Much of the country is reeling over the audacity of President TrumpDonald TrumpDeputy AG: DOJ investigating fake Trump electors Former Boston Red Sox star David Ortiz elected to Baseball Hall of Fame Overnight Health Care — Senators unveil pandemic prep overhaul MORE’s personal lawyer, Michael Cohen. By allegedly promising clients access to the newly-elected President, Cohen may not have violated the law, but he definitely tipped-toed up to the line of legality and profited handsomely off it.
We shouldn’t be surprised at all by this — in fact, the way we regulate the presidential transition period and lobbying invites this type of behavior.
Recent lobbying rules and standard personnel procedures have codified the ways that friends and associates of a new president can “cash in.” Those who want to enter government as presidential appointees must be vetted and approved by the Senate; while those who want to influence from the outside are required to register and disclose lobbying activities.
These regulations leave a lot of grey area about non-lobbying influence or “shadow lobbying”, especially during the chaotic transition between presidents (reports suggest that Cohen met with Novartis and AT&T during the transition in January of 2017). Between Election Day and Inauguration Day, the team helping the president-elect transition to power remain private citizens. As a result, regulations on conflicts-of-interest and the role played by industry lobbyists are set voluntarily.
Standard transparency measures are largely invalid, meaning the transition team can meet with anyone it would like, without any burden to reveal this to the public. And lobbyists peddling a pet project or policy recommendation do not have to disclose this, even though they may have just donated millions during the campaign to help elect the president.
Recognizing these flaws in the system, recent presidents have established guidelines to promote good behavior and public confidence in the process. Transition officials have been required to sign ethical pledges, banned from advising on issues they have lobbied on in the past, and the Obama transition team even posted interest group comments on a public website.
Cohen and the Trump transition team largely disregarded these recent practices and bad behavior predictably ensued. CNN has reported that Cohen’s pitch to clients was: “I don't know who's been representing you, but you should fire them all. I'm the guy you should hire. I'm closest to the President. I'm his personal lawyer."
By promising a high level of access and influence to newly-elected President Trump, Cohen sounds remarkably similar to Clark Clifford 50 years ago. Like Cohen, Clifford was newly-elected President John F. Kennedy’s personal lawyer, though Clifford ran the 1960 presidential transition, as well. Also similar to Cohen, Clifford did not join the White House staff after the inauguration. Instead, as Kennedy famously joked, Clifford merely asked that the name of his law firm be printed on the dollar bill. His high-powered relationships to presidents launched a multi-decade career as one of Washington’s most influential lobbyists, before being indicted for receiving bribes from foreign investors late in life.
Unlike Clifford, Cohen had little experience in Washington before his client won the presidency. Consequently, it is unclear whether he knew about or abided by any lobbying rules, especially those on representing foreign entities.
The chaos of the Trump transition period hardly subsided after the inauguration. The White House seems to have granted hundreds of ethics waivers to lobbyists who are now working in the administration.
Further, Cohen is likely not alone in trading on a close relationship to Trump. It reasons that others in the inner-circle were making similar offers, at once taking advantage of the loose and often unenforced rules on influence as well as abiding by none of the norms of the presidency established over the last several decades.
Lobbying and campaign finance rules rarely change without a major scandal. As with Watergate, the numerous investigations of the Trump administration are heading toward a new round of debates on tightening regulations. The transition period remains a period fraught with loop-holes and ready to top the agenda for greater congressional action, including clearer rules on the role of lobbyists, transparency, and public disclosure.
Heath Brown is associate professor of public policy at City University of New York, John Jay College of Criminal Justice and the CUNY Graduate Center. Brown is the author of “Lobbying the New President: Interests in Transition.”