by Kevin Kelton
On our weekly political podcast, “A More Perfect Union,” I got into a spirited exchange with my co-hosts about whether Bill Clinton’s private tarmac meeting with Attorney General Loretta Lynch created a potential conflict of interest. I argued that it didn’t. They thought I was crazy.
They were wrong; I am right.
First off, let’s look at the definition of a conflict of interest. A professional conflict of interest emerges in “a situation that has the potential to undermine the impartiality of a person because of the possibility of a clash between the person’s self-interest and professional interest or public interest.”
To affect someone’s self-interest, you need to offer them something tangible, such as a gift, a bribe, a promise of valuable favors, or something else of a fiduciary nature that might sway a normal person’s judgment. Even in business or governmental settings, receiving a gift doesn’t necessarily create a conflict of interest, thought it can create the appearance of one. That is why business people should not accept free football tickets or golf outings from anyone with whom they may pass judgment on a business deal or vital piece of legislation.
But if your boss invites you to join him in the company’s box seats for a game, that is not a conflict of interest, because it would not affect your ability to discharge your professional interests. In other words, there is no “clash” between your self-interest (getting free tickets to a Dodgers game) and working for the person who gave them to you.
Back to the Clinton-Lynch situation. A conflict of interest is not, as some people appear to think, any face-to-face meeting that anyone may find suspicious. If it was, senators and congressmen could never talk to lobbyists. Indeed, the entire lobbying industry couldn’t even exist. Because by it’s very definition, a lobbyist is trying to influence people in power to make decisions that affect the lobbyist’s financial interests. So if you’ve seen some GOP congressman or senator on TV decrying what Clinton and Lynch did, you should laugh in their faces. They do worse at lunch almost every day of the year.
In fact, just last week the Supreme Court further narrowed the definition of a public official’s conflict of interest in the case of former Virginia Gov. Bob McDonnell, when he justices voted to limit the scope of a VA law that bars public officials from accepting gifts in exchange for official actions, saying it does not cover routine courtesies like hosting events for setting up meetings for constituents. As Chief Justice John Roberts wrote in the majority’s decision, “Setting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of official act” and does not create a conflict of interest.
So if McDonnell’s wife could accept expensive gifts and loans from a friend while her governor-husband was setting up potentially lucrative business meetings for that friend, it seems that Loretta Lynch is in the clear for simply exchanging pleasantries with an ex-President whose wife might someday come to her attention as part of an official Justice Department inquiry.
Think about it. If simply meeting with someone over whom you may eventually have to pass professional judgment created a conflict of interest or even the appearance of one, professors would never be able to meet with students who the professor will eventually grade, business executives could never talk to someone whom they might go on to hire, baseball umpires and basketball referees could never talk to an active player in their sport, and movie critics could never dine with actors, directors, producers, or even other critics. Mary Jo White, the Chairperson of the S.E.C. could never meet and chat with Warren Buffet, Donald Trump, Lloyd Blankfein, Bill Gates, Jamie Dimon, Tim Cook, or pretty much anyone who in any way manages a public company.
And Supreme Court justices would have to live in a lead-lined bubble, since they pass judgments affecting pretty much every living human being.
Indeed, the necessity for a judge (or justice officer) to exist within a social society is specifically addressed in the Code of Conduct for United States Judges:
“Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives.
Let’s look at the specifics of the Clinton matter.
- Hillary Clinton is part of an investigation being conducted by the FBI. She is not, as some people like to wrongly state, the “target” of an FBI investigation.
- Loretta Lynch is the person who may be in a position to decide if criminal charges are filed against Mrs. Clinton.
- Hillary’s husband, former President Bill Clinton entered Lynch’s plane and made small talk with her.
That’s it. To my knowledge, no one has suggested that President Clinton might’ve tried to bribe or influence the Attorney General. Now, you might say his visit was meant to charm Lynch into being lenient on Hillary. But that speaks awfully poorly of the nation’s chief law enforcement officer to think she could be glad-handed or charmed into ethical misconduct.
And it also gives Bill Clinton’s legendary personal charm way too much credit.
If you take every situation down it’s slipperiest slope, one could even make the argument that President Obama’s endorsement of Hillary is a much worse conflict of interest. After all, the Attorney General reports to POTUS. If he is pulling for Hillary to be the next president, and Lynch knows that, how could she possibly be impartial in the case? By that logic, she’d have to avoid any conversation or contact with Obama until the Clinton email matter is resolved. Or even resign. Of course, that logical line is ridiculous. And so is the argument that chatting with Bill Clinton on a tarmac would taint her ability to do her job.
So I don’t care that Lynch has since said she wouldn’t do it again. I don’t care if cable news legal analysts are screaming like their hair is on fire. And I certainly don’t care what Donald Trump or Bill Maher have to say about the matter. Like they’re such paradigms of virtue.
Unless Bill slipped Loretta a Benjamin and told her to “think nice thoughts about Hillary,” their tarmac meet ’n greet does not rise to a conflict of interest or the appearance of one, regardless of the so-called “optics.” Attorney Gen. Loretta Lynch is allowed to be friendly with a former president of the United States, under any circumstances.
And the gregarious husband of a presidential candidate who is allowed to say hello to anyone he gosh-darn pleases.