President Trump has a decision to make about the Office of Government Ethics (OGE), an agency whose director has been frequent critic of his administration.
With Walter Shaub's imminent retirement as director, it will be up to Trump to decide who takes over the agency on an acting basis and whom to nominate to run it going forward.
The decision is important because OGE helps vet the White House’s nominees, a crucial step before consideration in the Senate.
“[The position] may be vacant for a while because it takes time to find someone for the job, but I don't think he will intentionally leave it vacant for a long time,” said a Washington political law attorney who asked for anonymity. “He needs someone good in that position to clear his nominations.”
Trump could also choose not to nominate anyone for the director’s position, which would largely disarm the agency.
“In the Trump administration, they could do a lot just by doing nothing,” Marilyn Glynn, who served as acting director at OGE during the George W. Bush administration and hired Shaub at the agency, told The Hill.
The 70-person OGE was created in 1978, fresh after the Watergate scandal, and is responsible for writing federal ethics rules and assisting ethics officials throughout the government with complying.
Shaub, appointed by then-President Obama in 2013, has been outspoken about Trump’s financial holdings and possible conflicts of interest — a sharp contrast from how the OGE has conducted business in the past.
Some Trump critics have urged the agency to conduct investigations into various potential conflicts or punish officials who appeared to flout ethics rules. However, the OGE has no power to enforce ethics rules and can only ask other officials to look into potential wrongdoing.
Shaub said his frustrations with the White House’s pushback on long-established ethics regulations contributed to his resignation, which will be effective July 19.
“There isn’t much more I could accomplish at the Office of Government Ethics, given the current situation,” Shaub told The New York Times on Thursday after making his resignation public. He is headed to the nonprofit Campaign Legal Center to head up its ethics practice and push for reforms from the outside.
In the meantime, an acting director will take control of the agency that's mostly comprised of career officials who have been there for years.
Among the front of the line to take over is Shelley Finlayson, chief of staff at OGE. But other longtime employees could also be considered, including Emory Rounds, a lawyer at the agency.
While the White House did not talk about any details about the search, including who would be heading it up, Shaub announced his resignation last week while Trump was on an overseas trip.
"We intend to nominate someone in short order but have no additional personnel announcements at this time," said Lindsay Walters, a White House spokeswoman, in an email on Monday.
While an acting director has no less authority than a permanent one, not having a Senate-confirmed director can create problems.
“An acting director is rightly viewed as a placeholder, and that makes sense if you're an acting [director] for several months. When it drags on for years, then I think it's a disservice to the agency because you feel hamstrung in making needed changes that are more than just administrational things,” said Glynn, who held the acting director post for two years.
An acting director who comes armed to the job with an institutional understanding of the agency, for example, may see rules they want changed — either because they’re too strict or not strict enough.
“In order to get the rule change done, you have to get it through the White House and [the Office of Management and Budget],” Glynn said. “When it's coming from a person that doesn't have the direct connection politically, they're less interested.”
Ethics rules often have to go through the Justice Department, Glynn said, which may also take the same approach.
Glynn says that she sometimes had to wait weeks or months to secure a meeting with an administration official during her acting director tenure at OGE.
The Trump administration is already facing a backlog of more than 100 nominees for key posts requiring Senate confirmation, including at the State Department, Treasury Department and Justice Department.
Many of Trump’s nominees — especially Cabinet-level agency heads — have come with complicated financial portfolios that require time-consuming reviews by ethics officials.
Hundreds more slots are vacant without any formal nominees to fill them.
In light of that, it’s unclear if picking a new director of OGE will be top of mind for the White House — but Congress, which is responsible for approving any choice, may force the issue.
“I don't think Congress will stand for it for very long. They'll want it filled. The pressure would mount if it went for a long period without trying to nominate somebody,” said Carl Tobias, a law professor at the University of Richmond who tracks judicial appointments.
“He will feel some need to nominate and then hopefully somebody's not as strict, if you will, as the person who just resigned. That's my guess,” he said. “I don't know how you thread that needle or what that looks like.”
Many say the Office of White House Counsel, including counsel Don McGahn, would likely be leading the search for a new OGE director.
McGahn and a large number of the team of lawyers in White House came from private practice, including the counsel in charge of ethics, Stefan Passantino, who left the law firm Dentons to join the administration.
But filling the OGE slot with a lawyer from outside government could prove risky, as senators are likely to examine the nominee carefully.
“They could bring in an outsider, but given the problems with ethics, any outsider is going to get a close look, if it's someone from Trump's law firm, that's not going to fly,” said Richard Painter, a former White House counsel who has been critical of the Trump administration.
Many of the White House’s in-house lawyers, including McGahn, came from Jones Day, and Trump’s outside tax lawyer, Sheri Dillon, is from Morgan, Lewis & Bockius.
“The disruption factor depends on how involved a brand-new political appointee is going to be in the details and the nuance,” Don Fox, a former OGE acting director, told Mother Jones on Thursday. “If it’s someone who takes advice from the career folk, it might be OK. But frankly, I don’t have a whole lot of hope for the latter outcome.”