Executive Branch Personnel 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.
Presidents may choose to exercise this authority by issuing an ethics pledge.
A White House ethics pledge is simply an executive order by a President which specifies the ethical standards White House appointees must adhere to above and beyond those required by ethics laws and regulations already on the books.
White House staff must sign the pledge and, if a staff member violates the agreement, it is then up to the administration to determine whether it warrants disciplinary action.
Pres. George W. Bush did not issue an ethics pledge but instead simply issued a presidential memorandum which asked the heads of executive departments and agencies to ensure that their staff complied with already existing ethics laws and regulations.
Ethics pledges have included restrictions on presidential appointees accepting gifts from registered lobbyists and revolving door bans which restricted appointees leaving government from lobbying the agency in which they served within five years of leaving.
However, there have been a variety of issues with these pledges.
For starters, all the pledges issued so far have included provisions which allow the president to exempt an appointee from specific commitments listed in the pledge.
To do so, the administration simply issues an ethics waiver.
But not every administration’s pledge contained restrictions on when such waivers could be issued.
However, Pres. Trump’s Ethics Pledge contains no such provision.
As a result, the Trump administration can issue ethics waivers simply because it feels like it, even if it is not in the public interest, without technically violating its ethics pledge.
Furthermore, administrations have differed in how transparent they have been about who they have issued ethics waivers to.
The Clinton Ethics Pledge contained a provision which mandated that such waivers be released to the public.
And the Obama Ethics Pledge included a provision which instructed the Director of the Office of Government Ethics to produce an annual public report which detailed how many waivers were granted, to whom, and why.
However, the Trump administration had been issuing its ethics waivers in secret, preventing the public from knowing who was being granted such waivers and on what grounds.
When the administration finally released 14 ethics waivers to the public, after ethics groups applied pressure on it to do so, it was revealed that they had been secretly granting waivers allowing industry lobbyists to take government positions shaping policy toward the very same industries for whom they had lobbied and allowing White House staffers to communicate with former employers.
Moreover, it turned out that ten of these ethics waivers were both unsigned and undated. And one of these ten was unsigned, undated, and retroactive.
So even though they have now 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.
In at least one instance, it appears that a waiver was issued after a violation of the Pledge had already been committed in an effort to retroactively absolve the transgression.
The value of an ethics pledge whose obligations can simply be waived is questionable at best.
And in the worst case, a President may issue ethics waivers to the point that it renders an ethics pledge irrelevant.
Revoking the Ethics Pledge Before Leaving Office
Furthermore, there has been an instance in which a president issued an ethics pledge at the start of his administration, only to revoke it before leaving office, resulting in a de facto ethics waiver for some of the restrictions in the pledge.
On his first day in office, Pres. Clinton issued an ethics pledge that prevented executive agency appointees from lobbying the agency in which they serve within five years of leaving it.
But just before leaving office, he issued a new executive order revoking the ethics pledge.
Doing so rescinded the restriction on White House appointees going straight into lobbying after leaving office (though a federal law passed in 1978 still imposed a one-year ban).
The result is that the Clinton Ethics Pledge’s restriction on lobbying immediately after leaving office never really meant anything.
And this incident was particularly insidious because, by maintaining the ethics pledge while in office, Pres. Clinton received the political benefit of appearing to be tough on the revolving door between government and private sector positions, only to undo the ban just before leaving office, when public opinion on the issue no longer mattered because he was no longer eligible to run for office.
In short, an ethics pledge is simply an executive order issued by a President which specifies ethical commitments White House appointees must make above and beyond what is already required by existing ethics laws and regulations.
The content of these pledges differ among administrations.
However, all of the pledges issued so far have included provisions which allow the President to exempt an appointee from specific commitments listed in the pledge by issuing an ethics waiver.
Some administrations have been more transparent about who it's issuing these waivers to and why than others.
The current administration attempted to cover up nefarious use of these waivers by issuing them in secret until external pressure forced its hand.
And in one instance, a President simply revoked his ethics pledge before leaving office by issuing a new executive order, thereby rescinding the anti-revolving door restriction contained in the pledge.
Thus, the value of an ethics pledge is highly questionable because it is up to each administration to decide what restrictions it should contain, who it should apply to, whether to enforce it, and even whether or not to issue one at all.
Relying on ethics pledges to ensure a responsible executive branch ultimately means that we are relying on the benevolence of a politician.
That doesn’t always work out so well.