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American Opinion: New rules and old conflicts for legal defense funds

When members of the White House staff find themselves under criminal investigation, they should be allowed to raise money for their legal defense. They should not be allowed, as a newly revised policy from the Office of Government Ethics permits, to accept contributions from anonymous donors.

The cost of public service is sometimes unreasonable, occasionally outrageous, and extracted from members of both parties. In the 1990s, aides to President Bill Clinton racked up six-figure legal bills as independent counsel Kenneth Starr's investigation spread ever outward. Margaret Tutwiler, a senior aide to President George H.W. Bush, endured her own bank-breaking ordeal, fending off allegations that she had conspired to gain access to Clinton's passport file. Her eventual exoneration was not accompanied by a rebate for legal fees.

Tutwiler and others did receive partial reimbursement of fees from the same three-judge panel that had supervised the independent counsel. But these reimbursements typically weren't enough to protect them from steep financial loss.

The independent counsel statute, and the reimbursements it made possible, is no more—in part because of the havoc it wreaked on innocent lives. But costly investigations are still a staple of Washington life, and Donald Trump's administration has attracted its share. Along with Trump family members, Vice President Mike Pence, Communications Director Hope Hicks and White House Counsel Don McGahn are all reported to have obtained legal counsel.

Any White House staffer who is not personally wealthy, and is caught in the gears of special counsel Robert Mueller's investigation into Trump connections to Russia, will face devastating legal bills.

That's more than unfortunate; it's unfair. There's a legitimate debate to be had about whether people with material stakes in federal policy should be prohibited from contributing to legal defense funds: On the one hand, it's depriving the accused of sources of funding for their legal defense. On the other, such funding creates a conflict of interest for even the most conscientious public servant.

What should be beyond argument is whether donors should be allowed to remain anonymous, or whether targets of investigations should be allowed to accept money from foreign sources. In both cases, they should not.

In theory, anonymity prevents staff from being influenced by favor seekers. In reality, the least ethical favor seekers can easily make their donations known to people in power. Only the public will be in the dark. And allowing foreign entities to pay for the legal defense of a public official would give them an unhealthy influence over U.S. politics and policy.

Taxpayers, lobbyists, corporations, wealthy friends—none is a desirable source of funds to cover the private legal expenses of a public employee. If such employees have no choice but to accept their money, however, they should be required to identify their donors and contributions. Organizations committed to ethical and transparent government should be prepared to press for the information, in court if necessary. That's the best way to protect both the public interest and the rights of people who work in the White House.