.S. senator or representative, certification from the congressperson for whom I work;

• If I am working for a federal judge, certification from the judge for whom I work;

• If I am a senator or representative, certification from both the majority and minority leaders of my House of Congress, and if I am a majority or minority leader, certification from both leaders of the other House of Congress;

• If I am a federal judge, certification from the president judge or chief judge of my court, and if I am a president or chief judge, certification from the president or chief judge of the court to which my decisions would normally be appealed;

• If I am the head officer of a department or agency, certification from the cabinet officer who has jurisdiction over my department or agency, and if I am a cabinet officer, certification from the President or Vice-President.

• If I am the chief justice of the Supreme Court, certification from the Speaker of the House and the President or Vice-President;

• If I am the President or Vice-President, certification from the next two officers in line of succession.

3.  I will not attempt to directly or indirectly influence the action or decision of any other public official regarding my recusal, or regarding any action or decision concerning any matter in which I am recused.

4.  I will not use my office to obtain any undisclosed profit or benefit of any kind for myself, a family member, friend, contributor or any other person or entity.

5.  I will not put the interests of any special interest group ahead of the interests of the nation as a whole.

6.  If a public official, contributor, or other person attempts to improperly influence my decision or action in any official matter by the use of threats, bribery or gratuities, or in any other manner, I will immediately report such attempt to the ethics agency.

7.  I understand that accepting a gratuity of any kind, including campaign contributions or anything else of value, that was conferred or offered with the intent to influence my official actions in any matter—regardless of whether the gratuity was conferred before or after my official action was taken, or whether the “intent to influence” was conveyed to me as part of an express agreement, a handshake, a wink and nod, or any other silent or implied understanding—is improper and violates the Ethics Code. By signing this Fiduciary Oath I certify that I will not accept any such gratuities.

8.  With respect to any such gratuities I received or agreed to accept before signing this Fiduciary Oath, I certify that before signing this Oath-

• I reported such gratuities to the ethics agency; and,

• I returned any gratuities already received.

Finally, Mr. President, I suggest that you work with Congress to make violation of the Fiduciary Oath a crime, punishable by imprisonment where appropriate, disgorgement of wrongfully obtained gratuities or profits, dismissal from office, and disqualification for future elected or appointed public office.

Respectfully,

Unabashed Truthteller

Criminal Justice?

There are few institutions in American society about which people have more misguided ideas than the criminal justice system. As I use that term, the “criminal justice system”  includes professional participants (judges, prosecutors, criminal defense lawyers, police and other law enforcement agents) and lay participants (victims, witnesses, defendants and jurors).

For years I was a professional participant in the criminal justice system, and know it well. I have heard defense attorneys complain about over-zealous prosecutors, prosecutors complain about over-zealous defense attorneys, judges complain about over-zealous or unprepared lawyers (on both sides), prosecutors complain about judges being too lenient or corrupt, and defense attorneys complain about judges being too harsh or forgetting their friends. I have heard police officers complain that defense attorneys bribe judges and suborn perjured testimony to get their clients acquitted, and defense attorneys complain that police officers commit perjury to convict their clients.  I have heard victims and witnesses complain that the system favors defendants by allowing multiple delays, and defendants  claim that the system is biased against them because (for example) so many black men are convicted of crimes and imprisoned.  In other words, there is an endless litany of complaints and suspicions about the system, which naturally lead to the ultimate question: Does the “criminal justice system” ever achieve justice?!!

That has been a difficult question to answer, because “justice” is an intangible concept.  It’s hard to quantify something that cannot be seen, heard or touched. It’s qualities normally are assessed by people in the context of their values, and their stake in the criminal proceedings, which in turn influence how those people perceive events or outcomes.  Though it is risky to generalize, for the sake of providing examples of this principle I will make certain assumptions, with the understanding that they might not hold true in every situation: A robbery victim who was beaten during a store robbery probably feels that the defendant should receive a lengthy prison sentence;  The defendant that committed the robbery, but entered a guilty plea instead of going to trial, probably feels that he deserves a probationary sentence for pleading guilty; The investigators who accumulated the evidence, interviewed witnesses, and arrested the defendant, probably feel that a probationary sentence makes a mockery of their work and the criminal justice system;  Prisoners’ rights groups probably feel that prisons are just for warehousing offenders, and that a prison sentence would waste defendant’s potential for rehabilitation;  Victims’ rights groups probably feel that a probationary sentence would denigrate the seriousness of defendant’s crimes;   Court Administrators and supervising judges probably feel that they need to encourage guilty pleas to trim the court backlog, and that defendants will stop pleading guilty if they’re not assured of lenient sentences;  Prison officials probably feel that probationary sentences will help avoid prison overcrowding; The defendant’s family probably feels that if he is on probation he will get a job and help support his family; The Neighborhood Merchants Association and Community Group probably feel that a lenient sentence will send the message that it’s okay to rob stores in that neighborhood, because the perpetrators won’t get prison sentences. And so it goes…

If the judge imposes probation, the victim, the prosecutor and half of the above stakeholders will feel that justice was denied. If the judge imposes a long prison sentence, the defendant, his defense attorney and the other half of the above stakeholders  will feel that justice was denied. If the judge split’s the baby by imposing a short prison sentence–which neither side asked for–both parties, and their respective stakeholders, may feel that justice was denied!  It is very rare indeed that both sides in a criminal case, and their respective stakeholders, will agree that justice was served.

Despite this conundrum, I believe that a fair systemic measure of justice-achieved or justice-denied is within our reach.  The solution is to look at the small picture instead of the big picture, focusing one-by-one on the participant groups and the processes they apply to handling cases in the criminal justice system, rather than the results of those cases.  It is my thesis that, in any criminal case, if all of the participants follow the correct processes fairly and without bias, it should be said that “justice was served,” but, if that does not occur, it should be said that “justice was denied.” The determination of whether justice prevailed should be made regardless of whether a defendant is convicted or acquitted, sentenced to probation or prison, and, in capital cases, given a life or death sentence.

To respond to the charge that the criminal justice system is racist, I will make an exception to the small-picture approach, rather than addressing that issue multiple times in the context of each participant group.  This issue will be the subject of my next posting on the Criminal Justice System.  In successive postings I will address, in turn, each participant group’s role and processes, separating fact from fiction, and reality from myth, whenever possible.

Unabashed Truthteller