The Watchdog Report

Attention, Senators… Our Executive Branch Shouldn’t Be “Undocumented”

During last night’s midnight shift Trump Watchdogs started to chase down more information about Trump’s Cabinet nominee Betsy DeVos, who was granted a Senate confirmation hearing earlier this week. Like much of America we’re disturbed by her statements and actions involving public/private education — but even more concerning is that Senate granted her a confirmation hearing despite missing ethics papers. You cannot effectively assess a job candidate when you lack highly relevant information. We’re concerned about her billionaire family’s integral ties to Blackwater (now renamed), healthcare, Russian banking and more.

Along the way to a DeVos background check, we took a detour. Learning more about the Office of Government Ethics (OGE), we were distracted by visions of a frightening new pathway under construction… Down that path, the Office of Government Ethics is rendered a farce – a puppet of the executive branch – if it still stands at all. As emails obtained through the Freedom of Information Act suggest, the Trump transition team already treats the executive ethics agency with disdain. How far will America let this go?

Without the Office of Government Ethics, the US Senate has no protocol to review potential conflicts of interest between nominees and their proposed Cabinet positions. These nominees are in an important sense “undocumented.”

How To Form A Presidential Cabinet: The Normal Protocol

The Office of Government Ethics helps guard the public against conflicts of interest between members of the executive branch and the positions they hold. One of its main roles is examining the financial records of executive branch workers. Trump has broken protocol by having his executive branch nominees assessed by Senate without first providing letters about their finances from the OGE.

What is a Presidential Cabinet, and how does it normally form? The 15 members of the executive Cabinet serve as chief policy advisers to the President. Many of the Cabinet positions include leadership over federal departments such as the Department of Education. (Normally, therefore, each nominee has expert knowledge of and experience with their area of charge.) Each Cabinet member is nominated by the President or President-Elect and approved by the Senate after a review process. Senate approval in 2017 requires a simple majority vote.

The Senate review process involves hearings. It also involves Senators’ review of an FBI background check and a letter from the Office of Government Ethics (OGE).

The OGE letter could outline potential conflicts of interest between the nominee and their proposed Cabinet position. This would be based partly on a review of “ethics papers” involving their finances. Title I of law governing the OGE gives it power to require financial disclosure forms including:

• sources and amounts of income, gifts and reimbursements
• the identity and approximate value of property held and liabilities owed
• transactions in property, commodities, and securities
• financial interests of a spouse and dependent(s)

A review of these disclosures must be made available to the public shortly after submission to the OGE. Furthermore, the Attorney General of the US is required to follow up on accusations against Cabinet nominees and can press charges if information appears to be fraudulent.

Historically the US President has shown respect for the OGE’s responsibilities. He has ensured that long before the date of scheduled confirmation hearings arrives, nominees have supplied the OGE with tax records and other paperwork for its conflicts-of-interest investigations. Mitch McConnell in 2008 invoked this protocol when he requested in writing that all of President Obama’s nominees have their OGE letters submitted with time for review before hearings would proceed.

The usual Cabinet confirmation process (first the FBI and OGE reviews, then Senate hearings) saves the Senate’s resources from being spent on a candidate who might have conflicts of interest. It’s also best for transparency and democracy because it gives senators more insight into the nominee. Information in an ethics letter could influence the content of confirmation hearings.

But in 2017 Mitch McConnell accepts different standards, as do his party members. His party is now the Senate majority with 52 senators to the Democrats’ 48.

How To Form A Presidential Cabinet: The New “Ethics Later” Protocol

On January 6 the Director of Office Government Ethics, Walter Shaub, sent a somber letter to senators. He wrote, “As the OGE’s Director, the announced hearing schedule for several nominees who have not completed the ethics review process is of great concern to me.” He emphasized that ethical conflicts could be unknown or unresolved before the hearings began. Shaub continued, “I am not aware of any occasion in the four decades since the OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process.”

Two weeks later the OGE had yet to receive several of the nominees’ paperwork. Nonetheless Senate proceeded with confirmation hearings. Given the Republicans’ majority status in Senate, and their tendency to vote along party lines, we envision the confirmation of nominees who lack ethics clearance or are “undocumented” in terms of conflicts-of-interest.

Republican Senator Lamar Alexander this week characterized the absence of ethics paperwork as a trivial concern about “process.” As he opened a Senate committee meeting for the confirmation of Betsy DeVos, who still lacks an OGE review letter, he stated:

“We will have a letter from that office… which will be an agreement between Mrs. DeVos and that office on how to deal with any conflicts of interest before we vote in committee on her nomination.”

Watchdogs for democracy aren’t assuaged. After all, Trump’s White House Chief of Staff literally threatened the OGE Director in a moment that makes one think of the mafia.

The Trump Cabinet is already topsy-turvy. It’s like a kitchen cabinet in a Dr. Seuss house. With ethics oversight out the door, our house of democracy could all fall down.

Can Trump Oust the Executive Ethics Director? Yes, With Congressional Support

More and more, Trump Watchdogs detect the outlines of a web that might choke American democracy. Trump Cabinet nominees arrive from big oil. Big healthcare. Privatization of schooling. Trump even seems to have leverage with the FBI.

A main obstacle to Trump’s free reign is the Office of Government Ethics. The agency was created in 1978, mostly in response to Watergate, to protect America against conflicts of interest in the executive branch.

The Director of OGE is appointed by the President following Senate confirmation. He or she serves a five-year term (no limit), so there is overlap over presidential terms. The current director Walter Shaub took office in January 2013, meaning he’ll likely be replaced in January 2018… and since the next round of Senate elections isn’t until November 2018, it seems that Trump has a trump card indeed.

There’s another card up Trump’s sleeve too: As Chaffetz noted in a letter to Shaub, the office itself is subject to congressional review. The OGE could be denied funding.

Contact Your Senators

This is our basic message to senators regarding the information collection above:

Rushing Trump’s nominees through hearings without background checks is irresponsible governance. Please behave responsibly. You do not yet have enough information to understand what you are risking. Take the time to fully investigate Donald Trump’s recommendations for Cabinet. Step up to your duty.

You can send your own message by phone, mail or email. The contact info for all US senators is posted at senate.gov/general/contact_information/senators_cfm.cfm.

You can also urge support for the Presidential Conflicts of Interests Act of 2017. This legislation has been introduced to both houses of Congress.