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Ethics Lawyers Call Trump's Business Conflicts 'Nakedly Unconstitutional'

Two ethics lawyers who worked for President Bush and President Obama, respectively, outline their concerns about a Donald Trump presidency.




This is FRESH AIR. I'm Terry Gross. Donald Trump has said he doesn't have to worry about conflicts of interest because the laws regarding conflicts don't apply to the president. My two guests have become a bipartisan duo famous for disagreeing with Trump about conflicts of interest. They say never in American history has a president-elect posed more conflict of interest and foreign entanglement questions than Donald Trump.

Trump's promise to put his business in a trust controlled by his two oldest sons doesn't come close to addressing my guests' concerns. Richard Painter served as chief ethics lawyer for President George W. Bush. Norm Eisen served as President Obama's chief ethics lawyer. Eisen recently returned to Citizens for Responsibility and Ethics in Washington which he co-founded. Richard Painter is becoming vice chairman. Norm Eisen, Richard Painter, welcome to FRESH AIR.

I want to start by asking you each to choose a conflict issue that you consider to be one of the most serious ones facing president-elect who will momentarily be President Donald Trump. Norm Eisen, you want to start?

NORM EISEN: The most serious conflicts issue that Donald Trump faces is the one that animated the anxieties of our founders of the United States so much that they put it in the Constitution. A president is not permitted to receive cash and other benefits from foreign governments. And yet, Donald Trump is getting a steady flow of them around the world and right here in the United States that is frankly and nakedly unconstitutional. And it is extraordinary that we'll have a president who's violating the constitutional conflicts clause, the - so-called the Emoluments Clause as soon as he takes the oath of office.

GROSS: Richard Painter, I'm going to ask you to choose a conflict that you think is very serious and faces Donald Trump.

RICHARD PAINTER: Well, I believe that the dealings with foreign governments also are very, very problematic. And (unintelligible) as Norm points out, unconstitutional. The Bank of China, I believe, has loaned a significant amount of money to the Trump Organization and various other government-owned banks. And if those loans aren't renegotiated, refinanced with private banks, that's an enormous amount of money that the Trump Organization is dependent upon foreign government-owned banks for.

And that is, I think, a serious violation of the Emoluments Clause. And this has real repercussions because we are about to negotiate a lot of trade agreements. He's made trade a centerpiece of his campaign, and now we have to negotiate a trade agreement with Great Britain which is leaving the EU. There are other trade agreements which President-elect Trump says he is going to renegotiate and protect American jobs. And yet, he's involved in foreign governments. And to the extent he's borrowing money from foreign governments may be dependent upon those foreign governments for the success of his business enterprise.

We need transparency as well. That's another issue I'm very concerned about. The President-elect did not release his tax returns. Every other candidate for president has released his tax returns, but he didn't want to. And he apparently won't, and we just have no idea where the financing is coming from for all these companies he owns all over the world, all these interests.

GROSS: Explain more of why it matters where his financing is coming from. What can that affect?

PAINTER: When you - a public official is indebted to other persons and to other entities and, perhaps, even to foreign governments and foreign government-owned banks, the public official is dependent upon those persons who can pull a line of credit and, perhaps, even cause their business to collapse. That is a dependency relationship, and there's a lot of it in the real estate business, always has been. It's usually at the corporate level.

And the reason that's important is that that is not disclosed in his financial disclosure form - is debt owed by the various corporations that he owns of which there are dozens and dozens that own real estate or licensing agreements and so forth. But the debt at the corporate level is critically important because the debt holder could pull the rug out, you know, to many of these credit agreements. They can stop extending credit, and that could cause the business to collapse.

The problem is we have no idea how much debt there is or where it's coming from in the Trump business empire because he hasn't disclose his taxes, and he's holding a lot of these privately held corporations. And their debt is not on the form 278 disclosure form that he already filed.

GROSS: So you're concerned that his relations to foreign governments might be shaped in part by needing those governments to keep refinancing his debts or to not, you know, raise interest rates on his loans - I don't know a lot about finance...

PAINTER: Yes, yes.

GROSS: I'm just kind of guessing here.


PAINTER: Indeed.

GROSS: So straighten me out.

PAINTER: And it goes on the Emoluments Clause. I mean, the Emoluments Clause is a constitutional issue. But consider, for example, the debt from Deutsche Bank. Now, Deutsche Bank is a private bank, but we already know about very large loans from Deutsche Bank. And so that's a dependency relationship. And yet, the president is supposed to be regulating the - or supervising the people who regulate the financial services sector.

They're talking about repealing Dodd-Frank. And yet, the bank regulations - and it's scaling back on bank regulations making it easier for banks to loan money against collateral which is almost always real estate. And that's what they're talking about doing in this administration. And here's the president of the United States dependent upon banks, some government-owned, some private banks - all over the world. And it's a serious conflict of interest there when he's himself having to borrow so much money from banks.

EISEN: Terry, here's how I think of it in basic terms. So many people in the heartland of the country rightly are angry that their lives have been devastated by economic and trade developments of recent years and also many of them have themselves or sent their kids abroad to fight America's wars. With Donald Trump receiving these enormous sums from foreign governments and having strong property interests and relationships in many foreign governments, when he makes his decisions on domestic and economic policy, how will we know that he is not using the White House to do deals for himself at the expense of the people who voted for him?

And when he makes his decisions to use America's military force or threaten it abroad, how will we know he's not putting ordinary Americans' lives at risk in order to protect his properties and his pocket and his wallet rather than in the best interests of our country? I think it's fair for people to ask those questions, and that is why Richard and I have been articulating the conflicts problem publicly and vigorously.

GROSS: If you're just joining us, I have two guests, and they're both ethics experts. Norm Eisen served as President Obama's special counsel and special assistant on ethics and government reform. He was called the ethics czar. Richard Painter was President George W. Bush's chief ethics lawyer. He was White House associate counsel to President Bush. We're going to take a short break here and then we'll be right back and talk more about conflicts of interest. This is FRESH AIR.


GROSS: This is FRESH AIR, and if you're just joining us, we're talking about conflicts of interest faced by Donald Trump. I have two guests. Norm Eisen served as the ethics czar for President Obama. He was the president's special counsel and special assistant on ethics and government reform. And Richard Painter served as President George W. Bush's chief ethics lawyer. He was White House associate counsel to the president.

So OK. We've talked about a few conflicts of interests you've cited. We'll talk about others a little later, but I want to talk about possible consequences. First, I want to know is there a referee? Is there somebody who is supposed to say, sorry, that's a conflict, you cannot do that?

EISEN: There is a referee. His name is Walter Shaub. He's the director of the Office of Government Ethics, and he bravely and, in my view, extraordinarily - it was one of the most courageous acts of government service that I've seen since the election of Mr. Trump - Director Shaub came - spoke out publicly and said that Mr. Trump's plan is insufficient, so the referee has blown the whistle.

This - what Mr. Trump is doing breaks a four-decade bipartisan consensus followed by Democrats and Republicans alike, that the president should divest his businesses into a blind trust managed by an independent trustee, sells the businesses and reinvests in conflict-free assets or those unknown to the president. Shaub has spoken out. There can be no doubt. The Trump plan does not meet precedent or what is required or ethics standards.

GROSS: Yes. Well, Walter Shaub has spoken out and in return, he's about to be questioned by Jason Chaffetz, the head of the Committee on Oversight and Government Reform. And I'll say that before that, the House at the very beginning of the new session wanted to do away with the Office of Congressional Ethics. They pulled back from that after Donald Trump tweeted questioning if this should be their number-one priority in the new Congress. So what is your reaction to attempts to either silence or investigate government ethics watchdog groups?

PAINTER: Well, I'll say something about that. I've been involved in partisan Republican politics for almost 30 years, and I'm all for partisan politics in its place, but that congressional committee of so-called Oversight and Government Reform has been a politicized body engaged in politicized investigations for a long time. We had some problems with that committee under President George W. Bush as soon as the Democrats got control of the House, and they started serving up subpoenas right and left - some of them justified, some of them not.

But this politicization of the House Oversight Committee accelerated dramatically under the Obama administration once the Republicans got control of the House of Representatives. And, as I say, there's a role for partisan Republican politics. It just isn't appropriate for that committee's subpoena power to be used that way. And then they got the FBI involved in the Clinton email thing that went on for a year and a half, and we all know how that ended in the week before the election when they put the FBI a letter up on the Internet to throw the election which works so it had been rewarded for this conduct. And now what we have is the chairman of that committee instead of focusing on the serious problems with the respect to the president-elect's conflicts of interest, the potential constitutional violation that we will have on Friday because of the foreign government payments, that committee doesn't want to focus on that.

All they want to do is start to harass the Office of Government Ethics and try and investigate the Office of Government Ethics simply because Walter Shaub had the courage to speak out and say exactly what I've been saying in Norm's eyes and in others that the president's divestiture plan is inadequate. And this, by the way, comes on the heels of the United States House of Representatives trying over the holiday weekend to abolish their own ethics office called the Office of Congressional Ethics, a snake a move that was so offensive that even President-elect Donald Trump tweeted out that they should cut it out. And they had to retreat with their tail between their legs.

So this is just pure partisan politics coming out of the House Oversight Committee, and I'm embarrassed, as I say as having been a Republican for many years, to see them bring in partisan politics into their work. And now harass the Office of Government Ethics for doing its job.

GROSS: I want to get back to enforcement. We talked about so who's the referee here who can blow the whistle? You said that that, in this case, would be Walter Shaub of the Office of Government Ethics, so we talked about that. So - but who gets to actually enforce it? Who actually decides has Donald Trump after he's sworn in violated codes of ethics?

EISEN: There are five enforcers. The first will be the - most likely the judicial branch. We do not believe that a naked act of constitutional aggression of this kind will be left stand by the courts whose job it is, after all, to be the guardians of the Constitution and who have co-equal authority with the executive branch in our separation of powers system together with the legislative branch, the third branch of government. Of course, that's going to require somebody to bring litigation. And we think they'll be a plethora of litigation about this.

The next likely enforcer is the Congress, the legislative branch who you might say, Terry, wait a minute, Congress is in the hands of the same party as the White House. Are they really going to pivot against Donald Trump? But let's remember that the Senate hangs by just a few votes, and there's some very independent-minded Republicans in the Senate. And I think when we get to our first scandal - and scandal will be inevitable with this arrangement that Mr. Trump is maintaining where he's hanging onto his ownership interests - so I think you'll see in the Senate that some of those Republicans join with the Democrats to ask for documents, to ask for witnesses, to call for hearings.

So I think you'll see some legislative oversight. Mr. Trump's own executive branch - you've got a very independent FBI you've got career public corruption prosecutors. And, again, when those scandals are tripped to maybe even now how extraordinary is it? Mr. Trump announced at his press conference that he received a $2 billion offer the weekend before the press conference from an individual in Dubai. Do we really believe that that offer was not motivated in any part by attempting to curry official favor with the incoming president of the United States?

If I were the FBI, I would be very interested in exploring that question. It may be going on already. And then, finally, the fourth and fifth - the state attorneys general will have jurisdiction because he's - Trump has insisted on holding onto his businesses. Those businesses are operating in the states. So I think you're going to see some state AG oversight. And fifth and, finally - the American people - Mr. Trump already has historically low approval ratings. I believe they'll continue to plummet because of these conflicts, and at some point they get low enough, the American people make their voice heard. And you could see some electoral jeopardy for Trump supporters. So those are the enforcers after the whistle is blown.

GROSS: Are any of the things that you mentioned impeachable offenses or criminal offenses?

PAINTER: It all depends on what happens. I think a serious and ongoing violation of the Emoluments Clause where the president continues to receive foreign government money would certainly lead to an investigation - or should - in Congress. And then depending on the results of that investigation and whether the president is willing to take corrective action if he's not, I think, could lead to impeachment.

I believe that was the remedy the founders envisioned for public corruption. And if we can't get effective oversight from a Republican-controlled Congress, I'm sorry to say that having supported many Republicans for election, but if they can't do their jobs simply because the president's a Republican and all they want to do is sit around and maybe keep going through Hillary Clinton's emails or something that that's their idea of oversight, then the voters are going to have to, well, arrange a personnel change up in the House of Representatives.

GROSS: Norm Eisen, you mentioned the possibility of litigation. What type of litigation you expect is possible?

EISEN: Terry, I believe that you will see complaints filed pretty briskly following Mr. Trump's swearing in in which various plaintiffs allege that they have been injured by Mr. Trump's violations of the Constitution, specifically Mr. Trump's competitors, his hotel, for example, in Washington has become a giant emoluments vortex sucking in all of the government - foreign government business from all of Washington, D.C., with the diplomats and foreign government officials stumbling all over each other to utilize that property sometimes for very big-ticket events.

You know, if you take out a ballroom - a large ballroom for an evening or an entire floor for a visiting foreign dignitary, that can get to be very expensive. So if there are businesses of any kind, not just hotels, but businesses of any kind in the neighborhood, restaurants, halls that used to rent their space out - mom and pop, bed and breakfast where visiting dignitary might have stayed - all of those would be potential plaintiffs. I think they'd have a good case.

And there's a variety - that's the model. It's somebody who's hurt as a consequence of Donald Trump's violating the Constitution. And there's a lot of different ways - some we probably can't imagine yet that people are going to be injured. I'd love to see it. Richard pointed to this. I'd love to see the first person in the Rust Belt, the first Trump voter who thought his job was going to be saved who loses his job because Trump is getting a large cash payment from China or what have you against the Constitution, and that individual says, hey, he's doing deals to line his own pockets, not to benefit me and takes him to court. You know, so you're going to see a lot of litigation about this.

GROSS: My guests are Norm Eisen who was President Obama's chief ethics lawyer and Richard Painter who was President George W. Bush's chief ethics lawyer. After a break, we'll talk - excuse me - we'll talk about some of their other concerns about conflicts of interest, including the potential security risks of having the Trump name on properties around the world. And I'll ask what they think of President Trump being an executive producer of the NBC series "The New Celebrity Apprentice." I'm Terry Gross, and this is FRESH AIR.


GROSS: This is FRESH AIR. I'm Terry Gross. We're talking about the potential conflicts of interest President Donald Trump will face and what the political and legal consequences might be. My guests are Norm Eisen, who served as President Obama's chief ethics lawyer, and Richard Painter, who was President George W. Bush's chief ethics lawyer. We're going to get back to the subject of the Trump International Hotel in the old Post Office Building in Washington, D.C. The building is owned by the federal government and is leased to the Trump Organization by the General Services Administration, the government agency in charge of managing and preserving government buildings.

Norm Eisen, you mentioned the Trump Hotel that's in the Old Post Office building just a few blocks from the White House. Donald Trump has a 60-year lease on that. But the lease says it can't be given to an elected official, which Donald Trump is. So even if he puts that hotel into a trust, he knows it's in the trust. So how can that be if he's violating the lease?

EISEN: Well, Terry, contrast my hero - he is an ethics hero - Walt Shaub with the officials who are responsible for that lease. We have an imminent contract violation coming up. Mr. Trump has offered a reading of that clause that strains common sense. He says it only applied at the moment that the contract was entered into. And I don't understand why GSA is not seeking some remedies. I know it is tough.

This is why Director Shaub is so remarkable. I know it is tough when you're about to work for the most powerful man in the world. And you're going to be answerable to him. He's a billionaire to boot, and he's one who's not known for a philosophy of forgive-and-forget. But GSA should be establishing the predicate for legal remedies here. I hope they'll go to court. It will be a little more complicated after January 20 because Donald Trump's going to be on both sides of this lease. So this is only another example...

GROSS: What do you mean by that, that he'll be on both sides of the lease?

EISEN: Well he's the lessee. Right? He's occupying the building. And the lessor of the building is the United States. Well, guess who's going to be in charge of the United States government? None other than Donald Trump. It - that can't be right.

Maybe there is some clever - more clever, I hope, than the legal strategies that were announced at his press conference, which were internally self-contradictory - maybe there's some clever legal solution that he's come up with. Or maybe somewhere in that giant pile of file folders - who knows what was actually in them, if anything? We don't know - next to him at his press conference. They were guarded, the supposed trust documents.

His staff wouldn't let reporters look at them. Maybe there is a solution in there that's going to resolve this conflict over the Old Post Office lease where the Trump hotel is. But if not, you're going to have yet another one of these proliferating legal problems. I hope somebody is brave enough to step forward. With the GSA case, it's going to be harder for an outside party to do it.

GROSS: So here's another legal problem that might face Donald Trump. Summer Zervos, a former "Apprentice" contestant who, during the presidential campaign, accused Donald Trump of having groped and kissed her without consent in his office and at a hotel, is now suing him for defamation because he denied that it happened. So she says she would withdraw the suit if he admitted that she was right and he really did what she said.

If it does go to court and if he is deposed, is there the possibility that outtakes from the "Apprentice" would be subpoenaed and that it might have information like what we learned about the groping video? What kind of repercussions do you see this lawsuit as possibly having?

EISEN: The importance of the question is that once you're in any single piece of litigation, discovery can be very wide-ranging. The discovery in this case could very well reach the issues you describe. The most interesting subject for discovery will be in this, probably more so in other cases, Trump's finances because we haven't yet been able to explore, for example, his taxes. Tax returns are sometimes produced in litigation. But the reason your question merits serious consideration above all, Terry, is that there already are dozens of Trump-related lawsuits pending. And many more will flourish as a result of him hanging on to his conflicted business interests.

It's going to be a massive distraction for him. Part of the reason that Richard and I are arguing so publicly and so vehemently for a solution here - we think it's bad for the country. We think it's bad for the institution of the White House, one where we both worked and one that we revere. We think it's bad for Donald Trump. He's getting into a situation that is going to be distracting and damaging, is going to affect his ability to function as president and so affect all of our lives.

GROSS: Let's talk about how Donald Trump has proposed dealing with his business conflicts of interest. First of all, he said that presidents don't have conflicts of interest - and we'll get to that a little later. But he's proposed having his sons take over his businesses. Why don't you outline for us what Donald Trump has proposed and what your reaction to that is?

EISEN: Well, the Trump proposal Richard and I evaluate based on five points. And sadly, it's deficient on all five. The first thing we wanted to look at was ownership - did he follow the 40-year practice of presidents of both parties in transferring ownership to a trustee in a blind trust? And the answer is no. He did not make a clean break in ownership. Instead, he hung on to the ownership, giving management to his sons - as far as we can tell. The details are very scanty. Terry, it's as if he gave his wallet full of money and credit cards to his sons. And he said, I want you to do this shopping for me. But shop wisely - he threatened them. It's the opposite of the second thing we're looking for, which is an independent trustee.

Historically, the way this is done is you bring in a true outside professional to manage these kinds of trusts so that people can have confidence that the trustee, the person who's managing the president's businesses, is not leaking information. Instead, of course, (laughter) Donald Trump used his sons. Family members are the antithesis of an independent trustee. And the third trustee, little noticed, is a long-time Trump employee, his CFO. Again, doesn't measure up.

Third thing we wanted - blind trust. OGE has held, although the blind trust law does not, as a technical matter, necessarily apply to presidents, here there's a very powerful reason to do it - these foreign government flows of cash and benefits, these emoluments that are coming into the Trump businesses. So you really should have done a traditional - for constitutional reasons, you should have set up that trust. Again, no-go.

And then the final point, we wanted a detailed description of how the ethics wall was going to be put into place to keep information from leaking back and forth across that wall. Of course, what we got instead - very scantily described ethics monitor - no description of what standards, what authority that person will have. I would describe it as an ethics sieve, not an ethics wall.

GROSS: So you would like to see Donald Trump completely divest from his businesses, put all the money in a blind trust. Is it possible that he can't do that because, you know, his properties, or some of his properties, are leveraged?

EISEN: This is one of the...

GROSS: You know, he's in debt. Yeah?

EISEN: Terry, this is one of the silliest assertions that is being made. It's very simple for Donald Trump to do what Richard and I are asking. He simply needs to sign a one-page piece of paper and turn everything over to the trustee. Let the trustee worry about those leverage and other issues, and let Donald Trump worry about running the country. In the trust, there's a variety of properties. Some are probably heavily leveraged. Some are relatively free of leverage. The trustee can do things like package them up into different bundles and do private equity deals, LBOs, maybe even an IPO. So many of those Trump voters might want to own one gilt-edged share of stock in the entity that emerges.

The - our point is Donald Trump cannot be worrying about those things. He needs to make a clean break. And it would be simple for him to sign that paper and turn it over, as every president has for the past four decades, Democrat and Republican, with far less reason and with no constitutional mandate to avoid emoluments.

GROSS: If you're just joining us my guests are Richard Painter, who served as President George W. Bush's chief ethics lawyer. He was White House associate counsel to the president. And Norm Eisen, who has served as President Obama's ethics czar. He was special counsel and special assistant on ethics and government reform.

We're going to take a short break, then we'll be right back. This is FRESH AIR.


GROSS: This is FRESH AIR. And if you're just joining us, we're talking about the ethical questions that Donald Trump faces. I have two guests. Norm Eisen served as President Obama's special counsel and special assistant on ethics and government reform. He was called the ethics czar. And Richard Painter served as George W. Bush's chief ethics lawyer. He was White House associate counsel to the president.

You've raised some interesting questions about Donald Trump's branded buildings around the world. And some of these are security questions. Some of them are financial questions. So I'd like you to talk about some of your concerns about that.

PAINTER: It's just a practical concern to start with. Do you want to put the name of the president of the United States on a building in a country with a high risk of terrorist attacks, such as Turkey, Indonesia? We've had attacks in Mumbai in India. I mean, a lot of these locations where they are putting the Trump name up on buildings, there have already been terrorist attacks. I think that's asking for trouble, whether the name of the president is Bush, Obama or Trump. It certainly doesn't help to have a president who also makes insulting comments about other peoples' religion. That certainly gets the extremists energized.

So I think there's a serious global security concern with having the president's name up on these buildings. And we could get sucked into something overseas because something happens in one of those - to one of those buildings. And to the people in it, it could be a tragedy. So I hope that he will, at a bare minimum, take the steps he needs to in order to reduce the risk to the people who live and work in buildings that have his name on it and then also think seriously about having investments overseas that he has to worry about.

You know, where would we have been in December 1941, had President Roosevelt had had, you know, Roosevelt Tower in Frankfurt, Germany, or in Berlin and a couple of $100 million dollar loan outstanding from Deutsche Bank. That would have been a very difficult situation to say the least. And the president needs to focus on protecting the United States and American interests in a very dangerous world. And I really hope that President Trump takes the steps he needs to be free of conflict of interest in that endeavor.

GROSS: Well, if Trump-branded buildings - hotels, apartment buildings, golf courses - become targets for terrorists, who's responsible for paying for security to prevent that from happening?

EISEN: Terry...

PAINTER: Well, somebody better do it. That's the key. I mean, they better protect the building. We'll worry about who pays later. But if they don't and something happens, that's going to be - it could be catastrophic...

GROSS: But paying for it is an issue. I mean, do American tax-payers...

PAINTER: It is an issue, absolutely.

GROSS: ...Pay for it?

EISEN: Terry, it's you and me and Richard.

PAINTER: We'll pay for it. We're going to have to.

EISEN: We're going to pay for it. That's the problem with all of these Trump conflicts. By failing to make the clean break with his ownership in interests, he ends up benefiting himself at the expense of the rest of us. The tax dollars that are going to have to be used in the United States and abroad to protect his properties are tax dollars that could be better spent helping the American people deal with the economic impacts that in particular his core voters felt.

So this is going to come out of all our pockets. This is another example of what's wrong with these conflicts. He's doing deals to benefit himself, not to benefit the American people, and he's putting American people at risk. Are we going to get into conflicts around the world because of these - if, God forbid, I hope it doesn't happen - there's an attack on one of his properties, it's just terribly wrong. And there was a simple solution, and he chose not to do it. And, as you can hear, we are very, very disappointed.

GROSS: OK. So this is not the largest conflict of interest question that Donald Trump faces. But it's an interesting one. He is the executive producer of "Celebrity Apprentice" which is on NBC. Do you see any ethical questions raised by that?

EISEN: Enormous ethical questions are raised by that. Look, you have one of the networks with whom he regularly deals that's going to be making payments to him. You have sponsorship arrangements with many of the largest companies in the United States in the world who run advertisements or have placed promotions as part of the show. That creates an issue about whether Mr. Trump is going to shade his decision making to benefit the advertisers whose money is flowing through to his pocket. You have "The Apprentice" being sold around the world including, perhaps, in some countries to state-owned broadcasters so there's our old friend Mr. emoluments again.

Like all of this international web of commercial entanglements, there's a big potential to impair Mr. Trump's job that he promised to do for all of us. Whether you voted for him or not, he's going to be the president of the United States. He needs to make a choice. Does he want to be the president or does he want to be a businessperson? By running and winning, he's made that choice. Now he needs to jettison the business part of the equation.

GROSS: So - yeah.

PAINTER: I would say that's a tacky thing to have the president of the United States being a television producer. And also, we have a senator here in Minnesota, Al Frank. He used to be the host of "Saturday Night Live." He's got a great sense of humor, but he understood that when he became a senator, it was serious business. He hasn't been cracking jokes on the floor of the Senate, and he's been doing his job and letting someone else handle "Saturday Night Live." And that's what President Trump needs to do with "The Apprentice" and find somebody else. I hear Billy Bush is looking for a job...

GROSS: (Laughter).

PAINTER: ...And they can sign him up for "The Apprentice."

GROSS: My guests are Richard Painter who was President George W. Bush's chief ethics lawyer and Norm Eisen who was President Obama's chief ethics lawyer. We'll talk more after a break. This is FRESH AIR.


GROSS: If you're just joining us, my guests are Norm Eisen who was known as President Obama's ethics czar and Richard Painter who was President George W. Bush's chief ethics lawyer. He was White House associate counsel to the president. And we're talking about conflicts of interest faced by Donald Trump.

How did the two of you decide to get together? One, you know, Richard Painter - you worked with George W. Bush when he was president and Norm Eisen, you worked with President Obama. How did you decide to come together in a unison voice about possible conflict of interest violations and to speak out? What was that first conversation like between the two of you when you decided let's go for it?

EISEN: Well, Terry, it's a very small fraternity. It's a sorority - got some sorority members, too, because it's both the men and women who are experts in the law of the Whitehouse - is small. And Richard and I - when I took over as the ethics czar, Mr. know, there were less flattering names that were applied to me - the fun sponge. The president recently quoted me at - my advice to him at a press conference, Mr. President, if it's fun, you can't do it. That was half tongue-in-cheek. When I took that job over, I read memos and other materials that Richard had prepared during the Bush era. And so I admired his work from afar, and I relied on his work as - this is not a field that really knows partisanship.

There was a Republican head of the Office of Government Ethics that I was working in - working with Rick Cusick, wonderful man. So lo and behold, I knew Richard by reputation. Then when I went off to be ambassador in Prague, when I came back from Prague, I started - I was invited to attend various conferences to talk about issues. And I was on a panel with Richard and I thought, oh, I wonder what Bush ethics guru - I wonder what his views will be. And I found that I agreed more with him than anybody else on the panel, including many of my fellow Democrats. So that was the beginning of a beautiful friendship. And the working on this together has evolved naturally because we started talking trading ideas. We decided to write our first op-ed together during the heat of the campaign.

And so the friendship has grown naturally, and I was very proud when Richard agreed to come back onto the board of the government watchdog that I founded many years ago - CREW, here in Washington - Citizens for Responsibility and Ethics in Washington. If you think it's a mouthful, blame me because I named it. I'm the chair. Richard has replaced the vice chair, and we've been running it in a nonpartisan way. Our first lawsuit was against a Democratic super PAC in Florida. So that's the story of the relationship.

GROSS: Richard Painter, I know that you filed a complaint against FBI director James Comey for violating - for allegedly violating the Hatch Act which bars the use of an official position to influence an election. You filed the complaint with the Office of Special Counsel and the Office of Government Ethics. If you could briefly tell us your reason for filing it and what you think the outcome might be?

PAINTER: Well, the Hatch Act prohibits a employee of the executive branch of the government from using their official position to influence the outcome of an election or to attempt to influence the outcome of an election. I cannot think of a more egregious breach than the director of the FBI updating members of Congress, a highly political committee with respect to an FBI investigation, of a political opponent who was running for president of the United States 10 days before the election when the FBI in no other cases that I've heard of updates members of Congress with respect to its investigations on such a frequent basis.

That is not the role of the FBI to be giving pre-election briefings, opposition research to the members of Congress of this House Oversight Committee which does nothing but conduct politicized investigations. He sends the letter over there, and it's up on the web within hours. And I think it had a significant influence on the election. But I filed the complaint before I ever knew the outcome of the election within a day of when Director Comey had done that.

He showed extraordinary bad judgment for him to allow this committee of Congress to use the FBI to conduct politicized investigations and then to make such types of public announcements within a week of an election when it turned out the letter actually said absolutely nothing. It was completely unnecessary except for its political purpose. I believe that is a violation of the Hatch Act.

GROSS: What is the status of your complaint now?

PAINTER: I don't know what they're doing. I think they're investigating.

GROSS: And what might the outcome be?

PAINTER: I have no idea. But if that isn't a violation of the Hatch Act, I don't see the point of having a Hatch Act. Because if we're going to say that someone commits a violation when they wear the official name badge at a political fundraiser or something minor like that or in an official speech say, gee, it'd be nice if so-and-so were elected governor, which is clearly a violation. And the secretary of Health and Human Services was reprimanded for that a number of years ago.

If we're going to say that's a violation yet we can allow the FBI to throw an election - through a letter - didn't say anything at all. There was no new news, absolutely nothing. I think that's a - that means that the Hatch Act isn't working.

GROSS: I want to thank you both so much for talking with us.

PAINTER: Thank you.

EISEN: Thank you, Terry. It was a pleasure.

GROSS: Norm Eisen was chief ethics lawyer for President Obama. Richard Painter was chief ethics lawyer for President George W. Bush. If you'd like to catch up on FRESH AIR interviews you missed like my interview about why so many schools are still segregated or Dave Davies' interview with Jeff Bridges, check out our podcast. You'll find lots of interviews there.

FRESH AIR'S executive producer is Danny Miller. Our interviews and reviews are produced and edited by Amy Salit, Phyllis Myers, Roberta Shorrock, Ann Marie Baldonado, Sam Briger, Lauren Krenzel, John Sheehan, Heidi Saman and Mooj Zadie. Therese Madden directed today's show. I'm Terry Gross.

Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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