The chief ethics lawyer for President George W. Bush was baffled at the latest kerfuffle between the White House and the Office of Government Ethics.
On Monday, The New York Times reported that President Donald Trump’s White House refused to disclose to the OGE any ethics waivers granted to former lobbyists who now work in the administration.
Through a Freedom of Information Act request, the publication obtained a letter from Mick Mulvaney, the head of the Office of Management and Budget, to Walter Schaub, head of the OGE. The letter asked Schaub to withdraw a request he sent to federal agencies to obtain copies of all the waivers the administration has given.
The Trump administration claimed in the letter that Schaub did not have the legal authority to demand the waivers. Painter said that wasn’t good enough.
“Is there any rationale that wasn’t purely a legal argument?” Richard Painter, Bush’s chief ethics lawyer from 2005 to 2007 and currently a University of Minnesota law professor, told Business Insider. “What’s a rationale that is not a legal argument? I haven’t heard it.”
“So was there any good policy reason not to share waivers with the Office of Government Ethics?” he said.
Several former lobbyists and industry lawyers now hold administration jobs. The Times reported that Trump has hired ex-lobbyists at a rate that far surpassed his predecessor, former President Barack Obama, despite pledges to the contrary. Schaub, who was appointed to his role by Obama and is in the last year of his five-year term, told the Times the White House request was “extraordinary” and he has “never seen anything like it.”
Without the waivers, the OGE, which provides ethical oversight of the executive branch, would have no way to know whether any former lobbyists are violating ethics statutes or have been excused by the White House. In a statement to the Times, the White House said the Obama appointee’s request for the waivers was partisan politics.
Trump made ties between politicians and lobbyists a sticking point of his campaign, frequently promising to “drain the swamp.” In late January, he signed an executive order that barred former lobbyists from working on matters that involved people and issues they worked with or on previously. In that order, Trump, like Obama before him, provided the option for himself to issue waivers to lobbyists as he sees fit. But that executive order did not contain language that made the waivers public.
Painter, who supported Democratic presidential nominee Hillary Clinton during the general election, said the executive order also does not say whether those waivers are confidential.
“You know, if the president wants to revise the ethics executive order” to say that they are confidential, they “still should be shared by the Office of Government Ethics,” Painter said. “But then the office would have to not disclose them. … But the order did not say that the waivers were confidential.”
“And so, in any event, it is critical to OGE’s function … that it knows what’s going on in the agencies, including in the White House, with regards to ethics compliances and waivers,” he added. “It’s clearly within OGE’s statutory mandate to gather this information. So, what is the reason for withholding it? There’s no reason whatsoever for trying to keep the ethics waivers secret from the Office of Government Ethics. There’s no justification for that. So I don’t know why they’re doing it.”
The OGE, under the laws Painter referenced, has authority to make such a request of federal agencies. The Times reported that it is debated whether the White House itself is a “federal agency” that falls under the same requirements. Regardless, the letter from Mulvaney to Schaub made it clear the administration was halting the OGE’s request for copies of the waivers issued throughout the administration by June 1 across all of the executive branch.
“This data call appears to raise legal questions regarding the scope of OGE’s authorities,” the letter read. “I therefore request that you stay the data call until these questions are resolved.”
OMB also falsely claimed in a statement that the letter obtained by the Times was “leaked.” It was obtained through a Freedom of Information Act request.
On Monday, Schaub wrote a letter to Mulvaney rejecting the White House’s request that the OGE suspend its initial request for the waivers.
“The unusual nature of your letter highlights OGE’s responsibility to lead the executive branch ethics program with independence, free from political pressure,” Schaub wrote. “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. Public confidence in the integrity of government decision making demands no less.”
“OGE is exercising its authority and independence appropriately,” he later wrote. “OGE’s April 28, 2017, directive is supported by ample legal authority and compliant with applicable procedures. I want to assure you that a request from the Director of the Office of Management and Budget is not something that I decline lightly.”
In a call with Mulvaney on Monday night, Senate Minority Leader Chuck Schumer asked the director to fulfil Schaub’s request.
“There is absolutely no excuse for the administration to keep these waivers from the OGE or the American people,” the New York Democrat said in a Tuesday statement on the call. “I also expressed to Director Mulvaney my deep frustration with President Trump’s failure to keep his promise to ‘drain the swamp,’ and he assured me that he would take my concerns under consideration — I hope they make this change for the good of our country.”
Paul S. Ryan, vice president of common cause and former executive director of the campaign legal center, called the move to block Schaub’s request “an outrage and part of a disturbing pattern.”
“OGE was created in the wake of the Watergate scandal to monitor ethics compliance, but the Trump administration is denying it the ability to do so,” he said in a statement. “The OGE is charged with ensuring government compliance with ethical standards and it must be allowed to perform that duty. This is the latest example in a long line of troubling moves by the Trump administration to conduct the business of government in secret.”
During the campaign, Trump made “draining the swamp” and his opponents ties to lobbyists central to his message, particularly in the later weeks of his quest for office when he introduced the slogan.
He claimed that opponents such as Ohio Gov. John Kasich, Sens. Marco Rubio of Florida and Ted Cruz of Texas, former Secretary of State Hillary Clinton, and former Gov. Jeb Bush of Florida were all compromised by the influence lobbyists held over them.
“Crooked Hillary Clinton is bought and paid for by Wall Street, lobbyists and special interests,” Trump tweeted in July. “She will sell our country down the tubes!”
“I am self-funding my campaign and am therefore not controlled by the lobbyists and special interests like lightweight Rubio or Ted Cruz!” he wrote last February.
And in June 2015, he wrote: “Remember, politicians are all talk and no action – they will never be able to MAKE OUR COUNTRY GREAT AGAIN! Controlled by lobbyists & donors.”
Asked if the administration’s refusal to provide the waivers violated Trump’s ethics-related promises during the campaign, Painter said “of course it does.”
“They put this executive order in and then they seek secret waivers and they won’t even tell the Office of Government Ethics about the waiver,” he said.
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