The scandal isn’t what’s illegal, Michael Kinsley once wrote; the scandal is what’s legal. The point of the aphorism is that, in American politics, the worst abuses by powerful people usually involve clever ways to exploit the law without committing crimes.
That notion has grown a bit outdated for an era in which a mobbed-up real-estate crook turned professional swindler can be elected president of the United States. But it remains the case that a large amount of scandalous behavior is perfectly legal. This problem describes the ongoing ethics scandals of both the Supreme Court and Hunter Biden.
The dilemma with Hunter Biden is the mismatch between his sleaze, which is vast, and his criminality, which appears minuscule. His proven crimes amount to having failed to pay taxes and having lied about being sober on a gun-purchasing form — both of which are basically knock-on effects of his drug addiction. In a now-delayed deal with a federal judge in July, Biden agreed to plead guilty to the former while avoiding prosecution on the latter, and he may still be charged for other crimes. At the same time, he collected millions of dollars flagrantly trading on his father’s name. The only possible value Hunter Biden’s “consulting” could have had to the various businesspeople he peddled it to in Ukraine and China was the possibility he could provide a connection to his father.
Republicans have claimed, without anything close to solid evidence, that Joe Biden was profiting from his son’s business and covering up his corruption — with Speaker Kevin McCarthy going so far as to suggest that the House might impeach the president over the affair. But even short of the unlikely possibility that Joe Biden made a cent from Burisma, the Ukrainian gas company whose board Hunter sat on, it is true that he permitted his son to make his living in the influence-peddling trade. The cleanest and most likely version of these facts is that Hunter Biden essentially swindled his foreign clients by floating that he had pull with his dad without ever delivering on the corrupt promise.
That would be, alas, legal. It is also apparently legal for Hunter Biden to sell paintings to Democratic Party donors for enormous sums, as Mattathias Schwartz of Insider reports. Maybe, just maybe, Hunter Biden possesses rare artistic gifts, or perhaps his style appeals specifically to an aesthetic sensibility that happens to be concentrated among wealthy Democrats. More likely, those donors are looking for a way to funnel money to Hunter and paying generously for his paintings lets them do it.
The Supreme Court’s ethics scandal has the same basic contours. The high court is exempt from ethics requirements faced by other American judges, a paradoxical loophole that allows some of the most powerful political figures in the country — justices with lifetime tenure and the ability to overrule actions by the other two branches of government — to operate with less transparency or constraint.
The worst offense (at least among those that reporters have managed to suss out) involves Clarence Thomas, who allowed conservative billionaire Harlan Crow to underwrite his lifestyle by covering the education of his adopted son and housing for his mother and paying for luxury vacations for Thomas and his wife, Ginni. The legal defense of Thomas’s behavior hinges on the lack of any enforceable reporting requirements for his office. The ethical defense hinges on the notion that Thomas is too principled to allow financial gifts to sway his legal opinions.
Thomas’s defenders have insisted his actions were legal, which is true, and that he didn’t do anything unethical, which is preposterous. Any powerful person has compromised his independence when his standard of living depends on staying in the good graces of a wealthy patron.
And while Thomas and Crow may see eye to eye on the issues anyway, it seems at least suspicious that the Court’s conservative bloc has developed a series of lucrative personal friendships with conservative billionaires. As the New York Times columnist Jamelle Bouie has pointed out, the conservative legal movement has been preoccupied since the 1980s with stopping Republican Supreme Court appointees from wandering toward the ideological center once installed. So the fact that the justices are now ensconced within a supportive and luxurious social circle — rather than the regular, non-gift-bestowing elites they might otherwise socialize with — is hardly immaterial to their rulings.
The Wall Street Journal recently reported that Chief Justice John Roberts has sought to formalize some ethical rules; he even circulated a code of conduct similar to the one used by lower-court justices, but strangely, “the project hasn’t progressed further.”
One reason it hasn’t progressed is probably that, among conservatives, the Court’s ethics scandal isn’t a scandal at all. Or, rather, the scandal is that nosy reporters are digging up stories about justices helping themselves to free gifts. In Congress, Democrats have sought to impose ethics requirements on the Supreme Court, but Republicans have opposed them uniformly. “The bill invites ethics complaints alleging that a Justice violates the new rules or ‘has otherwise engaged in conduct that undermines the integrity of the Supreme Court,’” complains The Wall Street Journal editorial page. “That open-ended standard is an invitation to groups on the left and right to file endless complaints against the Justices to create the appearance of wrongdoing or conflicts of interest.”
There are channels to handle ethics complaints against other judges, not to mention members of the executive and legislative branches, and these don’t prevent any of these bodies from functioning. Somehow the Supreme Court alone is so fragile that establishing any mechanism to vet ethics complaints would paralyze it.
So that is where we are stuck. Democrats are complaining about the Supreme Court’s luxe lifestyle, and Republicans are complaining about Hunter Biden’s sleaze. Both parties dismiss the complaints from the opposing camp as a witch hunt designed to smear some different target (Joe Biden in the case of the latter and the general legitimacy of the conservative-controlled Supreme Court in the former). Neither feels compelled to correct misbehavior on their own side because misbehavior has been defined as a crime.
The solution would seem to be to create firm rules to enforce the ethical expectations attached to these positions. If Democrats in Congress can’t get Republican support for a code of conduct for the Supreme Court, they could attach it to a measure creating a code of conduct for family members of current and recent presidents and vice-presidents. It shouldn’t be impossible to let the child of a president get a regular job while preventing them from selling their name. (The sleaziest family deals all seem to involve overseas work.)
Of course, Republicans are probably going to reject any ethics rules for presidential families, too. The biggest targets would be Donald Trump and Jared Kushner, who have made a fortune on deals with Persian Gulf states that had cozy ties with the Trump administration. But proposing standards would at least allow Democrats to have an answer for Hunter Biden’s sleaze parade rather than having to excuse it.
“It’s unsavory, but it’s not a crime” is a good argument for a defense lawyer. It’s not a great argument for people who are in a position to write new laws and whose survival depends on refuting the cynicism of a pseudo-populist whose appeal is rooted in the corrosive assumption that every politician is on the take.