The curious case of President Trump's ethics executive order
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It could be a significant effort to manage conflicts of interest in the Trump administration. Or it could be nothing at all. This is the curious case of Trump’s ethics executive order.

Let’s go back an administration to put this ethics executive order in perspective. On the first day that President Obama stepped into the White House, he issued a sweeping set of ethics and revolving door restrictions to which all presidential appointees had to pledge to abide. The Obama ethics order required appointees to declare they would never lobby the Obama administration after leaving public service, known as the “revolving door.”

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Most importantly, it imposed the first-ever “reverse revolving door” restrictions on those entering the Obama administration: all appointees pledged that they would recuse themselves from official actions that directly and substantially affect their former employers or clients of the last two years. It also banned lobbyists from being appointed to agencies they lobbied, but this was a minor provision, except in the eyes of K Street.

 

In tackling the reverse revolving door, Obama’s ethics executive order sought to manage the conflicts of interest that arise when appointing agency officials who come from the same industry the agency oversees. The ethics order worked well, making the Obama administration virtually scandal free in terms of conflicts of interest, especially compared to all previous administrations.

That is why many of us in the ethics reform community worked tirelessly to get a promise from the next president to preserve a version of that ethics executive order. We appealed repeatedly to the Trump campaign and, later, to the Trump transition team for such a promise, only to be greeted with silence.

When Trump spoke of “draining the swamp” and imposing revolving door restrictions on lobbyists, hopes were raised again, only to be dashed when no such ethics agreements being signed by Trump’s Cabinet nominees. Ethics seemed to be headed toward death by disregard.

Trump’s team even rejected an ethics training course for senior White House staff and administration appointees. The lack of training showed in one stumble after another in the early weeks of the new administration.

On a Saturday more than a week into the Trump administration, with no warning and no public input, Trump issued his ethics executive order. It contains revolving door restrictions on those leaving the Trump administration, including a five-year ban on conducting “lobbying activities” — which could be very sweeping in that lobbying activities include not just lobbying contacts, but also the strategic planning that goes into a lobbying campaign — and a lifetime ban on lobbying for foreign governments.

The order sounds good, except for one big caveat: it exempts rulemaking from the definition of prohibited lobbying activities. Developing rules and regulations is one of the primary tasks of the executive branch. If rulemaking is defined narrowly as responding to an official notice of proposed rulemaking, that exception poses no problem. But if rulemaking is defined broadly as the analysis and development of regulatory policies, this exception opens the door to full participation in executive branch affairs. Departing officials could immediately lobby the Trump administration on most issues.

But lo and behold. All may not be lost. Tucked away in the executive order is nearly a word-for-word reverse revolving door policy that mirrors the most critical element of Obama’s order: appointees must pledge to recuse themselves from official actions that directly and substantially affect their former employers or clients of the last two years.

No administration needs this reverse revolving door policy more than the Trump administration, with a Cabinet dominated by titans of industry who bring weighty conflicts of interest baggage into our government.

But questions of the integrity of Trump’s ethics executive order are many, none the least, does anyone in the Trump administration understand these new ethics rules?

The Office of Government Ethics is requiring all appointees to sign new ethics agreements in light of the Jan. 28 executive order, but these agreements are non-descript pledges to abide by the executive order without explaining its revolving door restrictions. George David Banks, for example, a lobbyist recruited into the Trump administration told ProPublica that he had signed the ethics pledge but no one in the White House counsel’s office contacted him about the ethics restrictions nor even the restrictions that apply to lobbyists.

This highlights another problem: the authority to implement and enforce the ethics agreements lies with White House Counsel Don McGahn, who made a law career specializing in evading campaign finance and ethics rules. Unlike the Obama administration, Trump has no ethics czar charged with making sure everyone knows about and complies with these rules. Significantly, the ethics executive order has been issued by a president who mocks such conflict of interest rules for himself, setting the tone for the rest of the administration.

Trump’s ethics executive order provides a potential framework for managing conflicts of interest in the administration, but it is a real puzzle how, when, or if these ethics rules are going to be implemented and enforced — or, for that matter, whether anyone even knows about them.

Craig Holman, Ph.D., is a government affairs lobbyist for Public Citizen, where he serves as the organization’s Capitol Hill liaison on campaign finance and government ethics. He previously worked as a senior policy analyst at the Brennan Center for Justice at New York University Law School. He assisted in crafting and implementing the original ethics executive order implemented by the Obama administration.


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