Another pointless dispute within the Trump administration appears to have been resolved. It was pointless because, one way or another, the information sought by the Government Ethics Office (GEO) – lists of lobbyists given waivers by the White House to work in the Executive Branch –was going to be discovered and reported. With who-knows-how-many former lobbyists showing up at government meetings and signing off on government documents, sooner or later their identities would have been uncovered and reported. In the meantime, this episode, as with many others, illustrates the propensity of the Trump administration toward secrecy regarding the public’s business that these people are supposedly performing.
The dispute is thusly stated. Eight days after taking office, President Trump signed an Executive Order entitled “ETHICS COMMITMENTS BY EXECUTIVE BRANCH APPOINTEES” that, among other things forbids, for 2 years from appointment, participation in Executive Branch activities involving “any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.” EO sec. 6. If an appointee was a registered lobbyist with the 2 years before appointment, the EO also bars participation, for 2 years from appointment, in “any particular matter on which [the appointee] lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls.”
The apparent purpose of this early EO was to show Trump’s commitment to ethics in government and the Executive Branch in particular. However, the broad sweep of the EO is limited by the definitions that apply and create potentially large loopholes. For example, “lobbied” is defined as “to have acted as a registered lobbyist.” EO sec. 2(m). Although “Lobbying activities” has the same meaning as that term has in the Lobbying Disclosure Act,” the EO excludes activities such as “communicating or appearing with regard to: a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act, as amended, 5 U.S.C. 551 et seq.” EO sec. 2(n). Why such exclusions were necessary is something of a mystery since the Lobbying Disclosure Act, 2 USC sec. 1601, itself contains similar exclusions. Restating those exclusions may be presumed to have had some purpose other than confusion, but, again, this is not clear. In any case they exclude from the EO lobbyists who were hired to engage in activities on behalf of entities that may come before the Executive Branch, including the White House itself, on those same issues.
Moreover, the Lobbying Disclosure Act contains this exception: “The term “lobbyist” means, in English, someone retained to engage is “more than one lobbying contact” but not including “an individual whose lobbying activities constitute less than 20 percent of the time engaged in the services provided by such individual to that client over a 3-month period.” So, again in English, that means that a “lobbyist” is not subject to the EO at all if work for a particular client represented less than 20 percent of the total time devoted to that client’s interests during any quarterly reporting period, a test that could easily be met by a multitude of true full-time lobbyists with many clients. And, obviously, if one is not a “lobbyist,” there is no need to register as one under the Disclosure Act and there is no bar to working for the White House or one of the Executive Departments on any issue. This seems to leave a gaping hole for conflicts of interest in appearance if not in reality.
On top of those loopholes, the EO itself contains a formal waiver provision enabling “The President or his designee” to “grant to any person a waiver of any restrictions” otherwise contained in the EO. It was those waivers that the GEO wanted to see and that for some time the White House refused to disclose. After exchanges of challenging letters between the White House and GEO, the White House relented.
The Obama administration routinely released waiver information for similar actions from a restrictive policy on hiring of former lobbyists for Executive Branch work, but, for reasons that defy understanding, the Trump administration initially declined to follow suit. The objection to the jurisdiction of GEO seems absurd on its face and a needless resistance to transparency, another self-inflicted wound, in keeping with a general tendency of this administration to work in the shadows. And another reason for the electorate to distrust the motives of Trump and his enablers.