To put the point in mildest terms, Ellen Weintraub and Don McGahn do not get along. When they served together on the Federal Election Commission, their mutual hostility was well enough known, and their time apart since Mr. McGahn left the agency does not appear to have eased the tension – – certainly not on Commissioner Weintraub's side, and probably not on Mr. McGahn's. Now Ms. Weintraub has published an op-ed in The Washington Post, arguing on the basis of her experience with Don McGahn that he is not fit to be the next White House Counsel.

How McGahn will perform in his current job might be judged as Commissioner Weintraub suggests, by putting the weight she does on a particular reading of his record at the FEC. Or, on a different view, a distinction could be drawn between Mr. McGahn's past and future roles, and a different standard of evaluation could be adopted for the work now ahead of him. In choosing the first of these alternatives, the Commissioner may be incorrectly framing the question of McGahn's suitability as White House Counsel and directing attention away from what is more relevant in assessing the role and performance of that Counsel in the incoming Administration.

The questions about the President-Elect’s business interests have so far revolved around those benefits he might enjoy from foreign holdings and transactions, and still more specifically those provided in part by foreign governments. It is argued that a constitutional issue arises under the Emoluments Clause barring any “person holding any office of profit or trust”, without the consent of the Congress, from accepting any gift from a foreign government. Some scholars contend that the Clause likely applies to presidents; others disagree.

But the attention paid to foreign source business income has left mostly to one side the larger question of the leeway presidents have to operate outside the conflict of interest rules all senior executive branch officials (other than the Vice President) have to follow. For example, presidents and vice presidents are not subject to gift restrictions. 5 C.F.R. §2635.204(j). They may accept any and all gifts from any and all sources (except, on the Emoluments theory, from foreign governments). The exception rests on the belief that considerations of etiquette and protocol require allowing a president to accept personal gifts.

Most presidents, most of the time, accept such gifts but only in trust for the United States. But the rule gives them the choice. And that choice in turn is governed by little other than a concern for appearances or, if the gift is proffered by a favor-seeker, by the wish to avoid liability for bribery. The only requirement is public disclosure: presidents must report once a year the gifts they are free to receive.

In other words, this is a rule buttressed by a norm: the rule allows for the acceptance of the gift, but the norm operates to limit the circumstances in which the president would normally accept a gift for himself.   The norm does all the work. Another example of a norm addressed to conflicts of interest, but in this instance operating through transparency, is the traditional release of tax returns. Mr. Trump declined to release them during the campaign, or any time prior to the conclusion of the audit now in progress. There is no rule; the choice is his.

So while the President-Elect overstates his view that Presidents are free of all conflict of interest rules--a president can be prosecuted, not just impeached, for bribery--he is not wrong that the rules don’t apply to the Chief Executive as they do to all other senior government employees.

David Rivkin and Lee Casey offer up a range of justifications for this presidential freedom from more extensive conflict of interest rules. They say that to attempt to regulate these conflicts will discourage wealthy people from running for office; they don’t seem to accept the proposition that someone seeking extraordinary political power might give something up for it and, if unwilling to do so, might be revealing something troubling about motivation or suitability. Or as Peggy Noon put the point in the Wall Street Journal: his job now is different and “it requires sacrifice.”

Mark Patterson observes that Donald Trump refuses to make the personal tax disclosure that is routinely and without exception expected of senior federal officials. He describes Congress’ strict enforcement of this obligation, which includes the deep probing of returns by the Senate Finance and other congressional committees that, in Patterson’s words, require “answers [to] dozens of detailed questions about sources of income, deductions, investments, tax treatment (and immigration status] of domestic employees and other topics.” Yet Trump says that in his case, it is “none of your business,” and so he is relying on the absence of any legal requirement of disclosure to deny the public what the senior officials he would appoint if President would have to provide. Patterson recommends that either the law be amended to compel presidential candidates to release this information or to provide it to congressional committees for review followed by a public assessment. (Note: Mark is one my colleagues at Perkins Coie.)

Why would presidential candidates, charged with reporting specific categories of financial information, not have to include their tax returns? The choice now is deemed to be theirs: a choice determined only by the pressures, or incentives or disincentives, of the political “marketplace”, or a personal sense of ethical obligation.

Committing this question to a purely political resolution represents a judgment that voters will set and enforce the transparency standard. They will either reward disclosure or punish candidates for resisting it, but one way or the other, voter will is what counts, and there is no need or place for a legal requirement. In fact, on this theory, it is better for the question to be referred to the voters, because they are the ones to ‘vet” the presidential candidate and to insist on what information they should have to meet their “vetting” function.

Donald Trump doesn’t have any particular feeling for irony and so he misses it altogether in his recent suggestion that the coming election is likely to be rigged against him. Of course he’s now doing the rigging: he’s rigging the post-election assessment of the results. If he wins, it reflects the will of the electorate; if he loses, that will has been thwarted, by a rigging.

This raises the question discussed here of whether, if there are limits to ends-justifies-the-means political ethics--if it is accepted that there are superior and inferior types of political morality-- Trump has exhibited clearly a moral style that is both distinctive and troubling.

It does not seem that there is a clear and shared view of when political ethics have become unacceptable, and so, in Trump’s case, the analysis has now shifted to issues of mental health. It is not suggested that his lying exceeds the limits of the ethically permissible but that we have departed from the domain of ethics altogether.

Talk about the corrupt politician is usually concerned with the exploitation of public position for personal gain. He misuses his office, or makes that promise, because he is dealing for himself—looking for personal profit or a political advantage, and leaving to the side the public interest he should be representing. And for the most part, he is condemned.

But if he stops short of that and engages in undesirable conduct to win his office and “get things done,” then the sense is that we are in the presence of the usual nasty stuff politics is made of, such as a certain amount of deceit and double-dealing and promise-breaking and just “hardball.”  It is widely, if not happily, accepted that the morality of politics is of a different kind, and politicians, effective ones, have no choice but to behave periodically in unattractive ways-- politics being what it is.

We also assume that there are limits the politician should observe. We would want the politician to exhibit, privately or publicly, a “habit of reluctance,” a discomfort with the moral costs of behaving certain ways. The fear would be that if there were no such reluctance, there would be, in the words of Bernard Williams, no “obstacle to the happy acceptance of the intolerable.” “Politics and Moral Character,” in Moral Luck (1981), at 63. The Nixon White House that arranged for sophomoric “dirty tricks,” like flooding an opponent’s state headquarters with unwanted pizzas, could and did slide toward far more serious misdeeds.  And the Nixon example shows that the moral choices in a campaign are not irrelevant to the choices made in governing.

Where in all these considerations does Donald Trump fit in? As a candidate and now the nominee of a major party, he has engaged in and made a splashy display of tactics that include notable carelessness with or disregard of facts, vicious personal behavior toward others, and threats to do personal harm (as in threatening to expose Ted Cruz’s wife etc.) He has drawn the charge of being a “demagogue” and a “bully”, of being “vulgar” and grossly irresponsible in the tactics he favors and the policies he advocates. What is left unclear is whether he is like Nixon, or he is a special case.