On January 28, 2017, US President Donald Trump issued an executive order titled “Ethics Commitments by Executive Branch Employees,” which requires every person appointed by the president or vice president to a full-time position to sign an ethics pledge. The new pledge limits, among other things, the lobbying and other activities of executive branch appointees after they leave government service. The new pledge contains some of the same restrictions put in place by former President Barack Obama in 2009 but adds some new limits and removes or modifies others.
What’s the Same
Like executive branch appointees during the Obama administration, those serving in the Trump administration are subject to the following restrictions:
- Revolving Door Ban on the Way In: An appointee cannot participate in any particular matter involving specific parties that directly and substantially relates to the appointee’s former employer or former clients for two years after entering government service.
- Lobbyist Gift Ban: Appointees cannot accept gifts from lobbyists registered under the Lobbying Disclosure Act.
- Hiring Commitment: Any hiring decisions made by appointees must be based on the qualifications, competence and experience of candidates for that position.
Appointees of the Trump administration must also adhere to two restrictions that did not apply during the Obama administration:
- Five-Year Lobbying Ban: After leaving government service, a Trump appointee cannot lobby his or her former government agency. The executive order generally uses the same definition of lobbying as that in the federal Lobbying Disclosure Act (“LDA”), which includes both direct lobbying contacts and efforts in support of those contacts (e.g., preparing and planning the lobbying contacts made by oneself or others). Notably, however, the executive order includes an exception for communications and appearances related to “any agency process for rulemaking, adjudication, or licensing.”
- Foreign Government Representation Ban: An appointee that has left government service is permanently banned from engaging in any activity for foreign governments or foreign political parties that would require registration with the Department of Justice under the Foreign Agents Registration Act (“FARA”). Broadly speaking, FARA requires registration for activities done on behalf of a foreign entity that seeks to influence US government policies or US public opinion. FARA registration is not required for activities of a purely commercial nature. As such, Trump appointees who leave the government may engage in business transactions with and on behalf of foreign entities. This ban also will not capture lobbying done for foreign-owned businesses, as FARA exempts from registration any person who lobbies on behalf of a foreign business interest and who is registered as a lobbyist under the LDA.
The executive order modified certain restrictions that were also addressed by the Obama administration:
- Shorter “Cooling off” Period for Agency Communications: A Trump appointee cannot communicate with his or her former government agency for one year after leaving government service. The one-year “cooling off period” follows statutory restrictions under 18 U.S.C. 207(c) that already apply to senior employees. The Obama administration’s ethics pledge had extended this period to two years.
- Different Definition of Post-Government Lobbying: Appointees leaving the Trump administration cannot engage in lobbying activities with respect to certain executive branch officials for the remainder of the administration. As noted above, the executive order adopts the LDA definition of lobbying activities but provides an exception for communications and appearances related to “any agency process for rulemaking, adjudication, or licensing.” The Obama administration had imposed a similar prohibition but defined lobbying more narrowly, i.e., acting as a registered lobbyist. As such, former Obama officials could lobby certain executive branch officials so long as their efforts did not trigger registration under the LDA.
- Fewer Restrictions on Lobbyists Entering Government: During the Obama administration, a registered lobbyist was prohibited from seeking or accepting employment at any agency which he or she had lobbied in the preceding two years. The executive order issued by President Trump does not include this restriction. In the Trump administration, a registered lobbyist may seek and accept employment with a government agency that he or she had previously lobbied, but the former lobbyist may not participate in any particular matter involving specific parties that directly and substantially relates to his or her former clients.
- No Standards for Granting Waivers: The Obama administration’s executive order on ethics set forth specific standards by which a waiver from its requirements could be granted. These waivers were published in an annual report by the Office of Government Ethics. While the executive order issued by President Trump allows waivers to be granted by the president or his designee, the order does not specify the standards by which those requests will be considered nor does the order commit to publishing the list of waivers granted.
The executive order requires each appointee to sign the pledge as a condition, and in consideration of, his or her employment. The order purports to contractually bind the appointee, and any breach may be pursued by the Department of Justice through civil litigation.
Prior attempts to curtail the revolving door have been challenged. The executive order issued by President Obama was challenged under the First Amendment, which protects freedom of speech and the right to petition the government. The Obama administration revised and narrowed President Obama’s order during his terms in response to an opinion by the US Court of Appeals for the DC Circuit, which held there was a viable First Amendment claim brought by lobbyists.
Companies that lobby or do business with the federal government, or that typically draw employees from the federal government, should take particular note of the order’s restrictions.