Newly Released Agency Ethics Waivers Leave Much Unanswered
As promised, the Office of Government Ethics on Wednesday released a batch of ethics waivers granted to agency officials. While it appeared to contain no bombshells, the unveiling left both the ethics agency and outside critics hungry for greater detail.
The copies of 17 letters or memos allowing waivers from conflict-of-interest rules to various agency officials, some with redactions, shed light on the pre-appointment activities of several Trump administration appointees, and, surprisingly, included a couple that were never made public by the Obama administration. A separate batch of waivers from the White House came on June 1.
Among the Trump team waivers was one that went to Homeland Security Secretary John Kelly that he could participate in matters affecting the government of Australia, despite his past business work there. Acting General Counsel and DHS Designated Agency Ethics Official Joseph Maher told Kelly the waiver was granted because “you no longer have a personal financial interest that is affected by Australia” and because of “the critical need for your engagement in homeland and national security; and the probability that DHS's role could be undermined on a national and international scale or could be detrimentally affected by significant inefficiencies if you are restricted from interacting with any national or international group or official solely due to the Government of Australia's involvement or participation."
A short email to Seema Verma, whom President Trump appointed to run the Centers for Medicare and Medicaid Services, from Elizabeth Fischmann at the general counsel’s office of the Health and Human Services Department cited U.S. code sections and said: “Ms. Verma is subject to recusal requirements for specific party matters in which the states of Arkansas, Indiana, Iowa, Kentucky, Ohio, South Carolina, or Virginia are parties or represent parties. In light of the factors provided at 5 C.F.R. 2635.502(d), I am authorizing her participation as CMS Administrator in the conference call and meetings with state governors occurring today, Tuesday, March 14, 2017. The nature of the conference call and the factors, considered together, would not lead a reasonable person to question Ms. Verma's impartiality in this matter.”
Brian Callahan, whom Trump named as deputy general counsel at the Treasury Department, won a letter from Treasury’s designated agency ethics official, Rochelle Granat, saying, “This memorandum documents that I have granted you a limited authorization pursuant to the Standards of Ethical Conduct for Employees of the Executive Branch (Standards) to allow you to participate fully in policy matters related to housing finance reform even if an issue arises that might impact pending litigation in which your former employer, Cooper & Kirk PLLC, represents one of several plaintiffs. Notwithstanding this limited authorization, you have elected to refrain from any participation in the management of the litigation, including any communication with your former employer concerning this matter.”
The unexpectedly tardy waivers from the Obama era affected then-National Security Adviser Susan Rice; Mary Jo White, then chairman of the Securities and Exchange Commission; and Karen Florini, the State Department’s deputy special envoy for climate change. (OGE published a complete list of Obama-era waivers.)
Office of Government Ethics Director Walter Shaub told The New York Times that recovery of these Obama-era waivers showed that his ongoing requests (and feuds with the Trump White House) for these documents were not political. “The fact that we discovered that two agencies [Justice and State] failed to send us documents highlights the importance of O.G.E. conducting oversight activities like this,” he said.
The OGE has no enforcement powers, and relies on each agency’s designated ethics official for compliance with disclosure and waivers. The office does make its documents public after suitable review, including providing a list of agencies that reported no waivers granted.
Several outside transparency groups and individuals have been filing Freedom of Information Act requests for such waivers. The nonprofit Project on Government Oversight began filing such requests in April, and considers President Trump’s overall ethics pledge “paper thin,” two of its staffers said in a Wednesday blogpost.
They highlighted the absence of waivers from three Trump appointees with backgrounds as lobbyists: Office of the United States Trade Representative counsel Stephen Vaughn, who lobbied on trade law for Skadden, Arps, Slate, Meagher and Flom; Small Business Administration adviser Nathan Miller, who lobbied for Public Strategies Washington Inc. and the OB-C Group in recent years; and Labor Department staff member Byron Anderson, who lobbied for Transamerica Corp. on financial planning issues.
POGO said it had received answers from 26 out of 54 agencies where it filed a FOIA. Fourteen said they had no responsive records; seven had only a partially responsive document but no waivers; two withheld responsive records (the Federal Deposit Insurance Corp. and the Consumer Financial Protection Bureau); and three provided no records (the Postal Service, the Securities and Exchange Commission and the Veterans Affairs Department).
“It is difficult to fully assess how President Trump’s ethics pledge is working in practice without more information on the political appointees,” wrote POGO investigators Daniel Van Schooten and Laura Peterson. “In part, that’s due to the design of his ethics pledge. But the reliance on self-reporting by individuals, vague definitions, lack of transparency, and no general requirement for written recusals are systemic problems that transcend the Trump administration that should be addressed immediately.”