Trump faces decision on ethics waivers for officials

The names of former lobbyists and industry officials working in the Trump administration may soon become public, now that sparring between the White House and the independent ethics office has come to an end. 

The White House on Friday announced that it would be posting any waivers to the administration’s ethics pledge by the deadline on June 1, ending a standoff with the Office of Government Ethics (OGE) over their release. Those waivers could include former lobbyists who are now working in the administration. 

White House press secretary Sean Spicer, however, cautioned on Tuesday that President Trump had not yet signed off on any of the ethics waivers. 

“We’ll let you know” when he has made those decisions, Spicer said. 

Here’s what you need to know about the waivers and who might receive them.

Who could be affected by the waivers?

The Trump administration has appointed several people who have recently worked as registered lobbyists. While a handful have been reported, it’s likely that there are others whose roles have not been publicized.

Within the White House specifically, Michael Catanzaro, a former lobbyist from CGCN Group who represented a slew of energy industry clients, is now working as Trump’s top energy adviser.

Trump’s adviser on retirement policy is Shahira Knight, who previously worked as a lobbyist for Fidelity, which offers financial planning advice, retirement accounts and other investing tools.

Who might need a waiver?

A waiver can be granted to former lobbyists appointed to the executive branch if their job entails working on policy issues that came up in their former jobs.

That situation is common, as a lobbyist’s expertise in a policy area is often the reason they’re hired. As an alternative to a waiver, officials can recuse themselves from working on matters involving former clients or employers. 

Copies of the waiver documents are due by June 1, though the files may not fully capture the extent of former lobbyists now working in Trump’s administration.

Although the White House has several former lobbyists and industry executives nominated for jobs, several of them have yet to be unconfirmed by the Senate, including David Bernhardt, a former energy lobbyist at top K Street firm Brownstein Hyatt Farber Schreck, who has been chosen to be the No. 2 official at the Interior Department.  

Since the waivers are granted as a way around the administration's ethics pledge, they cannot be granted until a person joins the administration.

Why are the waivers granted?

Ex-lobbyists and other industry executives have been part of presidential administrations going back decades, but their role was curtailed somewhat by President Obama’s executive order in 2009.

Obama set a benchmark for White House and executive branch hires that was unprecedented at the time: Anyone who had worked as a registered lobbyist within the prior year was banned from having a job in the administration. To get around that restriction, a lobbyist would have to be granted a waiver.

Obama intended the rules as a check against conflicts of interests. Critics argued, though, among other things, that they kept qualified candidates out of the government and drove the influence industry underground by encouraging lobbyists to de-register.

Being a registered lobbyist, which carries its own legal requirements, is key to the tougher conflict-of-interest restrictions.

Nancy Beck, a senior official within the EPA office that regulates chemicals, for example, came from the American Chemistry Council, an industry group. Although she served as its senior director of regulatory science policy, Beck likely does not need a waiver to handle chemical industry issues because she was not a registered lobbyist. 

Officials who did not work as lobbyists before joining the government only need a waiver if policy decisions would inordinately effect a former employer or client, as opposed to an industry as a whole. 

How does Trump’s policy differ? 

Trump borrowed large chunks of Obama’s ethics executive order while making some key changes.

Within the provision on ethics waivers, Trump nixed the ban on former lobbyists taking jobs in the administration, but kept the tightened ethics rules for appointees who had been registered lobbyists within the last two years.

The Obama administration put the Office of Management and Budget in charge of signing, or designating someone to approve, waivers to the ethics pledge. Now, Trump himself — or a person of his choosing — makes the call.  

Trump’s executive order also removes the Obama-era requirement that officials explain why a waiver was issued and eliminates the oversight mechanism carried out by the OGE. During the last administration, the ethics office would conduct an annual evaluation of how each agency was complying with the ethics pledge.

Why did the White House and the OGE clash?

The OGE and the White House feuded over whether the ethics office had the authority to ask for all the waivers executed within the federal government.

Office of Management and Budget Director Mick Mulvaney said in a letter that the OGE’s request for the waivers “appears to raise legal questions regarding the scope of OGE’s authorities … I therefore request that you stay the data call until these questions are resolved.” 

Walter Shaub, the director of the OGE, denied the request in a reply to Mulvaney, calling it “unusual.”

“The unusual nature of your letter highlights OGE's responsibility to lead the executive branch ethics program with independence, free from political pressure,” Shaub wrote in the letter, which was sent to key members of Congress that lead committees on government oversight and the judiciary, along with the hundreds of pages of supporting documents.

“Accordingly, OGE declines your request to suspend its ethics inquiry and reiterates its expectation that agencies will fully comply with its directive by June 1, 2017,” Shaub continued. “Public confidence in the integrity of government decisionmaking demands no less.”

Members of Congress weighed in on the matter, pressuring the administration for the release of the documents.

On Friday, Mulvaney wrote back, saying that Shaub had misinterpreted his letter, and OMB had not intended to scuttle the request for the forms.

“OMB shares the belief that the executive branch must uphold the highest ethical standards in accordance with the law,” Mulvaney wrote. “Contrary to your assertions, OMB has never sought to impede OGE nor to prevent others, including agencies from acting as required by law.”

Its legal concerns surrounded “protecting the process related to the data call," he continued. "We have no objection to the substance."

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