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.
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