April 4, 2019
Last month, the Office of Government Ethics (OGE) released three previously-undisclosed ethics waivers, two of which were issued long before OGE made them public. The delay appears to be the result of the Department of State and the Department of Energy’s failure to disclose the issuance of the waivers for months, violating an OGE directive.
In September 2017, OGE issued a Program Advisory directing that agencies must provide it with copies of all waivers to President Trump’s ethics pledge, Executive Order 13770 (EO 13770), “as they are issued.” Two of the waivers released by OGE last month seem to show that at least some federal agencies may not be cooperating with this directive. They also raise the possibility that even more Trump administration officials may have obtained waivers to EO 13770 than has been publicly disclosed.
EO 13770 requires Trump administration political appointees to sign an ethics pledge that imposes a number of ethics restrictions, including a prohibition against working on certain matters related to their former employers or clients. But EO 13770 also allows the administration to grant an ethics waiver excusing an appointee from adhering to these restrictions.
The purpose of EO 13770 is to prevent conflicts of interest and undue influence by special interests. Its effectiveness in achieving this purpose is diluted with the issuance of each new waiver. As such, the public has a strong interest in knowing at any given time how many—and which—Trump administration officials have received waivers permitting them to work on matters that pose ethics concerns.
On March 14, 2019, OGE released an EO 13770 waiver issued to Mary Kissel, Senior Advisor to the Secretary of State. The waiver permits Ms. Kissel to work with her former employers and clients—News Corp., 21st Century Fox, and Cumulus Media—on matters such as “placing editorials on behalf of Department of State officials,” interviews, and briefings.
White House Counsel Pat Cipollone granted Ms. Kissel the waiver on December 21, 2018, nearly three months before OGE released it to the public. This delay left the public unaware that a former Fox contributor inside the State Department may have been working with the network’s employees at a time when the Trump administration’s relationship with Fox News was being heavily scrutinized.
Another waiver OGE recently posted online suffered an even longer delay. On March 21, 2019, OGE added the Department of Energy’s Deputy Administrator for Defense Programs Charles Verdon to the list of Trump administration officials who have received EO 13770 waivers. Former White House Counsel Don McGahn had issued the waiver in April 2018 to all Senate-confirmed presidential appointees at the Department of Energy serving in “nuclear-related positions.” As a Senate-confirmed presidential appointee, Mr. Verdon became covered by the waiver immediately upon assuming his position at the Department of Energy’s National Nuclear Security Administration in October 2018, more than five months before OGE notified the public that he received such a waiver.
A third waiver posted on OGE’s website in March 2019 authorizes Counselor to the Attorney General William Levi “to participate in the Huawei matter in which his former law firm represents an entity involved in the matter.” In contrast to Ms. Kissel and Mr. Verdon’s waivers, OGE released Mr. Levi’s waiver to the public the same week it was issued.
Ms. Kissel and Mr. Verdon’s waivers are not the first EO 13770 waivers to be withheld from public view for months. In November 2018, CREW obtained from the Department of Justice a copy of an EO 13770 waiver that Mr. McGahn had issued to Solicitor General Noel Francisco in April 2018. CREW reported its discovery of this waiver, noting that it might enable Mr. Francisco to assume control of Robert Mueller’s special counsel investigation if Deputy Attorney General Rod Rosenstein resigned or was fired. Following CREW’s report, OGE released a copy of the previously-undisclosed waiver on its website. The delay in the disclosure of Mr. Francisco’s waiver suggests that, though DOJ was prompt in delivering Mr. Levi’s waiver to OGE, DOJ has not always followed OGE’s directive regarding the need to release EO 13770 waivers “as they are issued.”
The fact that some EO 13770 ethics waivers are timely disclosed while others are not suggests that some agencies are not sending the waivers to OGE when they are issued. It is possible that additional EO 13770 waivers have been issued but remain hidden from the public. In the interest of full disclosure, agencies must send any previously-issued EO 13770 waivers they failed to provide to OGE and commit to sending new waivers to OGE as they are issued, and OGE must promptly make them public.