Trump's Cabinet lags disclosing conflicts — just like their new boss
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This week, the Senate will begin holding confirmation hearings on President-elect Trump’s cabinet picks. His advisors are quick to point out that the Senate confirmed seven of President Obama’s nominees on his first day in office in 2009 and assert that it would be unfair for the Senate to do any less for Trump. This glosses over a major difference.

By tradition, the Senate holds confirmation hearings on many cabinet designees before a new president takes office to minimize the time agencies are left leaderless at the start of a new administration.

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Barring any controversy, these nominees are then poised for a confirmation vote as soon as the new president is sworn-in on Jan. 20, or shortly thereafter. But most of Trump’s nominees, so far at least, have failed to provide the Senate with the information it needs to properly proceed with confirmation hearings.

 

To perform its constitutional duty to provide advice and consent on presidential nominations, the Senate has expected nominees to provide background information as part of the confirmation process. Much of that information is not required by law.

For instance, FBI background investigations of prospective nominees, a common practice for administrations since Eisenhower’s, and the revolving door restrictions, imposed for the first time by President Obama, are required by agreements with the Senate or by executive order.

But on matters related to conflicts of interest and financial disclosure, nominees must comply with the Ethics in Government Act, which Congress passed in 1978 after the Watergate scandal.

All nominees must complete the OGE-278 financial disclosure form, be subject to an ethics review by the agency to which they are being nominated, enter into an agreement with the agency’s ethics official to resolve any “actual or apparent" conflicts of interest, and have their disclosure and agreement certified by the Office of Government Ethics.

Under the law, the disclosure form and ethics agreement must be sent to the Senate within five days of a nomination. The ethics agreements are particularly important because they commit nominees to any necessary recusals, divestitures, resignations, waivers, qualified trusts, outside earned income limitations, and the resolution of severance and other payments.

The quirk of the next two weeks is that the Act’s requirements apply only to individuals who have been formally nominated by the president, an action that cannot take place until the president is sworn into office.

To help the Senate confirm a new administration’s nominees quickly, incoming presidents have understood the need to provide the Senate with the ethics package and other information prior to a designee’s confirmation hearings, whether strictly required by law or not.

The seven Obama nominees confirmed on Jan. 20, 2009, had obtained certified ethics agreements anywhere from six days to three weeks in advance of their January confirmation hearings.

In fact, a total of 24 high-level Obama designees had confirmation hearings prior to his swearing-in.

All of them submitted certified ethics agreements and financial disclosure forms to the Senate in advance of those hearings. In large part, it was because of Obama’s early attention to these requirements that the Senate confirmed 21 of his nominees by the end of his first week in office.

This is the standard the new administration should be held to if they want confirmation hearings prior to formal nominations being sent to the Senate.

Why is this important?

For all but the rarest of nominees, conflicts are unavoidable. Trump presents an unusual situation. Several of his cabinet designees are billionaires. Many have extensive financial holdings, complicated business relationships, and multiple sources of income, including from foreign investments.

Public trust requires assurances that government officials will act in the best interest of the country and not for their own interests. We would not want to have the official in charge of regulating a certain industry wondering how a new rule might affect their stock values. Nor would we want an official with foreign investments setting relevant U.S. foreign policy. Nominees face criminal penalties after they are confirmed if their conflicts are not resolved.

Senators should be able to use confirmation hearings to raise any concerns about a nominee’s disclosures, but that is not the only reason it is important to complete an ethics review prior to a hearing. A nominee should commit to taking the necessary steps to avoid conflicts before asking the Senate to consider their nomination.

There have been times when prospective nominees have declined the offer to serve once they have learned about the divestiture and other steps that would be required of them. Similarly, there have been times when the administration has concluded that the needed recusals would be so extensive that a candidate would be unable to do the job.

Jan. 20 is fast approaching and, so far, only five of Trump’s designees have submitted a complete pre-hearing package. Two of them, Sen. Jeff SessionsJefferson (Jeff) Beauregard SessionsBeto O'Rourke on impeachment: 'There is enough there to proceed' Rosenstein to appear for House interview next week Emmet Flood steps in as White House counsel following McGahn departure MORE (R-Ala.) and Rep. Mike Pompeo (R-K.S.), Trump’s nominees to be Attorney General and CIA Director, are sitting members of Congress and therefore have routinely filed financial disclosure reports in the past. 

The others who have completed ethics agreements include, Elaine Chao, Scott Pruitt, and Rex Tillerson, who hope to become the next secretary of Transportation, the EPA administrator, and the secretary of State, respectively.

As for Trump’s other nominees, we don’t know if the dearth of submissions is due to a slow start, unusually complicated financial holdings, or a deliberate attempt to shield nominees from scrutiny. After all, Trump has his own interest in convincing the public that conflicts of interest are no big deal.

Whatever the reason, the Senate should not weaken the standards for nominee disclosure. Each Senate committee should wait to hold hearings until it has a completed background investigation and certified ethics agreement for each Trump nominee – just as they did for Obama.

Caroline Chambers is deputy director of the Open Society Policy Center and served as President Obama’s first director of confirmations.


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