The Trump Administration Issued Unsigned, Undated, Retroactive Ethics Waivers
The authorization of 10 undated waivers means that we do not know when these waivers were meant to go into effect.
Moreover, these undated waivers were also unsigned, meaning that, as per Sec3(b) of Trump's own executive order, which states that ethics waivers go into effect upon being signed by the president or a designee, the waivers never actually went into effect.
Furthermore, one of these unsigned, undated waivers was also explicitly issued retroactively, absolving the transgressions of White House staff who had already violated the ethics pledge's restriction on communications with former employers.
It appears that this retroactive waiver was issued for the benefit of Steve Bannon, who was the subject of scrutiny for allegedly having communicated with his former employer, Breitbart, about official matters.
The decision to simply issue a “retroactive” ethics waiver, in contravention of appropriate government ethics, rather than investigate and, if necessary, reprimand Steve Bannon for allegedly violating the ethics pledge demonstrates a lack of concern about government ethics on the part of the Trump administration.
If ethics waivers can be issued after a violation has been committed or allegedly committed, it renders meaningless the whole exercise of having staffers sign an ethics pledge in the first place.
The issuing of unsigned, undated, and retroactive waivers shows that the Trump White House Ethics Pledge means absolutely nothing.
Published: February 2, 2018
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 President may prescribe regulations for the conduct of employees in the executive branch."
On January 28, 2017, Pres. Trump exercised this authority by signing Executive Order 13770 into effect.
(Click here to learn about executive orders.)
This executive order, entitled “Ethics Commitments By Executive Branch Appointees,” specifies the ethics commitments Pres. Trump’s executive branch appointees are ostensibly expected to uphold.
If a staff member violates the pledge, it is then up to the White House to determine whether it warrants disciplinary action.
(Click here to learn more about White House ethics pledges.)
One of the provisions contained in the ethics pledge is a two year restriction on former lobbyists working in the Trump White House participating in matters related to any lobbying they had done within the past two years:
“If I was a registered lobbyist within the 2 years before the date of my appointment ..... I will not for a period of 2 years after the date of my appointment participate in any particular matter on which I lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”
However, Pres. Trump, like his predecessor, chose to reserve the right to issue exemptions to this ethics pledge.
The ethics pledge contains a specific provision which allows Pres. Trump or a designee to grant any of his appointees a waiver which exempts the appointee from certain restrictions in the ethics pledge:
"The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person."
Although the value of an ethics pledge whose obligations can simply be waived is questionable at best, it has not been unusual for a president to exempt certain staff members from specific restrictions in an ethics pledge.
For example, Pres. Obama issued 17 ethics waivers during his time in office.
What is certainly inappropriate is for an exemption to be granted retroactively, meaning that the waiver would nullify any violations of the ethics pledge which have already taken place.
If waivers can be issued after a violation has been committed, it would render meaningless the whole exercise of having staffers sign an ethics pledge in the first place.
Furthermore, after the Office of Government Ethics became aware of the issuing of retroactive ethics waivers in 2010, it issued an opinion which stated that such waivers are not allowed.
Moreover, Pres. Trump’s own ethics pledge precludes the issuance of a retroactive waiver:
“A waiver shall take effect when the certification is signed by the President or his designee.”
It is also inappropriate for a waiver to be undated, because the public cannot determine when the waiver was signed, and therefore, does not know when it went into effect.
It is further inappropriate for an ethics waiver to be unsigned because waivers only take effect once they are signed by the President or a designee, as stated in Sec. 3(b).
Unsigned, Undated, and Retroactive
Until May 31, 2017, the Trump administration had been issuing ethics waivers to its staff in secret.
And it's no wonder the administration attempted to keep its waivers secret: when the administration finally released the ethics waivers to the public, after pressure from watchdog groups, it was revealed that the administration had been issuing waivers allowing former lobbyists who have now taken positions in the administration to work on the exact issues they had previously lobbied on.
One of the ethics waivers allows a former energy industry lobbyist to work on energy and environmental policy.
Another allows a former financial industry lobbyist to advise on reforming tax and retirement policy.
Still another allows a former insurance industry lobbyist to work on reforming an insurance regulator.
But beyond using ethics waivers to facilitate state capture, the waivers also violated all three of the above mentioned norms for issuing ethics waivers.
Of the 14 ethics waivers released to the public, 10 of them were both unsigned and undated.
And 1 of these 10 ethics waivers was unsigned, undated, and retroactive.
This retroactive waiver dealt with section 1, paragraph 6, of the ethics pledge.
This paragraph of the ethics pledge prevents White House staff from participating in matters involving a former employer within the first 2 years of taking up a position in the White House:
"I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts."
The ethics waiver retroactively waived this restriction if the former employer is a media organization:
“I am issuing this memorandum retroactive to January 20, 2017 to provide a limited waiver to the restrictions found in paragraph 6 of the Ethics Pledge for all appointees in the Executive Office of the President. This limited waiver allows appointees to participate in communications and meetings with news organizations on matters of broad policy and particular matters of general applicability....” [emphasis added].
In other words, on January 28, 2017, Pres. Trump issued an executive order appropriately barring his White House staff from talking to former employers about official matters, and then, on May 31, 2017, decided that if a White House staff member had violated this restriction by talking to a past employer that happens to be a news organization, that is not a problem.
Why Issue a Retroactive Waiver?
While the waiver released all White House staffers from the restriction against communicating with media organizations for whom they previously worked and does not mention any individual staffer by name, the New York Times pointed out that the waiver appeared to benefit Steve Bannon, Pres. Trump’s Chief Strategist from January 20, 2017 to August 18, 2017.
On March 30, 2017, Citizens for Responsibility and Ethics in Washington, a non-profit watchdog group, had sent a letter to White House Counsel Don McGhan calling for an investigation into whether Bannon had violated the ethics pledge by “repeatedly communicating about official matters with his recent former employer, the Breitbart News Network (“Breitbart”).”
The issuance of a retroactive ethics waiver allowing such contacts would render such an investigation unnecessary.