The New York Times reported on Friday (1/26/18) that last June President Trump wanted to fire special counsel Robert Mueller but was thwarted when his attorney Don McGahn threatened to resign rather than carry out such an order. Although the newspaper’s reporting on the so-called Russia investigation has generally been proved accurate, I do not know whether the contents of this story will ultimately be confirmed. Nonetheless, the story presents an opportunity to consider the ethical concept of conflicts of interest because that was the basis President Trump hoped to use to support the firing.
According to our Ethics Defined video, “[a] conflict of interest arises when what is in a person’s best interest is not in the best interest of another person or organization to which that individual owes loyalty.” For example, in my role as employee of a company, I might take a bribe from a seller to buy inferior goods for my firm. Or I might hire my daughter for a position with the firm rather than a more qualified candidate. In our Conflicts Unwrapped video on conflicts of interest, Professor Lamar Pierce notes that the key implication of the concept “is that managers and policy-makers must constantly evaluate whether professionals and employees might face incentives to act counter to their responsibility.”
Mueller’s responsibility is to find the truth about who did what and why within the scope of his investigation. Trump claimed that Mueller had three conflicts of interest that disqualified him from heading the investigation. Do these claims withstand scrutiny?
One of the claims was that Mueller had been interviewed to return as the F.B.I. director the day before he was appointed special counsel in May of 2016. I cannot see how that fact raises a conflict of interest at all, let alone one that would disqualify Mueller from heading the investigation. The fact of the interview seems to indicate only that Mueller was considered by the Trump Administration to be sufficiently qualified and objective to be a candidate for a very important law-enforcement post within the Trump administration. That is hardly disqualifying.
A second claim was that Mueller had recently worked for a law firm that had previously represented the president’s son-in-law, Jared Kushner. Absent an allegation that Trump and Kushner’s interests are adverse or that Mueller had actively represented Kushner and in that capacity learned relevant and potentially harmful information about Kushner, it is very difficult to see any sort of conflict of interest in this claim either.
Finally, the Times reported that Trump “claimed that a dispute years ago over fees at Trump National Golf Club in Sterling, Va., had prompted Mr. Mueller, the F.B.I. director at the time, to resign his membership.” Some sort of revenge motive could, indeed, create a conflict of interest making it difficult for an attorney or prosecutor to be impartial in an investigation. However, this matter seems so distant in time, so insignificant in substance, and so unconnected to Trump personally that it seems implausible that it would affect Mueller’s decision making in any meaningful way.
Since last June, a fourth claimed conflict-of-interest has arisen based on the fact that apparently some members of Mueller’s team have donated to Democratic political candidates. This is a more substantive claim, especially in light of how polarized our politics are today. However, the claim is undercut by the fact that Trump himself has donated to Democrats. Also, if political party membership is assumed to guide prosecutors’ actions, then since Mueller is a Republican we should presume that he is biased for, not against, Trump and would assemble a team of attorneys who would protect the President, not harm him.
I do not wish to suggest that partisanship in prosecutors’ offices across the country is not a worry when it comes to conflicts of interest. It is. However, we must be practical. Because almost every citizen we have who pays enough attention to politics to have a party affiliation is a Republican or a Democrat, we must live with the fact that sometimes Democratic prosecutors will be investigating Republican suspects and vice versa. It is neither feasible nor desirable to establish a system where only Republicans are permitted to investigate Republicans and only Democrats can investigate Democrats.
That said, the behavioral ethics research that underlies so many of our videos makes it clear that people are indeed influenced, often unconsciously, by their own prejudices. Mueller, his team, and prosecutors across the country must realize the potential for unfairness that arises if they do not scrupulously follow fair procedures and monitor their own actions. They must be aware of potential prejudices that arise from party affiliation and other sources and diligently guard against them. But if mere party affiliation were grounds for disqualification in this case, law enforcement activities across the nation would likely grind to a halt as at least half of suspects across the country are likely being investigated and prosecuted by people who belong to a different political party.
David De Cremer (ed.), PSYCHOLOGICAL PERSPECTIVES ON ETHICAL BEHAVIOR AND DECISION MAKING (2009).
Mark Godsbey, BLIND INJUSTICE: A FORMER PROSECUTOR EXPOSES THE PSYCHOLOGY AND POLITICS OF WRONGFUL CONVICTIONS 2017).
David M. Messick & Ann E. Tenbrunsel (eds)., CODES OF CONDUCT: BEHAVIORAL RESEARCH INTO BUSINESS ETHICS (1996).
Don A. Moore, et al. (eds.), CONFLICTS OF INTEREST (2005).
Michael S. Schmidt & Maggie Haberman, “Trump Ordered Mueller Firing Last June,” New York Times, Jan. 26, 2018.
Pat H. Werhane, et al. (eds.) OBSTACLES TO ETHICAL DECISION-MAKING (2013).