Note: The Guardian is doing an excellent service to the community with it’s in-depth updates and coverage of the Trump activities and cabinet positions. In addition to the article below stating that the cabinet positions must be delayed, The Guardian provides a complete listing of the present cabinet positions that need Senate confirmation as well as those that don’t along with other valuable information about the confirmation process. Below are some other articles and information about Trump issues you might want to explore:
(1) Click here for the present Trump cabinet appointees
(2) Click here for “What you need to know: Confirming Trump’s cabinet”
(3) Click here for “The key points from Jeff Sessions’ confirmation hearing”
by Norman L Eisen and Richard W Painter
Norman L Eisen & Richard W Painter were Chief
White House Ethics lawyers under
Obama and George W Bush respectively.
January 9, 2017
As the former White House ethics counsels for Presidents Bush and Obama, we were involved in the submission of many presidential nominations to the US Senate for confirmation. We and others worked hard to make sure those nominees’ financial disclosure reports and ethics agreements were finalized and certified by the Office of Government Ethics (OGE) before their hearings, so that the Senate and thus the public could explore any conflicts of interest and how they were addressed. This week’s hearings for the president-elect’s cabinet are flouting that practice, and for that reason, should be postponed.
This point was made clear by Senator Mitch McConnell in a 12 February 2009, letter to the then majority leader Harry Reid, insisting that the “The Office of Government Ethics letter [be] complete and submitted to the committee in time for review and prior to a committee hearing”.
McConnell’s point was important. Short-changing the ethics review process in Congress jeopardizes nominees’ ability to do their jobs if confirmed. The Senate, and all of us, need to know if nominees will, for example, sell investments that create conflicts. If not, will they recuse themselves from certain issues? Will they have so many recusals that they cannot reasonably perform their duties, or will they be running the constant risk of violating the anti-conflicts laws? Those bear criminal penalties, so the danger is a serious one.
Now, in 2017, with more billionaires than ever before being nominated for top jobs in the Trump administration, this argument for thorough review of financial disclosure and ethics agreements is more compelling than ever.
To provide some context, the first step in the ethics review process requires the nominee to submit detailed information on a public financial disclosure report. This is known as the OGE-278, and includes nominees’ employment, outside activities and agreements, as well as financial assets and income information for them, their spouse and dependent children.
This information is then subject to a thorough review by the ethics official for the agency the nominee is joining and by OGE. This review ensures that the OGE-278 contains all necessary information legally required to be disclosed for the purpose of identifying any potential conflicts of interest.
Once any potential conflicts of interest are identified, the nominee memorializes and commits to certain undertakings to resolve conflicts in a written ethics agreement. It is signed by the nominee and agreed to by the agency ethics official and OGE. These ethics undertakings may include divestment, recusal or other measures deemed necessary to resolve conflicts of interest.
The completed OGE-278 and ethics agreement become the basis upon which the agency ethics official and OGE can properly certify the report for completeness and to represent that the nominee has no unresolvable conflicts of interest prior to the scheduled Senate confirmation hearing. The more extensive and complicated a nominee’s financial holdings and assets, the more time and attention is necessarily required to address any potential ethical issues.
Completion of the ethics review process prior to Senate confirmation hearings ensures that all parties have a detailed understanding of the nominee’s commitments prior to taking office, offers full transparency to the Senate, and mitigates the opportunity for undue influence on the independent ethics review process.
Some of President-elect Trump’s nominees have completed this process, but many have not.
For example, as of now, no such ethics certification or representation exists for Betsy DeVos, President-elect Trump’s nominee for secretary of education. While a billionaire should not be held to any higher ethical standard than other nominees, she should not be (nor should she want to be) held to lower ethical standards.
DeVos likely has potential conflicts of interest with respect to education. She reportedly invested in K12 Inc, which manages public for-profit online charter schools, and indirectly invested in an online student lending firm. In 2011, the New York Times chronicled the failings of one of the schools managed by K12 Inc, which had nearly 60% of its students behind grade level in math and 50% behind in reading. Whether and to what extent DeVos and/or her husband still invests in these companies is significant for conflicts of interest purposes.
However, there is no public disclosure of these or other any investments in the information included in her Senate nomination paperwork that has been made publicly available. To the contrary, in the public portion of her Senate paperwork, she did not provide detailed information in response to a request for information regarding business relationships, dealings or financial transactions that would constitute a potential conflict of interest.
In lieu of doing so, she represents that she will consult with the OGE and the agency ethics office to identify potential conflicts of interest and to resolve them in accordance with the terms of an ethics agreement that she will enter into but that apparently has not yet entered into.
The notion that DeVos will be questioned before entering into an ethics agreement and disclosing it along with her financial holdings is absurd. Senators, and all of us, cannot address these and other conflicts without that information. We cannot help but wonder if the fact that she has been a major campaign contributor has led to the unseemly rush to give her a premature hearing. She and her spouse are reported by OpenSecrets to have made $2.7m in donations in the 2016 election cycle, and to have contributed more than $7.7m to federal candidates, committees and parties since 1990.
At this point in 2009, the Obama administration had ensured that its cabinet nominees completed their nomination paperwork, including an OGE-certified 278 and a signed ethics agreement, at least three days in advance of confirmation hearings (and for many over a week in advance). This is the standard to which each new administration should be held if they want to give credibility to the Senate advice and consent process.
So far, most of Trump’s nominees fail this test. To his credit, Rex Tillerson, the president-elect’s nominee for secretary of state, who has an extensive and complicated financial portfolio, completed his paperwork on 3 January in anticipation of a confirmation hearing date of 11 January. If he can do it, the others, including DeVos and other cabinet nominees, can as well.
Don’t blame the delay on OGE. As noted in reporting by Politico and MSNBC, the Trump transition team failed to engage with OGE in a timely fashion notwithstanding extensive efforts on the part of OGE to reach out to the transition team. We appreciate President-elect Trump’s desire to get his leadership team in place as quickly as possible, but it is imperative that OGE be part of that process.
The tone of ethical leadership and conduct is set at the top. The failure of Trump as president-elect to address the conflicts of interest and constitutional problems deriving from his own business interests is a serious problem.
Last week, there was a failed attempt by some congressional Republicans to gut the Office of Congressional Ethics (President-elect Trump rightly dressed them down for that – on Twitter of course – and they quickly backed down). This week the serious and independent work of the Office of Government Ethics appears to be in jeopardy unless the Senate slows down and insists that each nominee take both financial disclosure and ethics agreements seriously.
To preserve the integrity of the ethics review process, we urge Senate leadership to postpone any confirmation hearing unless the nominee’s financial disclosure reports and ethics agreements are finalized in advance.
At a minimum, leadership should guarantee that hearings will be reconvened once this paperwork is submitted, so all members have the full opportunity to examine nominees in person on ethics issues before a committee vote. Only by taking such steps can the senate truly fulfill its constitutional duty to advise and consent.