President Trump’s failure to address his own massive conflicts of interest set the tone for many of his key cabinet nominees as well as the confirmation process. Several nominees have not adequately resolved their own ethical issues, while others face serious questions about their honesty and integrity. The Trump cabinet nomination process also presented unique challenges for the Office of Government Ethics (OGE) and agency ethics officials because of the extensive wealth and complexity of several candidates’ holdings and the reluctance of some to commit to full divestiture from conflicted assets or to broad, clear, and unambiguous recusals. Additional challenges arose from delays by some nominees in submitting the necessary ethics paperwork to OGE and from the accelerated confirmation hearing schedule.
As discussed in greater detail on the following pages, cabinet nominees such as Secretary of Education Betsy DeVos, Administrator of the Environmental Protection Agency Scott Pruitt, and Secretary of Commerce Wilbur Ross failed to adequately address serious conflicts of interest through divestiture or broad and unambiguous recusal commitments. OGE and agency ethics officials apparently were unsuccessful in their attempts to persuade these nominees (and the senior White House and transition officials overseeing the nominations) to accept outcomes other than very narrow recusals. These recusals only meet the minimal legal standards, can often be meaningless in practice, and do not adequately address the larger and more serious ethics concerns presented. The nominees’ problems were compounded by an apparent lack of ethical leadership or awareness on the part of the Trump administration at a political level to require its candidates to make the appropriate ethics commitments as a condition of their nomination.
Other nominees presented fundamental questions of veracity and integrity. For example, Secretary of Health and Human Services Tom Price agreed to divest his stock holdings in conflicting health care companies but failed to adequately address the clear conflicts of interest and allegations of insider trading that plagued his initial purchase of some of these stock holdings while serving on committees in Congress with significant responsibility over health care matters. In the case of Attorney General Jeff Sessions, his testimony during his confirmation hearing raised serious doubts about his honesty and veracity with regard to his communications with Russian officials during the 2016 presidential campaign. As the possibility of coordination by the Trump campaign with the Russian government was at the time, and continues to be, the subject of several investigations, including by the Federal Bureau of Investigation, his failure to be fully forthcoming raises serious concerns about his integrity and judgment as the most senior law enforcement official in the U.S. government.
In contrast, Secretary of State Rex Tillerson has in at least one case committed to a recusal above and beyond that which is technically required under the Standards of Ethical Conduct for Employees of the Executive Branch to address an apparent conflict of interest. In that case, which involved the Keystone XL pipeline, Secretary Tillerson recused himself from participating even though his former employer was not technically a party to the matter, but would likely benefit if the project were to be approved. While this measure alone does not represent a commitment to recuse from every foreign policy matter affecting his former employer’s financial interests, it demonstrates an awareness of the need to be sensitive to ethics concerns.
The nomination process also presented challenges for OGE and agency ethics officials because of the failure of several nominees to fully complete their ethics paperwork prior to their hearings being scheduled.[i] This was no mere procedural issue. A rush to jam nominations through can have a disruptive impact on the ability of the Senate to meaningfully advise and consent and the ability of government ethics officials to meet their legal obligations without feeling unduly compromised. This approach also stands in contrast with prior transitions’ efforts to resolve nominees’ conflicts of interest with OGE in advance of the confirmation hearings.[ii]
In past transitions, OGE reported that the public financial disclosure report and ethics agreement for a nominee were fully completed prior to the nominee’s announcement in the “overwhelming majority” of cases.[iii] By contrast, in some cases during the Trump transition, OGE had not received even the initial draft financial disclosure reports for nominees whose hearings had been scheduled.[iv] The failure to complete the necessary ethics paperwork left some Trump nominees with “potentially unknown or unresolved ethics issues shortly before their scheduled hearings.”[v]
President Trump has sent 62 nominations to the Senate, of which 27 nominees were confirmed by the Senate as of April 25, 2017.[vi] Other modern presidents have been more successful in getting nominations through the Senate in their first 100 days.[vii] The slow pace with which some of President Trump’s nominees completed the necessary ethics paperwork (possibly due to the complexity of their holdings) may have impacted the total number of nominations the Trump administration sent to the Senate during the first 100 days, as well as the number of nominees who were then able to be confirmed.
In response to concerns expressed by OGE, the Senate delayed hearings previously scheduled for several Trump cabinet nominees.[viii] Senate committee hearing dates were pushed back for Secretary DeVos, Secretary of Labor nominee Andrew Puzder, and Director of the Central Intelligence Agency Mike Pompeo, to allow “for more time to collect and review the standard background checks the nominees traditionally undergo before their hearings commence.”[ix] Secretary of Commerce Wilbur Ross also had his hearing delayed because his ethics agreement had not been completed.[x]
It should be noted that some Trump cabinet nominees, such as Director Pompeo, Secretary of Defense James Mattis, Secretary of Homeland Security John Kelly, and United Nations Representative Nikki Haley, made it through the confirmation process unscathed and were confirmed with a minimum of ethics issues. Notably, these individuals all had prior federal or state government experience. Other nominees suffered from a lack of being fully vetted for conflicts of interest and other issues prior to being nominated and were ultimately withdrawn, such as Mr. Puzder, Vincent Viola, and Todd Ricketts. Several others were confirmed, but without bipartisan support due to serious ethics issues that had not been adequately addressed during the confirmation process. A discussion of some of these nominees and their notable ethics issues follows.
Betsy DeVos – Secretary of Education
Scott Pruitt – Administrator of the Environmental Protection Agency
Wilbur Ross – Secretary of Commerce
Tom Price – Secretary of Health and Human Services
Jeff Sessions – Attorney General
Rex Tillerson – Secretary of State
Withdrawn Nominees – Vincent Viola, Andrew Pudzer, Philip Bilden and Todd Ricketts
[i] Ted Barrett, Schumer Warns GOP Against Jamming Trump Nominees Through Senate, CNN, Jan. 18, 2017, available at http://www.cnn.com/2017/01/18/politics/chuck-schumer-donald-trump-nominees-senate/.
[ii] Caroline Chambers, Trump’s Cabinet Lags Disclosing Conflicts – Just Like Their New Boss, The Hill, Jan. 9, 2017, available at http://thehill.com/blogs/pundits-blog/the-administration/313307-trumps-cabinet-picks-lag-on-disclosing-conflicts-just. By comparison, during the Obama transition, the seven nominees confirmed on January 20, 2009 had submitted OGE certified ethics agreements and financial disclosure forms to the Senate between six days and three weeks in advance of their Senate confirmation hearings. Id.
[iii] Letter from OGE Director Walter M. Shaub, Jr. to Sens. Charles E. Schumer and Elizabeth Warren, Jan. 6, 2017, available at https://www.oge.gov/web/oge.nsf/All%20Documents/0437F8D4CF89B7B7852580A30066A775/$FILE/Response%20to%20Senators%20Schumer%20and%20Warren%20(Schumer).pdf?open.
[v] Id. (asserting OGE was not aware of any occasion in the four decades since its establishment of a Senate committee holding a confirmation hearing before the nominee had completed the ethics review process).
[vi] See https://www.senate.gov/legislative/nominations.htm. This figure excludes career ambassadors, multiple nominations such as those for international financial institutions, and three nominations that have been withdrawn.
[vii] Susan Page, Ronald Reagan to Donald Trump: Comparing first 100 days of last six presidents, USA Today, April 23, 2017, available at https://www.usatoday.com/story/news/politics/2017/04/23/ronald-reagan-donald-trump-first-100-days-compared-bush-obama/100036750/. For example, in the first 100 days, President Barack Obama had formally submitted 190 nominations and had 69 nominees confirmed; President George W. Bush had formally submitted 85 nominations and had 35 nominees confirmed; President Bill Clinton had formally submitted 176 nominations and had 49 nominees confirmed; President George H.W. Bush had formally submitted 95 nominations and had 50 nominees confirmed; and President Ronald Reagan had formally submitted 128 nominations and had 80 nominees confirmed.
[viii] Jennifer Steinhauer and Steve Eder, Republicans, Facing Pressure, Delay Hearings for 4 Trump Cabinet Nominees, New York Times, Jan. 10, 2017, available at https://www.nytimes.com/2017/01/10/us/politics/donald-trump-cabinet-nominations.html.