In the previous post, I referred to two executive orders related to ethics requirements imposed on the Obama and Trump White House staffs and suggested that one–Executive Order 13490 signed by President Barack Obama on January 21, 2001–tightened rules regarding conflicts of interest.  The other–Executive Order 13770 signed by Donald Trump on January 28, 2017–draws heavily on the Obama order with one major difference, provisions for waiving the restrictions on past and future lobbying.

Below are the waiver provisions of the respective executive orders.

Section 3, Waiver in Obama’s executive order reads as follows:

(a)  The Director of the Office of Management and Budget, or his or her designee, in consultation with the Counsel to the President or his or her designee, may grant to any current or former appointee a written waiver of any restrictions contained in the pledge signed by such appointee if, and to the extent that, the Director of the Office of Management and Budget, or his or her designee, certifies in writing (i) that the literal application of the restriction is inconsistent with the purposes of the restriction, or (ii) that it is in the public interest to grant the waiver. A waiver shall take effect when the certification is signed by the Director of the Office of Management and Budget or his or her designee.

(b)  The public interest shall include, but not be limited to, exigent circumstances relating to national security or to the economy. De minimis contact with an executive agency shall be cause for a waiver of the restrictions contained in paragraph 3 of the pledge.

Section 3, Waiver of Trump’s executive order reads as follows:

(a) The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.

(b) A waiver shall take effect when the certification is signed by the President or his designee.

(c) A copy of the waiver certification shall be furnished to the person covered by the waiver and provided to the head of the agency in which that person is or was appointed to serve.

Even the dummy in Elon Musk’s Mars bound Tesla, much less a rocket scientist, can easily discern the difference.  The Obama order involves a process headed by the director of the Office of Management and Budget (OMB) in consultation with the White House legal counsel.  (Just a reminder, the White House legal counsel is not the president’s personal attorney.  He/she takes an oath to defend and protect the Constitution and advises the president of the legal implications of executive actions.)  In his  “Only I can fix this” management style as originally voiced in his acceptance speech at the Republican National Convention, Trump becomes the sole determiner of the appropriateness of an ethics waiver.

So, that’s the legal comparison, but a true understanding of how this actually works begs an important question.  How many times has a waiver been invoked?  In the Obama case, the answer is 34 over eight years.  And how do we know that?  During the Obama years, there was a listing of approved waivers posted on the president’s official website www.whitehouse.gov.  And to ensure transparency, the name of each waived individual was a link to the memorandum from the White House legal counsel to the OMB director explaining the circumstances and justification for the waiver request.

Unfortunately, we have no exact count for the current administration.  Why?  Because the Trump White House has deleted the ethics waiver information from its website and has offered no other means of direct access.  Through Freedom of Information Act filings, several news outlets have tried to compile a list but none have assembled a complete inventory to date.

However, my attempts to gather such information resulted in an even more disturbing discovery.  Section 1.  The Pledge. of the Trump executive order requires:

Every appointee in every executive agency appointed on or after January 20, 2017, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee.

Assuming Trump’s first National Security Advisor Michael Flynn signed the pledge, one would expect he received a waiver as was the case with Obama’s National Security Advisor General James L. Jones.  And as we now know, Flynn, without a waiver, would have been in violation of the ethics pledge which requires signatories to recuse themselves for a period of two years from deliberations on issues in which they had a previous contractual relationship with any party subject to the deliberations.  Because of his payment for a speech in Russia or consulting fees from Turkey, Flynn, without the waiver, could not participate in any security discussions involving these two nations.

In March 2017, a month after Flynn resigned as national security advisor, The Daily Beast reported he NEVER signed the ethics pledge.  According to White House spokesperson Price Lloyd, “General Flynn never had the opportunity to sign Trump’s ethics pledge, but he plans to abide by its terms.”  But that issue is now moot.  Thanks to Special Counsel Robert Mueller, it is highly unlikely Flynn will be doing any lobbying for the next five years, the time period provided for in the executive order.

This week there was yet another instance of a disturbing pattern where the Trump White House chooses to look the other way when it comes to the vetting of staff.   White House Staff Secretary Rob Porter was denied a permanent security clearance due to a history of domestic violence.   Likewise, Jared Kushner, a year after his appointment to whatever official position he supposedly holds, still does not have a permanent security clearance due to his failure to disclose foreign contacts on his security application.  Considering revelations about his participation in the June 2016 meeting with Russians and his efforts to create a back channel communications with the Kremlin using the Russian embassy as a conduit, his security status seems unlikely to change in the near future.

According to the website Military.com, “An Interim Security clearance (also known as “Interim Security eligibility”) is based on the completion of minimum investigative requirements and granted on a temporary basis, pending the completion of the full investigative requirements for the final secret clearance.”  Which explains why, during yesterday’s White House press briefing, deputy press secretary Raj Shah continuously referred to the “ongoing security clearance process” in relation to Rob Porter’s interim clearance.  If he had not resigned, Rob Porter would have become ineligible to serve in the highly sensitive job of staff secretary the second the FBI issued a final determination of his security status.  The same is probably true of Jared Kushner and who knows how many other members of the White House staff.

So let me add one more example of American EXCEPT-tionalism to my list.  National security is of paramount concern EXCEPT when it applies to the few remaining people on earth who are willing to work for or pledge loyalty to the Parade King.  It appears Trump appointees are more in need of “extreme vetting” than foreigners seeking visas to enter the United States.

For what it’s worth.
Dr. ESP