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The Trump Administration Issued Ethics Waivers in Secret Until May 31, 2017

Published: December 14, 2017

The Trump White House Ethics Pledge

 

U.S. law gives the president the authority to prescribe regulations for the conduct of executive branch employees.

The U.S. Code states:

"The President may prescribe regulations for the conduct of employees in the executive branch."

 

- 5 U.S.C. § 7301 (2016)

Presidents may choose to exercise this authority by issuing an ethics pledge.

 

On January 28, 2017, Pres. Trump exercised this authority by signing Executive Order 13770 into effect.

 

This executive order (EO), entitled “Ethics Commitments By Executive Branch Appointees,” specified the ethics commitments Pres. Trump’s executive branch appointees are ostensibly expected to uphold.

 

Every White House staff member was required to sign the ethics pledge, committing them to abide by it.

 

If a staff member violates the pledge, it is then up to the White House to determine whether it warrants disciplinary action.

"The Director of the Office of Government Ethics shall provide an annual public report and the administration of the pledge and this order." 

- EO 13490 of January 21, 2009. Sec 4(c)(5)

Ethics Waivers

 

However, Pres. Trump chose to reserve the right to issue exemptions to this ethics pledge.

 

Section 3 of the EO states that Pres. Trump or a designee may grant any of his appointees an ethics waiver which exempts the appointee from some of the restrictions in the ethics pledge.

 

Although the value of an ethics pledge whose obligations can simply be waived is questionable at best, Mr. Trump is not the first President to include such a provision in his pledge.

 

Nor is the Trump administration the first to use the provision.

 

For example, the Obama White House ethics pledge had a similar provision, and his administration used it to issue 17 ethics waivers while in office.

 

These ethics waivers were made public and posted on the website of the Office of Government Ethics (OGE). 

 

Moreover, the Obama White House ethics pledge instructed the Director of the Office of Government Ethics to produce an annual report documenting how well Obama administration appointees upheld the requirements of the ethics pledge and to make this report public:

Making these waivers public and having the OGE director produce an annual report on adherence to the ethics pledge allowed voters to scrutinize who was being exempted from which part of the White House ethics pledge and why.

 

It allowed for scrutiny of possible conflicts of interest and consideration of whether the appointment of an individual who requires such an exemption is actually in the public interest.

 

However, the Trump White House ethics pledge does not contain this provision.

Secret Ethics Waivers

 

Breaking with his predecessor, Trump's administration initially issued its ethics waivers in secret.

 

This decision not to release the waivers to the public prevented scrutiny of possible conflicts of interest by Pres. Trump’s White House appointees.

In response, then director of the Office of Government Ethics Walter M. Shaub Jr. sent a letter to the heads of federal agencies, the agencies’ ethics officials and inspector generals, the President’s Chief of Staff, and White House appointees on April 28, 2017.

 

The letter demanded that ethics waivers granted by the Trump administration be submitted to the OGE by June 1, 2017.

 

Rather than comply with the request, the White House challenged the legal authority of the OGE to request the waivers.

 

On May 17, 2017, Mick Mulvaney, the Director of the Office of Management and Budget wrote a letter to Shaub Jr. stating that the request raised “legal questions regarding the scope of the OGE’s authorities.”

 

It requested that the OGE’s demand be withdrawn.

 

Shaub Jr. responded on May 22, 2017 with a scathing letter discussing the legal basis for the OGE’s authority to request the waiver and detailing cases in which the previous administrations had complied with such requests.

 

On this basis, the letter stated that “the OGE declines your request to suspend its ethics inquiry and reiterates its expectation that agencies will fully comply with its directive by June 1, 2017. Public confidence in the integrity of government [decision-making] demands no less.”

Capitulation

 

On May 31, 2017, the Trump administration finally capitulated and released 14 ethics waivers to the public.


And considering who these ethics waivers were granted to, it makes perfect sense that the Trump administration tried to keep them secret.

 

The ethics waivers cleared the way for an insurance industry lobbyist to advise on reforming an insurance industry regulator, an energy industry lobbyist to work on energy and environmental policy, and a lobbyist for a financial services company to work on tax and retirement policy

Moreover, it turned out that 10 of these ethics waivers were both unsigned and undated. 

 

And 1 of these 10 ethics waivers was unsigned, undated, and retroactive

Assessment

 

The Trump administration has actively facilitated state capture - a form of government failure in which industry is able to formulate the rules that govern it – by issuing ethics waivers which allow industry lobbyists to work on changing policies that they had lobbied against.

 

And to mask this corruption, the administration kept the ethics waivers secret from the public.

 

When the waivers were finally released to the public, they turned out to be unsigned, undated, and in one case, retroactive which meant that even though they have been made public, we still do not know when they were issued, when they went into effect, and whether ethics violations had already occurred before they were issued.

 

All this indicates that the Trump administration is actively working to hand control of the state over to private interests, in secret if necessary.