The Media’s Favorite ‘Ethicist’

Indeed, Painter has become the go-to Republican for many mainstream outlets when they find it useful to have a “former Bush administration official” and “ethics lawyer” to light into the current GOP president in the most outlandish of ways.

In a March CNN appearance, he said he was “worried about KGB agents running around the West Wing.” In an April hit on MSNBC, he accused the Trump administration of “treason” because Michael Flynn had a few conversations with Russia’s then-ambassador to the United States last winter. He was mildly more circumspect in July: A June 2016 meeting between Donald Trump Jr. and a Russian lawyer merely “bordered on treason,” he said. In an October CNN appearance, Painter maintained that Trump has “no empathy” for fallen soldiers. He has “no understanding of the human emotions of what people go through because he never did it himself, he stayed home during Vietnam with his sore foot or whatever it was,” he said. Last week, again on MSNBC, he declared, “The commander in chief is Donald Trump. There is a risk of him using that power to destroy our democracy, whether you call it a coup or anything else.”

Now, extreme partisan statements like these are a dime a dozen on cable news shoutfests. But Painter’s former job title and academic imprimatur (he’s a law professor at the University of Minnesota) give them extra heft—they’re not the usual turgid commentary coming from a generic “Democratic/Republican strategist.” And indeed, whenever he makes an incendiary charge on television, Painter’s remarks get thrown into the gaping maw of the Internet and end up widely dispersed. (Sample headline from the Hill: “Ex-Bush ethics lawyer on Trump Jr: ‘This borders on treason.’ ” And how about this from Newsweek: “Trump Could Use Military to Launch His Own Coup, Warns Former White House Ethics Lawyer”?) A Google Trends graph demonstrates the 56-year-old’s newfound celebrity: After toiling in relative Internet obscurity for years, Painter has enjoyed a massive boom in online mentions and searches since Trump’s election.

But according to people familiar with how White Houses operate, Painter’s high profile is based on a popular misconception about what, exactly, the White House ethics counsel does. The person in that position is not a moral arbiter or even someone with a large remit over the presidential administration’s behavior. Rather, the job mostly consists of helping cabinet appointees and other administration officials “fill out disclosure forms and sort out conflicts of interest,” says one former White House lawyer. The role is “important but quite limited in responsibilities,” he says. An official might ask the counsel “Can I go to dinner with this lobbyist?” and other mundane questions—hardly the stuff of “treason.”

In a phone interview, Painter confirms the rote nature of his role as White House ethics counsel, which he held from 2005 to 2007. Day to day, Painter says, he “helped people deal with financial conflicts of interest.” He might, for example, “work with people selling real estate.” By all accounts, he was stellar at this job, probably owing to his work in corporate ethics law prior to his appointment. That background, in addition to the fact that he was a registered Republican, led to his appointment, Painter says. But the recent “rise in my profile doesn’t have to do with my legal expertise,” he allows.

This has led to persistent complaints that in issuing such bold and brash statements, Painter is straying outside of his legal lane and, in so doing, hurting the academic legal profession. One prominent liberal law professor, New York University’s Stephen Gillers, who has worked with and respects Painter, worries that he has “hurt his credibility” by simply “asserting that everything the White House does is wrong. He appears too partisan.” Gillers continues, “We law professors carry a certain level of credibility by virtue of our titles,” but by “going outside his expertise on social media, and especially television,” Painter puts that at risk.

Crazed charges of “treason” are bad enough; they’re reckless coming from a law professor and “former White House ethics lawyer.” Painter’s bio obscures the reality that his pronouncements are often preposterous. Last year, he wrote a New York Times piece arguing that George W. Bush would have nominated liberal Merrick Garland to the Supreme Court. It was an absurd claim about a president who had appointed strict conservatives like Samuel Alito. But because it came from a legal academic who was “chief White House ethics lawyer from 2005 to 2007”—both titles were in the paper’s bio—it was given some modicum of credibility. Painter actually began his piece, “As the chief ethics lawyer in the White House Counsel Office, I helped President George W. Bush with the nomination and confirmation of” Supreme Court justices, though the role he played in them was virtually nil. More recently, Painter called for John Dowd, President Trump’s personal attorney, to be “disbarred” after it was revealed that Dowd wrote a tweet under the president’s name. It was an insane demand: Lawyers frequently draft statements under their clients’ names. But a prominent former Bush official had made it!

These days, Painter is vice chairman of Citizens for Responsibility and Ethics in Washington, a liberal group once affiliated with attack dog David Brock. Yet he retains his Republican party affiliation and thus his patina of objectivity. And, to be fair, in our chat, Painter points out the Democratic party’s hypocrisy over ethics issues as well. In ousting Al Franken, they’ve “taken out one their best senators over sex,” he tells me. But a “New Jersey senator who was indicted over bribery” was allowed to stay. (Robert Menendez’s case ended in a mistrial.)

Painter is walking a well-trod path. Years after he had morphed into a standard-issue right-winger, Georgia senator Zell Miller remained a Democrat. That ensured just about everything he said was newsworthy: “Democratic senator endorses George W. Bush” is a much more interesting headline than “Republican supports Republican.” Bruce Bartlett, a fierce and often profane critic of the GOP, is a “former Reagan official,” and he’s been dining out on that credential for decades. So there’s nothing new about Painter: It’s a lot less interesting when a former minor White House functionary turned liberal activist makes an incendiary charge about “treason” than when a “former Bush administration ethics chief” does it—even if the charges themselves are pretty crazy. As somebody else once said, when you’re a star, they let you do it.

Ethan Epstein is associate editor of THE WEEKLY STANDARD.