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