Chapter 5 Enforcement

Ethics enforcement in the federal government operates through overlapping frameworks of criminal law, administrative regulation, and institutional norms. Each component is intended to promote accountability, but the effectiveness of the whole depends on coordination in an inherently political environment. Statutes and regulations establish the framework; prosecutors, inspectors general, and agency ethics officers give it force. A statutory prohibition has little deterrent value if enforcement is irregular, politically contingent, or lacks cooperation among “players.”

Attorney General Robert Jackson’s 1940 address to a gathering of United States Attorneys remains the clearest statement of the stakes in criminal enforcement in politically charged cases, and his strong case for restraint resonates today. The prosecutor’s discretion to select cases is essential to justice but potentially dangerous. For example, the prosecution of Vice President Spiro Agnew in the early 1970s demonstrated both the reach and the fragility of the system: the Justice Department pursued a sitting vice president for tax evasion and bribery, securing his resignation and plea agreement, yet the case depended entirely on prosecutorial discretion (and secrecy) and interagency coordination rather than statutory compulsion. The same structural test reemerges today in prosecutions involving both members of the current administration and those brought against prior Executive Branch employees, revealing that the legitimacy of federal ethics enforcement depends not only on evidence or law, but on a polarized public’s willingness to care about the importance of government ethics enforcement.

That problem persists in a wide range of case studies, as seen in Hunter Biden, Siegelman, and similar cases, where the system’s credibility rests in part on cooperation among investigative and prosecutorial bodies. To a large extent, the system depends in part on adherence to norms. This reliance has proven to be a questionable foundation. Likewise, the McLellan and Cohen matters show how professional ethics can evolve into public enforcement, as internal advice and cooperation now form the evidentiary basis for government prosecution.

Recent Supreme Court decisions are widely viewed as having narrowed the reach of federal anticorruption law. McDonnell v. United States limited what qualifies as an “official act,” and FEC v. Ted Cruz for Senate struck down a rule intended to prevent post-election quid pro quo arrangements. Other recent cases expose the same institutional limits, confirming that the underlying structural problem has not changed. Whether a credible government ethics regime can exist without restoring a foundation of public support and a framework of coordinated enforcement remains unresolved—an inquiry that ties back to Robert Jackson’s warning about prosecutorial power.