THE WHITE HOUSE’S AVERSION TO ETHICAL SCRUTINY
It takes a serious commitment to incompetence and deception to spawn as many ethical and legal concerns as the Trump administration has in just four months. The misbehavior by White House officials in the past few days has been impressive even by Trumpian standards. They’ve tried to raise doubts about the independence of the special counsel investigating the Trump campaign’s ties to Russia. And they’ve stonewalled efforts by the Office of Government Ethics to identify conflicts of interest in the administration.
Take first the ethics issue. In January, Donald Trump signed an executive order banning appointees who had been lobbyists or lawyers from working on policy or regulatory issues they were once paid to influence, for two years. Unfortunately, that order allowed the president or a designee to secretly waive these restrictions. In the Obama administration, any such waivers were made public, with a detailed explanation. Otherwise, it would be impossible for the public to know who was violating the lobbying rules, and who received permission to ignore them.
Confronted with multiple examples of former lobbyists working on the exact issues they once lobbied on, the ethics office last month directed the White House and federal agencies to provide, by June 1, copies of any waivers.
In a letter to Walter Shaub Jr., who directs the office, and to ethics officers in federal agencies, the White House challenged Shaub’s legal authority to make the request. The letter came from Mick Mulvaney, director of the Office of Management and Budget, which has no jurisdiction over the government ethics program. His effort centers on whether the White House is a “federal agency,” subject to ethics rules. But Mulvaney went further, maintaining, contrary to the Ethics in Government Act, that the ethics office has no authority to demand information on waivers from federal agencies. Since his office helps control the agencies’ funding, some interpreted that as an effort to intimidate them into keeping their waivers secret, too.
The ethics office was created after Watergate. A White House has never actively worked against it in this way. Shaub, whose five-year term ends in January, refuses to back down. He told agency ethics officers that contrary to what the White House says, they are legally required to provide details of the waivers to his office. Late on Monday, he sent a rocket of a letter to Mulvaney. His office’s job, he wrote, is “to lead the executive branch ethics program with independence, free from political pressure. 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.”
So will the White House bend? Or will Trump fire another independent official for excess loyalty to the law?
Meanwhile, back at the White House, Trump’s legal team sought legal cover to stymie Robert Mueller III, special counsel in the Russia investigation, by claiming Mueller needed the same type of waiver that the White House has been trying to hide. It said that because he worked at WilmerHale, the law firm that represents two major figures in the inquiry — Jared Kushner, Trump’s son-in-law and senior adviser, and Paul Manafort, his former campaign chairman — he could not investigate them.
Trump’s own Justice Department disagreed, saying on Tuesday that its ethics experts “determined that Mr. Mueller’s participation in the matters assigned to him is appropriate.” Mueller did not represent Kushner or Manafort while at WilmerHale, a firm that employs 300 lawyers in Washington and 1,200 globally. Nor was Mueller privy to any confidential information about their cases, a state of affairs that satisfies both District of Columbia and federal rules.
Why would White House lawyers pursue such a baseless line of attack? “They’re trying to use the ethics rules to fire a special prosecutor,” Richard Painter, chief ethics lawyer in the George W. Bush White House, said. “That’s insane.” If the Bush administration had told him to concoct legal justifications for evading ethics rules and legal inquiries in this way, Painter said, “I’d have quit.”