On January 28, 2017, President Trump issued an executive order addressing the ethics of his political appointees. This order, like that issued by President Obama, imposes on appointees ethical obligations that go beyond those found in statutes and regulations.
In some ways, Trump’s order resembles the executive order that President Obama issued on his first full day in office. Both orders take the form of an “ethics pledge”: a requirement that appointees sign an agreement pledging to abide by the restrictions found in the executive order. Both impose revolving-door restrictions on appointees entering and exiting the administration, along with a ban on accepting gifts from lobbyists.
Similar to the Obama order, the Trump order has a revolving-door restriction prohibiting appointees who were formerly registered lobbyists from participating in particular matters or specific-issue areas on which they lobbied. But, the Trump order omits the most controversial provision of the Obama order: the ban on registered lobbyists joining an agency they had lobbied within the previous two years.
Some argue that “personnel is policy,” and this lobbyist ban attempted to signal that the Obama administration would not be beholden to lobbyists and the special interests that hire them. It certainly limited the number of lobbyists who entered the Obama administration or at least delayed their joining until they had an opportunity to end their lobbyist registration and then wait out the two-year cooling off period. For example, Tom Malinowski, a human-rights activist, was considered for a State Department appointment in 2009 but did not get an appointment because he had registered as a lobbyist in 2008. That was the last year that Malinowski registered as a lobbyist, and, in 2013, President Obama nominated him for a State Department position.
As a candidate, Donald Trump repeatedly promised to “drain the swamp.” But, his decision to drop Obama’s lobbyist ban from his executive order signaled that the Trump administration would work closely with lobbyists. And, the Trump administration has done exactly that with gusto. An investigation by ProPublica and the New York Times found that the Trump administration has hired numerous former lobbyists into the agencies they used to lobby.
Another significant difference between the Obama and Trump executive orders is their approach to waivers. Both orders permit their restrictions to be waived.
The Obama order set out two circumstances under which restrictions could be waived:
- if literal application of a restriction was inconsistent with the restriction’s purposes; or
- if it was in the “public interest” to grant the waiver.
The order went on to explain that the “public interest shall include, but not be limited to, exigent circumstances relating to national security or to the economy.”
The Trump order also authorizes waivers but provides no guidance on when a waiver is appropriate. The head of the U.S. Office of Government Ethics has explained that granting a waiver is now “a political decision,” and therefore “career government ethics officials should not get involved in waivers under the new executive order.”
While the Obama order did not require that waivers be made public, the Obama administration made a practice of publishing the waivers it issued. An official who issued a waiver was required to certify that the waiver criteria were met, and that certification had to be in writing. As a result, that official – and the Obama administration more generally—could be held accountable for waiving the order’s requirements. Such accountability came early, when the Obama administration took political heat for issuing a waiver in January 2009 so that Raytheon lobbyist William Lynn could be appointed deputy secretary of Defense. In the following years, the administration issued only a handful of such waivers, allowing registered lobbyists to become political appointees.
The Trump administration appears to have published only one of its waiver decisions and has not indicated how many waivers it has issued. In addition, not all Trump appointees have actually been required the sign the pledge. Most notably, Trump’s initial National Security Advisor Michael Flynn did not sign the pledge and, thus, is not bound by its provisions. As a result, the ethics promises in President Trump’s executive order may end up being as illusory as his promises of charitable donations: public promises with little to back them up.
* Professor of law, Washington University in St. Louis. She practices law in Washington, D.C., and is an Associate Reporter for the American Law Institute’s Principles of Government Ethics, and she formerly served as a government ethics lawyer for the District of Columbia.