The Hot-Potato Scenario of Ethics Investigations

Last week, the Project On Government Oversight filed a complaint with the Office of Government Ethics (OGE) highlighting discrepancies between President Trump’s 2017 financial disclosure report and court records which state that Michael Cohen, the President’s longtime personal attorney, received more money from the President than what was reported in that disclosure. If the President knowingly and willfully underreported his liabilities in this report, that would be a violation of federal law—so we asked OGE to investigate.

However, the most aggressive move you could expect to see from this independent agency on a matter such as this, beyond the initial investigation, is a referral to the Department of Justice to further investigate at its discretion, largely because OGE has to pass off most of its investigations for any enforcement.

The agency’s mission is “to provide overall leadership and oversight of the executive branch ethics program designed to prevent and resolve conflicts of interest.” But the agency lacks the authority to approach that mission as aggressively as may be necessary to actually achieve it.

The law governing the agency lays out that, among other duties, OGE is responsible for writing conflicts of interest and ethics rules for the executive branch and “for monitoring and investigating compliance with the public financial disclosure requirements” of executive branch employees. However, the regulations explaining how the agency can do its job are less straightforward.

First, let’s go back to the letter POGO sent OGE. Court documents filed by the government show that Cohen received $420,000 from the Trump Organization in 2017. But the President’s financial disclosure for that year lists the amount paid to Cohen as $130,000. The possible violation of law detailed in our letter could be either or both a noncriminal or criminal violation punishable by a fine and/or imprisonment.

The agency’s investigatory powers and processes are slightly different for these two types of violations. And the investigation phase is where the gap between OGE’s authorities and procedures emerges.

OGE isn’t actually able to investigate or enforce any criminal violations of ethics laws. If the director of OGE finds any information indicating that an executive branch employee has violated a criminal law—such as knowingly and willfully providing false information to the federal government, what POGO just asked OGE to investigate—the director must notify either an inspector general or the Department of Justice.

If the director of OGE has reason to believe an official has violated noncriminal ethics rules or laws, they may make a recommendation to the Inspector General of the official’s agency or the agency head to conduct an investigation. If the director of OGE finds that an investigation hasn’t been conducted in a reasonable amount of time, they can also conduct an investigation.

After these investigations, the general counsel of OGE makes a written recommendation to the director for any action against the executive branch employee who is the subject of the investigation. At a few points in this process, the employee may elect to have a hearing to adjudicate the matter—this is one such point. If they don’t, the director of OGE then reviews the general counsel’s recommendation and may issue a decision on whether there was a violation of an ethics law or regulation. They may also include an order of corrective action here, to bring the employee into compliance with the laws or regulations.

But OGE’s authority on these matters effectively stops here: the director’s final product is “a nonbinding recommendation that appropriate disciplinary or corrective action be taken against the employee.” In other words, the process ends with a thud, which may explain why OGE has never conducted such an investigation. Under this system, the final decision on how to address most ethics violations rests with the heads of executive branch agencies, not with the one agency tasked with enforcing federal ethics laws and regulations.

In early 2017, then-Chairman of the House Committee on Oversight and Government Reform Jason Chaffetz (R-UT) and Ranking Member Elijah Cummings (D-MD) held a meeting with representatives from civil society, including POGO, to discuss how to better empower OGE to fulfill its mission. After this meeting, POGO Executive Director Danielle Brian sent a letter to the Committee detailing our recommendations, most of which focused on giving OGE more enforcement authority against noncriminal violations of the law, and investigative authority over both noncriminal and criminal violations. Other groups, including Issue One, the Campaign Legal Center, and Public Citizen, have made similar recommendations.

Additional ethics reforms should touch on strengthening the agency’s independence, increasing transparency, and replacing ever-changing presidential ethics pledges with a set standard of ethics regulations that apply to appointees. Federal ethics have long been in the spotlight—and now, so are the gaps in the current system that no one predicted. We need this ethics watchdog to both be stronger and have the tools to ensure that government agencies and officials act in the public’s best interest and not in their own personal interest.