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Mark L. Wolf House anti-corruption and Supreme Court ethics vote helps restore U.S. credibility

The bill would require a code of conduct for justices, who are the only U.S. judges not governed by such a code.
Image: Supreme Court Justices, President Trump Delivers State Of The Union Address To Joint Session Of Congress
Justices John Roberts, Elena Kagan, Neil Gorsuch and Brett Kavanaugh attend the State of the Union address on Feb. 5, 2019.Alex Wong / Getty Images file

Before the unsuccessful military coup to remove Recep Tayyip Erdoğan as president of Turkey in 2016, I was working with the leaders of the Turkish Justice Academy. They were honest, able judges who were inspired by the ability of judges in the United States to be impartial and independent of the president. Among other things, I was teaching about the importance of judicial proceedings' and records' being open to the media and the public, as they are in the United States as a way to hold judges accountable.

Confidence in the U.S. judiciary at home and abroad would be enhanced if the Supreme Court were, by statute, required to broadcast its proceedings.

The day after the attempted coup, Erdoğan had all of my Turkish colleagues, and almost 3,000 other judges and prosecutors, arrested off of lists prepared before the coup for allegedly being part of a terrorist network. My colleagues report that many judges died in prison, some by suicide. Others were jailed for several years, and some still are, as Erdoğan has solidified his control of the judiciary.

With honest, independent judges out of the way, Erdoğan proceeded to jail thousands of professors, journalists and politicians, as well. This followed a pattern. Three years earlier prosecutors brought corruption charges against members of Erdoğan's Cabinet and released a recording purported to reveal Erdoğan telling his son to get tens of millions in cash out of his house before it was searched. Erdoğan promptly removed the prosecutors.

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In essence, judges and prosecutors in Turkey have been persecuted for striving to be like judges and prosecutors in the United States, working independently as part of the system of checks and balances needed to protect against the abuse of power by elected officials, which is important to democracy. Their plight is a reminder of the historic importance of the United States as an inspiring model and of the countless people around the world who have the courage of our convictions.

Persecuted judges in Turkey and elsewhere should be encouraged by the House of Representatives' vote Wednesday on sweeping legislation, known as H.R. 1, to diminish unethical conduct by elected officials, including the president and the vice president, and by Supreme Court justices as well. Among other things, the bill would require a code of conduct for justices, who are the only U.S. judges not governed by an ethical code.

As the Brennan Center for Justice has reported, "Over the last two decades, almost all members of the Supreme Court have been criticized for engaging in behaviors that are forbidden to other federal court judges." These include participating "in partisan convenings and fundraisers, accepting expensive gifts or travel, making partisan comments at public events or in the media, or failing to recuse themselves from cases involving apparent conflicts of interest, either personal or financial."

The legitimacy of the Supreme Court depends on public confidence that its decisions are principled, not political. Rightly or wrongly, that confidence has been eroded by decisions perceived to be partisan, as well as by the partisan rancor accompanying recent confirmation battles. A code of conduct for the justices would increase public confidence in their decisions.

In addition, as the United States regularly advocates for transparency as a check against misconduct and corruption, confidence in the U.S. judiciary at home and abroad would be enhanced if the Supreme Court were, by statute, required to broadcast its proceedings and allow the broadcasting of proceedings in the lower federal courts. Senators who have unsuccessfully introduced legislation to do so can now renew that effort when acting on H.R. 1.

However, if the United States is to remain an inspiring model of democracy, much more than improvements concerning the Supreme Court is necessary. The new legislation recognizes this, as it is intended to "strengthen ethics rules for public servants, and implement other anti-corruption measures for the purpose of fortifying our democracy." Those measures include requiring the president and the vice president to disclose their tax returns, prohibiting them from profiting from public expenditures and generally requiring that they adhere to the same ethical standards as all other government employees. H.R. 1 also includes measures to protect against foreign influence in U.S. elections.

However, the United States must do more than repair its democracy to restore its influence internationally. As Samantha Power, nominated by President Joe Biden to head the U.S. Agency for International Development, has rightly recognized, autocrats and populists are on the rise, and they are almost invariably corrupt. "Corruption is a key area of vulnerability for autocrats," Power has noted. There is a "desire of citizens around the world to see corruption and lawlessness investigated by independent bodies, a general principle they should know the United States stands behind."

Recognizing this, President Biden is making promoting democracy and combating corruption pillars of his foreign policy. Among other things, he has pledged to convene a Summit for Democracy this year to galvanize commitments from other countries for "fighting corruption, defending against authoritarianism, and advancing human rights in their own nations and abroad."

Critics, however, contend that in view of the dysfunction of American democracy that culminated in the insurrection at the Capitol and the second impeachment of President Donald Trump, the United States no longer has the standing to lecture other countries. They argue that it would be counterproductive and, indeed, hypocritical for the president to invite countries such as Turkey, Hungary, Poland and the Philippines — "all U.S. allies or partners with leaders who have taken notable steps away from democracy." Thus, the critics assert, this is the wrong time for President Biden's summit.

However, the events that have prompted this criticism actually make this the ideal time for the United States to host a summit. That summit should include democratic allies, such as Canada and the United Kingdom. If it is necessary to invite the leaders of Turkey and other increasingly undemocratic countries, there should also be a seat at the table for citizens struggling for democracy there.

The summit should be one at which the United States seeks to learn as well as to lead. The challenges to democracy in this country today are familiar to many around the world. For example, as Yale professor Timothy Snyder explained in "On Tyranny," Ukraine in 2013 responded swiftly and effectively to a Russian disinformation campaign aimed at undermining its presidential election, while the United States was slow to recognize and try to rebut a comparable Russian effort in 2016. Snyder wisely concluded that, "since so much of what has happened [in the United States] is familiar to the rest of the world or from recent history, we must observe and listen."

The United States can both listen and lead. The United States still has formidable independent media that expose corruption, as well as impartial judges who hold even presidents accountable. We often elect those who combat corruption to high office and elevate others to judgeships. (I myself was appointed a federal judge after being the chief federal prosecutor of public corruption in Massachusetts.) And, despite the insurrection at the Capitol, the world has again seen a peaceful transition of power that would be inconceivable in countries ruled by authoritarian kleptocrats.

Biden is making promoting democracy and combating corruption pillars of his foreign policy. Among other things, he has pledged to convene a Summit for Democracy.

Nevertheless, the power of the United States' example is not enough. The United States should demonstrate its commitment to those people abroad who yearn to see autocratic kleptocrats held accountable. The United States should, for example, amend the Foreign Corrupt Practices Act to authorize the prosecution of kleptocrats who demand bribes, as well as the businesses that pay them. In addition, the United States should support the growing movement to create an International Anti-Corruption Court that has been catalyzed by Integrity Initiatives International, which I chair. The court would be a fair forum for prosecuting corrupt leaders who control the administration of justice in the countries they rule — a court of last resort similar to, but distinct from, the International Criminal Court.

Some Turkish judges have been released from prison and made dangerous escapes to other countries. They were dismayed by events in the United States after the 2020 presidential election. They are now encouraged by President Biden's pledge to promote democracy and combat corruption internationally and to convene a summit to prompt other countries to join us in that effort.

The United States has long inspired these judges and many others not because it is perfect, but because it has been properly perceived as striving to give integrity to its democratic principles. The United States now has the opportunity to give renewed integrity and energy to its never-ending quest to deserve and preserve its standing as the world's best hope. President Biden's initiatives have the potential to do that.