Every law has both a letter and a spirit. Upon taking office each of our Presidents has sworn to “ faithfully execute the Office of President of the United States, and … to the best of my ability, preserve, protect and defend the Constitution of the United States”. More particularly the President is obligated to “take Care that the Laws be faithfully executed”. There is little to guide us as to the meaning of “faithfully”. Is it subjective good will? Compliance with the general penal laws? Inspired by faith in God?
The President has discharged the Director of the FBI who has continued an investigation into how, why, and with what consequence the Russian Republic intervened in our Presidential election. Such a violation of our sovereignty is unprecedented and disturbing. Mr. Trump has repeatedly denounced the press for following the story – calling it “fake news”. We have no doubt that the President has full control over the executive branch. But his choice of who shall be chosen is subject to constraints. The Director of the Federal Bureau of Investigation serves at the pleasure of a President. But the choice of that officer can be made only with the consent of the Senate. And the term of office is limited to ten years – a time period intended to divorce the FBI from the election cycle.
The President is, thus constrained in only limited ways. How, then should he be guided in the exercise of his discretion and his ultimate control of the results of the investigation. During the Federal Convention of 1787 the executive was routinely referred to as the Magistrate. That implies disinterest – or interest only is what faithful execution requires. The President – and the Congress - would do well to look at two reference points to determine how their authority should be exercised.
The first is the Rules of Professional Conduct governing lawyers. It provides in RPC 1.7 Concurrent Conflicts of Interest that a concurrent conflict of interest exists if:
“(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”
The personal interest of the President is certainly present in an investigation which could affect how the legitimacy of his victory is viewed. The Attorney General of the United States has already recused himself. So should the President.
A similar result is implied by reference to the Coode of Conduct of United States Judges. Canon Three provides:” A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently”. The same principle should govern the conduct of the chief Magistrate. When his own interests – political or personal – present an appearance of impropriety a President, like a judge, should recuse. Although the Independent Counsel law expired, there is a known path: appoint special counsel to complete the investigation and recommend any reforms and pursue any charges that are warranted.
We urge our legislators – and our President – to choose that course: appoint special counsel to conclude the investigation “fairly, impartially, and diligently.
- George Conk
- May 11, 2017
Rule 1.7 Conflict Of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.