White House Releases Ethics Waivers After Battle with OGE

Late yesterday, the White House updated its ethics waiver page with a list of 11 named White House staffers, all Executive Office of the President Appointees, White House Office Commissioned Officers, and “Former Jones Day employees” (the law firm that employed Donald F. McGahn II, Counsel to the President, and handled legal matters for the Trump campaign). The waivers allow the staffers to work on certain matters and policy issues despite conflicts of interest covered by President Trump’s ethics pledge and other laws and regulations. Until yesterday, the ethics waiver page stated that the “information on this page is being updated. Ethics pledge waivers will be published as they become available.”

It’s not every week that government ethics issues can trump meetings of world leaders, but last week’s battle between the Office of Government Ethics (OGE) and the White House’s Office of Management and Budget (OMB) ended up on most front pages. Here’s what unfolded.

On April 28, 2017, OGE sent a request to the White House and federal agencies to submit to OGE ethics waivers and authorizations by June 1, 2017. Those waivers and authorizations involve Trump and Obama appointees coming into the administration who are subject to certain ethics laws and regulatory restrictions. For example, the Trump appointee ethics pledge includes a two-year restriction for an appointee participating in particular matters that relate to their former employer and clients. Additionally, there is a two-year ban on former lobbyists who entered government service from participating in matters that they lobbied on in the two years prior to their appointment. A waiver for any restriction contained in the pledge may be granted by President Trump or his designee.

OMB responded to OGE on May 17, requesting that OGE stay its request and informing it that the Justice Department was going to look into OGE’s authority to make such a request. OGE responded to OMB on May 22 with a lengthy letter outlining its authorities and justifications for the requested ethics information.

The Project On Government Oversight weighed in on the matter in a letter to OMB on May 25, stating:

The enforcement of ethics agreements is vital for ensuring that the federal government is not beholden to special interests at the expense of the public’s interest. Enforcement is also important to uphold the intent of President Trump’s ethics order. POGO urges you to withdraw your request for a stay and to proactively post all appointee ethics records. Public access to ethics records is necessary for effective accountability and transparency. The public has a right to know who is influencing federal policies, missions, programs, and spending, and if those individuals are answering to former or prospective employers or clients.

One day later, OMB wrote to OGE stating that, although it had remaining legal questions about OGE’s request, it had “no objection to the substance” of OGE’s request for waivers and authorizations. The letter stated that “OMB did not issue or approve any waivers or authorizations[.]”

On Tuesday, OGE sent another memo to the White House and federal agencies reminding them to produce all ethics waivers and authorizations issued between May 1, 2016, and April 30, 2017. It appears that OGE is interested in the activities of the Trump administration as well as the last few months of the Obama administration when appointees might have been jumping to the private sector.

It is important to note that, since 2009, pursuant to a request by Senator Charles Grassley (R-IA), OGE has made ethics waivers publicly available, and the White House has publicly posted them as well. OGE also released annual reports about appointee compliance with the ethics pledge (Annual Report Pursuant to Executive Order 13490) from 2009 through 2015.

Secrecy regarding ethics records is very troubling. President Trump campaigned on the pledge to “drain the swamp,” and he proposed a “Five-Point Plan for Ethics Reform” that promised to “Make Our Government Honest Once Again.”

Although we support the use of ethics waivers in limited circumstances, POGO opposed them during the Obama administration when they were granted to those who had a personal or private financial interest, especially waivers granted to appointees who came from an industry with a “stranglehold on public policy.

Ethics waivers highlight current and former government officials who have conflicts of interest related to their government service. Ethics transparency and accountability is why we supported President Trump’s ethics executive order and why we supported OGE’s establishment of a certification program that tracks presidential appointees’ ethics compliance. POGO believes that public access to ethics records will help restore the public’s trust and faith in the government, and go a long way toward achieving President Trump’s goal to drain the swamp. Now that we have a look at the ethics waivers for those working inside the White House, it will be interesting to see if waivers are also being granted to appointees and other senior leaders running agencies. Stay tuned, because OGE might release that list as soon as tomorrow.