Like millions of other Americans, I read that anonymous opinion column in the New York Times last week, apparently written by some senior official in the Trump Administration quietly aghast at the nuttiness of President Trump — and I thought, “Wow, that guy is a cowardly jackass.”
That’s an easy reaction to have, after all. Here is someone working for the American people, charged with trying to keep us safe, who emerged from bureaucratic obscurity to validate all the suspicions that most Americans already have: that Trump is mean, stupid, perhaps mentally ill, perhaps suffering from dementia. Then he vanished again.
The author offers no solutions, and no hint that he’ll ever try to find a solution. Rather, he just tries to work around Trump and quell the president’s worst impulses. All while pushing a political agenda much of America doesn’t like either.
How would a compliance officer handle an anonymous report like that?
After all, that’s the closest approximation to what this missive is. An employee is raising alarms about executive misconduct, and doing so anonymously. Compliance officers field reports like that all the time. So what layers could we peel back and examine here, to appreciate how our own whistleblower reporting systems might work better?
First, this mess is a powerful reminder of how an effective whistleblower reporting system should be structured, mostly by showing us what an awful counter-example the White House is.
For starters, the White House has no clear mechanism that allows employees to submit anonymous reports of misconduct. Anywhere else in the federal government, an employee could always submit something to the inspector general of that agency — but the White House itself has no inspector general.
Instead, White House employees can only refer concerns to the Office of White House Counsel. In the corporate world, that’s analogous to submitting anonymous reports to the general counsel. Sometimes that’s fine. Other times it raises difficult questions about how much the GC is acting in the best interests of the company versus those of the CEO. And overlook the practical obstacle here that the White House senior ethics counsel just left.
Hence the corporate governance community talks so much about the importance of a strong, independent compliance or audit function. Without that strong structure, success depends on strong people — and with all due respect to this author, there aren’t many of those in the Trump White House.
Defining ‘Misconduct’ Wisely
In theory, a White House employee could report concerns about criminal activity to the Justice Department or the FBI, just like any corporate employee suspecting a crime could call the cops. But the author doesn’t allege any criminal activity. He only says President Trump is mentally and morally unfit for the presidency.
Stupidity and amorality in the C-suite are a dire problem for any organization, but they aren’t crimes. Which brings us to our second point: the importance of clarity around what “misconduct” actually encompasses, so employees know whether or how to report it.
To be clear, I am not saying this author should have kept his mouth shut, or that employees who suspect the CEO is slipping into dementia or mental illness should stay quiet. They should speak up. But the range of non-criminal misconduct can be enormous, and some of it isn’t even misconduct in the strict sense of the word.
As much as people might detest President Trump, for example, it wouldn’t be his fault if this train wreck of an Administration is all because he’s slipping into dementia or mental illness; or because he’s a moronic dupe unwittingly maneuvered into office by Russians. That’s not misconduct. But it absolutely needs to be reported.
All organizations, and the employees working within them, need to be clear on points like that: governance issues that are a grave concern, but aren’t crimes. Who fields those concerns? How much investigation or documentation is necessary, before supervisors can act? What actions are they allowed to take?
The closest analogy here might be a CEO who is a workplace bully. Not a sexual harasser or someone violent, who might incur liability for the company — just someone who’s a jerk or an ill-tempered moron, who makes poor decisions. Even if the general counsel fielded that complaint, at some point he or she would need to pass it along to the board for resolution. Is your own organization clear on where that point is?
The closest analogy here might be a CEO who is a workplace bully — a jerk or ill-tempered moron who makes poor decisions. At some point the general counsel would need to pass along those complaints to the board for resolution. Is your own organization clear on where that point is?
Failures of Governance, Not Compliance
The fascinating question here is how someone in this Administration would report fears like those. It raises another important point for compliance officers; What is the duty to report among senior executives?
This is where comparisons between the U.S. government and Corporate America reach their limits. In the corporate world, you can impose a duty to report to the board. If the situation is bad enough — declining sales, key employees leaving, and so forth — the board can replace the CEO.
The board of the United States government is Congress. So far, the board has failed to execute its oversight responsibilities. Time and again, we’ve seen Republican leaders simply not take any steps to investigate or sanction President Trump.
What would an executive in the corporate world do then? Quit, usually — but you can’t “quit” your country. So this person took his concerns directly to the shareholders. They’re voting on a new board of directors on Nov. 6, after all. A new slate of directors in Congress might start to hold Trump accountable, and shareholders get a shot to elect a new CEO come 2020, too.
Still, we should all pause to remember the misconduct this author actually disclosed. He didn’t tell us anything about President Trump we didn’t already know. His column wasn’t an anonymous report alerting us to a rogue CEO.
His column was a confession. That person admitted that he and others swipe documents from the president’s desk and disregard his orders. That’s misconduct. They swore an oath to uphold the Constitution, which requires obedience to the elected president — even when that president is a moron, possibly put into office by a foreign power, acting irresponsibly because his duly elected overseers in Congress are negligent in their duties.
Even then, these senior staffers aren’t supposed to substitute their judgments for the president’s. This author says they are. Nobody elected them to do that.
The proper thing, the ethical thing, would be for this person to resign from the Administration and then take his concerns to the board of directors and the shareholders of the organization known as the United States.
He didn’t. That’s a cowardly jackass in my book.