Ethics chief: 'No such thing as retroactive waiver'

Friday, June 2nd, 2017 

Ethics Watch

Reporter Reis Thebault is following the Trump administration's ethics policies and conflicts for the Investigative Reporting Workshop.

President Trump is allowing at least 16 White House staffers — ex-lobbyists and former private-sector employees — to handle issues they may have once lobbied for or against, and to communicate with their old employers and colleagues, according to records released late Wednesday night. 

These records, known as “ethics waivers,” allow White House employees to disregard parts of the administration’s own ethics executive order, which may have prevented them from handling matters that would have affected former clients or employers. The 16 specific exemptions are four times the number that the Obama White House granted in its first four months.

But for several government watchdog groups, it's not the number of waivers that is most concerning, but the types of waivers granted — one of which may point to a violation of federal ethics rules. The Trump White House issued a blanket, retroactive waiver that allows top aide Steve Bannon to continue to communicate with Breitbart, the far-right media organization he used to run.

The undated waiver applies to all White House staff and all news organizations — it does not mention Bannon or Breitbart by name — but would absolve him of any ethics violations he may have committed in talking to his former employer. The only problem: a "retroactive" exemption is not legal. 

“There is no such thing as a retroactive waiver,” said Walter M. Shaub Jr., the director of the Office of Government Ethics, in a statement. “If you need a retroactive waiver, you have violated a rule.”

The possible ethics violation was first reported by The New York Times. 

The idea of issuing a waiver after a potential violation has already occurred undermines the very idea of an ethics policy, said Jordan Libowitz, spokesperson at Citizens for Responsibility and Ethics in Washington. 

“They serve as an admission of guilt and absolution of sin,” he said. "They’re basically saying, 'OK, you broke the rules and that’s fine.' That’s not the purpose of waiver."

The ethics office reiterated this point in a five-page memo that then-general counsel Don W. Fox wrote in 2010, during the Obama Administration. 

“The waiver must be granted prior to the employee engaging in otherwise prohibited conduct,” Fox wrote, underlining prior to for emphasis. “It is axiomatic that any of these waivers is a prospective grant of permission, not a retrospective grant of forgiveness … OGE does not consider retroactive waivers to be valid.”

So-called "blanket waivers," in general, are also unprecedented, Libowitz said, and the White House issued two of these, one that applied to all appointees in the Executive Office of the president, and another that applied to "all commissioned officers in the White House Office" (this is the same waiver that applied to Bannon).

"It’s troubling because when you see waivers, they’re usually for a specific person, for a specific reason," Libowitz said. "[The Trump Administration] wrote the pledge and then exempted the entire executive office of the president from following it. Why do you even have that in the ethics pledge in the first place?"

President Obama issued 17 ethics waivers to White House staffers over eight years in office, but each was assigned to a specific person and came with a letter detailing why the individual deserved such an exemption. He never issued a blanket waiver.

Trump’s ethics executive order gives his administration the “drain-the-swamp” veneer that he campaigned on, but waivers such as these allow key staffers to sidestep those rules, said Craig Holman, a government affairs lobbyist at Public Citizen, a nonprofit that fights government corruption.

“They just issue a waiver to make the ethics executive order not so inconvenient,” he said. 

Common Cause chief strategist, Stephen Spaulding, said that though the release of the ethics waivers was a step in the right direction, the Trump Administration, which initially refused to disclose the waivers it issued, made the process too difficult.

Following a formal request from the ethics office for waivers issued by the Trump Administration back in April, Mick Mulvaney, Trump’s budget director, requested that the inquiry be halted, citing the scope of the agency’s authority.  

In late May, after outcry from Congress and the public, the Trump Administration relented and agreed to disclose records on the ethics waivers it had granted.

“It shouldn’t have been this difficult,” Spaulding said.

On Friday, in his daily briefing, White House Press Secretary Sean Spicer said that President Trump made the rules, so he’s the one who can decide when to waive them. 

“Remember, this didn’t have to do with the law or with regulations, this had to do with the president’s pledge, his ethics pledge,” Spicer said. “He is the ultimate decider on that.”

These waivers — granted only to White House staff members — are the first of a larger batch of records which, according to the ethics office, will be released June 7, and will show how many ethics waivers have been granted to the entire executive branch.

Jerrel Floyd contributed to this report.

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