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Analysis

The White House Isn’t Doing Its Staff Any Favors By Not Setting Limits on Who Can Pay Their Legal Fees

News that the Office of Government Ethics moved to allow anonymous donors to cover legal fees for White House employees raises concerns from ethics advocates.

September 15, 2017

Cross-posted from Huff­Post

On Wednes­day Politico repor­ted that the Office of Govern­ment Ethics (OGE) had quietly moved to allow White House employ­ees to start accept­ing anonym­ous contri­bu­tions from lobby­ists and others to cover legal fees connec­ted to the Russia invest­ig­a­tion. Ethics advoc­ates were predict­ably aghast. There is no love lost between the Admin­is­tra­tion and this partic­u­lar set of crit­ics. But this time it should heed their warn­ings, if for no other reason than to protect its own staff.

This entire contro­versy arises from a decades-old OGE ruling that permit­ted govern­ment employ­ees embroiled in Clin­ton-era scan­dals to set up private legal defense funds. OGE placed no limits on who might give to such funds, although it did recom­mend that they be admin­istered by inde­pend­ent third parties, who should keep donors anonym­ous “so that the employee does not know who the paymas­ters are.”

While this guid­ance may have been well-inten­tioned, OGE almost imme­di­ately real­ized its flaws. The idea of private donors foot­ing the legal bills for govern­ment offi­cials is inher­ently prob­lem­atic, although any outrage should be tempered by the real­iz­a­tion that even a low-level employee who is simply called as a witness can easily rack up tens of thou­sands of dollars in personal legal fees. In the very least, however, certain types of donors, like registered lobby­ists and foreign nation­als, prob­ably should not be allowed to give.

Moreover, it simply is not cred­ible to think that the person bene­fit­ing from a legal defense fund will not learn the names of at least some of her bene­fact­ors, espe­cially when those donors want to influ­ence govern­ment policy. They will remain “anonym­ous” only to the public, depriving the rest of us of crit­ical inform­a­tion about who may be trying to ingra­ti­ate them­selves with power­ful offi­cials.

Although OGE offi­cials have long recog­nized such prob­lems, and tailored their advice accord­ingly, they never got around to revis­ing their actual ruling. Last year, OGE’s then-Director instruc­ted staff to at least add a prom­in­ent disclaimer to the docu­ment stat­ing that “some state­ments in this opin­ion are no longer consist­ent with current OGE inter­pret­a­tion and prac­tice.” But his acting replace­ment, a Trump Admin­is­tra­tion designee, removed this state­ment, and replaced it with one simply aver­ring that OGE’s “primary find­ing with respect to the limited applic­ab­il­ity” of federal law to legal defense funds had not changed, but that “each analysis is very fact-specific.”

This may seem like an innoc­u­ous revi­sion, but it raises troub­ling ques­tions. Is OGE about to green-light infu­sions of secret cash from any source to pay offi­cials’ legal bills? This money could come from lobby­ists, govern­ment contract­ors, or even foreign govern­ments seek­ing to influ­ence the course of Special Coun­sel Bob Mueller’s invest­ig­a­tion. All without any account­ab­il­ity to the Amer­ican people. It does­n’t take an ethics expert to see why this is a prob­lem.

The White House now says its actions have been misin­ter­preted, and that it actu­ally wants to find a way to make sure that dona­tions are disclosed and don’t come from prob­lem­atic sources. Let’s hope this is true —not only for the sake of the coun­try, but White House staff them­selves.

The real­ity is that, notwith­stand­ing anything OGE says, federal law contains broad prohib­i­tions against bribery, conflicts of interest, and similar miscon­duct. Any govern­ment offi­cial or employee who uses her posi­tion to bene­fit a donor to her legal defense fund could run afoul of these provi­sions, and poten­tially invite prosec­u­tion.

To be fair, the law is a bit unsettled in this area, partic­u­larly the ques­tion of what consti­tutes an illegal quid pro quo under bribery and related stat­utes. Last year, in McDon­nell v. United States, a unan­im­ous Supreme Court over­turned former Virginia Governor Bob McDon­nell’s convic­tion for accept­ing hundreds of thou­sands of dollars in gifts from a purveyor of diet­ary supple­ments, because the govern­ment failed to prove that McDon­nell had actu­ally done anything offi­cial in return. McDon­nell has led to the reversal of at least one other high-profile corrup­tion convic­tion, that of former New York Assembly Speaker Shel­don Silver­—al­though he may yet be retried. The long-term impact of the Court’s decision remains to be seen.

What we do know from that decision and others like it, however, is that govern­ment offi­cials are ill-served by the absence of clear rules govern­ing the accept­ance of personal gifts and other bene­fits. It is human nature to accept a gift when it is offered, and to feel grat­it­ude towards the giver. When you are a public offi­cial, and your bene­factor wants some­thing from the govern­ment in return, the pres­sure to oblige may be intense. Having strong safe­guards at the outset—which neither Virginia nor New York had—helps to keep such situ­ations from arising in the first place.

While Bob McDon­nell and Shel­don Silver may never go to prison, it is still a relat­ively safe bet that both men wish they had never done the things that led them to be prosec­uted, and that left their repu­ta­tions in tatters. White House offi­cials strug­gling to pay legal bills may find them­selves in a similar situ­ation. The Admin­is­tra­tion should not set its own people up to make the same mistakes.