Norm Eisen has become an unlikely media darling. Since Donald Trump’s victory on November 8 opened a debate about how the president-elect would keep his vast business interests separate from his new public obligations, Eisen has emerged as one of the two most prominent government ethicists calling for Trump to take drastic action to avoid scandal or worse. Eisen, the former top Obama White House ethics lawyer, has been cited more than 1,000 times in news stories, explaining the intricacies of the “emoluments clause” to journalists, many of whom hadn’t heard the words a month ago. With Richard Painter, who held the same job under President George W. Bush, Eisen has taken control of a leading government watchdog group that’s staffing up to hound Trump’s administration for conflicts of interest they say are unprecedented for the occupant of the Oval Office. A video, produced by the liberal advocacy group MoveOn.org, of Eisen and Painter talking about a potentially obscure constitutional violation notched more than 2.5 million views in its first week.
“It’s unreal. It’s like a full-employment plan for government ethicists, for White House ethicists,” Eisen told me Monday as he dashed between interviews with U.S. and international journalists lining up to ask him about Trump’s complicated financial arrangements. “Fortunately, there’s basically only a handful of us. There’s really only two.”
That might be an exaggeration, but Eisen and Painter happen to be the two ethicists who are actively working to shape the outcome of an election that most voters think has already been decided. For the #stillnevertrump faction, Eisen and Painter represent the last hope of persuading wobbly members of the Electoral College to vote against the president-elect when they convene on Dec. 19. Failing that, the two men are laying the groundwork for a case that Trump’s sprawling financial arrangements—real estate investments, hotels, golf courses and product licenses spread across the U.S. and at least 20 other countries—will inevitably lead him into scandal or worse once he takes office. Trump is set to hold a news conference Dec. 15 in New York to provide more detail on his future financial plans, but the two men have no expectation that Trump will take their advice and sell off his entire business enterprise and put the proceeds into a “blind trust” with no control or knowledge over where the money goes.
Their campaign is no slam dunk. Legal opinions vary on whether the allegations Eisen and Painter say could be lodged against Trump would even hold up in court, let alone make a dent in public opinion, which so far seems inclined in Trump’s favor. Republicans running Washington reason Trump is immune, for now at least, from any political fallout surrounding his conflicts since he did just win a general election promising to turn his business successes into government successes. Among Trump supporters, Eisen and Painter are just talking head opportunists with minimal sway over what’s happening in the new corridors of Washington power.
“I’m glad they’re enjoying their bit of notoriety,” said Bill Palatucci, a New Jersey lawyer and former Trump transition coordinator who met with Eisen at the Democrat’s request just before the November general election. “But I don’t think they did have a whole lot of influence on me, so I can’t imagine they’re having a whole lot of influence on everybody else.”
Eisen and Painter insist they have already had an effect on the early contours of the incoming administration. That includes the president-elect’s move to rid his transition team of lobbyists, his backtracking from news reports he wanted his adult children to get top security clearances and an initial plan to hire his son-in-law, Jared Kushner, for a plum West Wing adviser’s job. But they are steeling themselves to play a longer game as good-government cops who can distill an administration’s complicated legal and ethical obligations into layman’s terms and who know where the political booby traps are hiding. They’re gearing up to help from the outside with the inevitable wave of congressional oversight should Trump or anyone on his team make a wrong move.
“People do care,” Eisen told a New York television station during one of the half-dozen media interviews he did Monday afternoon. “It’s like a powder keg that’s going to explode as soon as we have our first scandal.”
Like many Washington wonks, Eisen and Painter have long had Trump on their radar.
Painter included a section in a securities litigation textbook he co-authored describing the details of a 1980s-era Trump case where the Atlantic City casino owner defeated his bondholders in a lawsuit in which they claimed they were stiffed in bankruptcy proceedings. Eisen recalls seething in his White House office as Trump dominated the cable airwaves talking about a conspiracy theory that the county’s first black president wasn’t even a U.S. citizen.
Both started taking Trump seriously as a political force in late 2015, though they didn’t begin collaborating until earlier this summer. They’d known each other through their White House jobs and had appeared together on panels organized by the Office of Government Ethics, talking about their mutual interest on issues like campaign finance and executive branch business conflicts.
But their bipartisan teamwork kicked into gear as Trump and Clinton bore down for the general election campaign. Painter, a NeverTrumper who had preferred Jeb Bush, Marco Rubio or John Kasich, switched sides when he ran out of Republican options, joining the Hillary Clinton bandwagon while publicly urging her to tackle ethical conflicts tied to the Clinton Foundation.
Their jointly written op-eds started in late September, when the Washington Post published a piece outlining the reasons they saw a potential Trump presidency as ethically compromised. They followed that up with an article in the New York Times about how the absence of any tax returns from the Republican made them question “Mr. Trump’s fitness for office.” In POLITICO Magazine, they explained a week before the general election how Trump’s missing tax returns left Americans in the dark about his potential Russian connections.
“We’re not passive ethicists. … We like to get out in front of the issues,” Eisen explained of their published commentary.
The duo hasn’t always agreed on how to address Trump’s conflicts or the best means for pressing to get the Republican to change his tune. They’ve differed, for example, over the exact details of what kind of a blind trust they think Trump should set up. Painter has also said Congress would be best positioned to challenge Trump should he violate the Constitution’s emoluments clause, which forbids U.S. government employees from taking payments or gifts from foreign governments or the companies they run. Eisen argues that Trump’s business competitors would have standing to sue the president over the matter, which he explains was the country’s “original” conflict of interest law.
Both ethicists have also gone their separate ways to make points. Painter wrote in the New York Times earlier this month that any building around the world with Trump’s name on it “presents a global security risk” as a “tempting target for terrorists and other enemies of the United States.”
Eisen, meantime, took the lead on setting up a meeting with Trump’s transition office in Washington just a few weeks before the election. The Democrat didn’t mention Trump’s potential business conflicts when he sat down with Palatucci. Instead, the meeting was done so he could offer suggestions for an ethical code of conduct that the Republican could follow in his transition if he won the election. When he served President Barack Obama, a classmate of his at Harvard Law School, Eisen pushed for greater transparency and was responsible for the White House posting its visitor logs online.
Palatucci in an interview said he accepted the meeting with Eisen as a “courtesy” for writing in to offer ethical advice. But he said the Democrat did little to change his thinking, and he recalled teasing Eisen over the special waiver exemptions granted to several lobbyists early in the Obama White House era, a sore spot that exposed the president to charges of charges after he’d tried to ban Washington insiders from jobs at the start of his administration.
Republicans have also given Painter grief for his ethical advocacy. The former GOP White House lawyer served in Bush’s second term, helping handle the tax implications tied to the complicated divestments of $600 million in Goldman Sachs stock held by the incoming Treasury Secretary Henry Paulson, as well as the Supreme Court nominations for John Roberts and Samuel Alito. Still, several of his former White House colleagues downplayed his credentials as an authority on the issue. Asked about some of Painter’s commentary on Trump’s conflicts, a former top Bush staffer suggested there were “others with experience that is broader and more senior than Painter’s.”
“When did some obscure professor from Minnesota suddenly have the weight of conclusory legal thinking?” said Jan Baran, a former top attorney for the Republican National Committee and George H.W. Bush’s 1988 presidential campaign.
Eisen and Painter will start the Trump administration with a useful platform that lets them move beyond the op-ed pages and the column inches and airtime that journalists give them.
As the new board leaders at Citizens for Responsibility and Ethics in Washington, a nonprofit that Eisen helped co-found in 2003, they’ll be offering regular guidance and advice policy, legal and research experts whose primary task is to hold the new Republican White House accountable.
“They’ll be the people we call on frequently, and they’ll call on us with strategic advice, of thoughts of the best ways to take action on these issues, to raise the profile of these issues,” said Noah Bookbinder, CREW’s executive director, adding that he expects the two former White House ethics lawyers to help him boost his $2 million annual budget and add to the dozen staff.
Eisen and Painter also have influence beyond CREW. They have assumed a leadership role with an informal alliance of about 30 good government groups and individuals, including Common Cause, the Center for American Progress and the Project on Government Oversight, that have been coordinating with frequent calls on ways to take issue with Trump’s conflicts. They sent Trump a letter on Friday urging him to go beyond what he’s long signaled would be his plan to hand over management of his business enterprises to his adult children. “This will not solve the real or apparent conflict of interest problems you face as president,” the group wrote. More aggressive tactics are in the works.
Scott Amey, the general counsel at POGO, said Eisen and Painter have been more than just figureheads for the outside groups that have toiled on obscure issues like government transparency and ethical conflicts.
“Figureheads don’t usually do much in my book,” he said. “They certainly have become the bipartisan voice in working through a lot of these issues with the media, based on the fact they have a wealth of knowledge and experience that other members of the group don’t have.”
It’s unclear exactly how Trump will arrange his business holdings and other assets. It’s a fluid situation, with potential tax implications and other legal fallout, and GOP sources tell POLITICO Magazine that Trump’s army of lawyers will likely be brainstorming ideas right up to their deadline.
Republican leaders on Capitol Hill say they’re willing to give the president-elect running room to get his financial house in order. “This is not what I’m concerned about in Congress,” House Speaker Paul Ryan told CNBC on Wednesday.
Eisen says even the GOP is going to have to come around on its oversight responsibilities if Trump doesn’t take adequate precautions. His reasoning: Senate Republicans hold a narrow majority, and he says it won’t take much for lawmakers to join their Democratic colleagues in information requests and calls for hearings. Already, the media has reported Trump has demonstrated business interests in global hot spots from Taiwan to Cuba that Eisen says suggest the president-elect is “already blurring between all these lines, between the business of the U.S. and his personal business.”
“And then that’s where you get into the ‘I word,’” Eisen said in his New York television interview. “But I want to be very careful. It’s very early days. I hope things are not going to go in that direction. That requires a lot of hypotheticals.”
But he is more than willing to discuss those possibilities with any journalist who asks. He says he tries to respond to most every media call he gets, even if it means he has to put other parts of his life on a back burner. A former U.S. ambassador to the Czech Republic, Eisen is trying to finish writing a book due to his publisher in the spring about his former official residence in Prague, a historic building occupied by the Nazis during World War II that later served as the home for one of his diplomatic predecessors, the actress Shirley Temple Black.
“Before everything went crazy I was producing 1,000 words a day and I was usually done with my 1,000 words by around 11 or 11:30,” Eisen said. “That’s still the case, but now it’s 11:30 at night.”
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