United States: President Trump's Executive Order Implements Campaign Lobbying Pledge

Christopher DeLacy is a Partner in the Washington D.C. office

On Jan. 28, 2017, President Trump signed an ethics executive order (EO) repealing former President Obama's ethics EO for executive branch officials and implementing new, similar restrictions. 

The EO makes good on a campaign pledge and includes the following key provisions:

  • imposes a five year ban on executive branch political appointees engaging in lobbying activities with respect their former agency
  • prohibits executive branch political appointees from engaging in lobbying activities with respect to political appointees across the entire executive branch for the remainder of the Trump Administration
  • imposes a lifetime ban on executive branch political appointees representing foreign governments and political parties
  • prohibits executive branch appointees from accepting gifts from lobbyists or lobbying organizations

Most of the definitions contained in the Trump EO are derived from the Lobbying Disclosure Act of 1995, as amended, or the Foreign Agents Registration Act of 1938, as amended.  In addition, the EO cites to the post-employment restrictions contained in the U.S. Code and shares several common provisions with the Obama EO. Keep in mind the post-employment restrictions contained in the U.S. Code apply in addition to and regardless of any Executive Order. An overview of the interplay between the U.S. Code and the Obama EO, as well as an overview of legislative branch post-employment restrictions can be found here.   

Applicability

For purposes of the this EO, the political appointees covered are:

  • Presidential and Vice Presidential nominees
  • Non-career appointees in the Senior Executive Service (SES)
  • Schedule-C policy positions

The EO does not apply to the Senior Foreign Service, uniformed service commissioned officers, career executive branch employees, or the legislative or judicial branches. There are approximately 4,000 political appointee positions within the executive branch.  The Government Accountability Office (GAO) plum book is a good source of information on these positions. 

Implementation

The EO requires the head of each executive agency and the Office of Government Ethics (OGE) to implement the EO. On the issue of gifts from lobbyists, the EO directs OGE to initiate a rulemaking to apply the gift ban beyond political appointees to cover all employees of the executive branch. The OGE had previously considered expanding the Obama EO gift ban to all executive branch employees during the Obama Administration, but never completed the rulemaking.

Enforcement

The EO empowers the Attorney General to utilize debarment proceedings and/or seeking declaratory, injunctive or monetary relief enforce the EO. In addition, if an agency determines that a former executive branch political appointee has violated the EO, the agency may ban the former appointee from lobbying the agency for an additional five years. 

Trump EO vs. Obama EO

The Trump EO is very similar to the Obama EO, with a few exceptions:

  • The Trump EO post-employment restriction is more restrictive than the Obama EO because the 5-year ban extends beyond the end of the Trump Administration.  Most of the Obama EO post-employment restrictions ended at the conclusion of the Obama Administration on Jan. 20, 2017. Of course, it is possible President Trump's successor will rescind the Trump EO and it is unclear whether his successor will choose to enforce the bans contained in the Trump EO after the Trump Administration has concluded. 
  • The Trump EO lifetime ban on representing foreign governments and political parties is more restrictive than the Obama EO, which contained no similar ban.  Again, it is possible President Trump's successor will rescind the Trump EO and it is unclear whether his successor will choose to enforce the bans contained in the Trump EO after the Trump Administration has concluded. 
  • The Trump EO appears to be more restrictive than the Obama EO on the issue of behind the scenes lobbying by former executive branch political appointees.  The Trump EO lobbying restrictions key off of the term "lobbying activities" as defined by the LDA while the Obama EO lobbying restrictions key off of status as a "registered lobbyist" under the LDA.  A "registered lobbyist" under the LDA is an individual who spends at least at least 20% of their time on lobbying activities.  The term lobbying activities is defined in the LDA to include lobbying contacts and "efforts in support of such contacts, including preparation and planning activities, research and other background work that is intending, at the time is it is performed, for use in contacts, and coordination of the lobbying activities of others."  The result of this distinction is that the Trump EO covers behind the scenes advice regarding lobbying that does not require registration as a lobbyist.  The Obama EO did not prohibit providing this type of advice so long as the 20% threshold was not crossed.  However, the Trump EO does provide some significant new exceptions to the term lobbying activities, as is discussed below.    
  • The Trump EO is less restrictive than the Obama EO in that it provides additional exceptions to the definition of "lobbying activities" by adding communications or appearances regarding an agency "judicial proceeding, a criminal or civil law enforcement inquiry, investigation, or proceeding, or any agency process for rulemaking, adjudication, or licensing proceeding as defined and governed by the Administrative Procedure Act..."  The Obama EO did not contain similar exceptions, although there is some overlap with the exceptions to the definition of "lobbying contact" contained on the LDA which would have, by extension, applied to the Obama EO.  However, the LDA exceptions are narrower than the Trump EO exceptions: 
  • Under the LDA, the term "lobbying contact" does not include a communication that is:
    • required by subpoena, civil investigative demand, or otherwise compelled by statute, regulation, or other action of the Congress or an agency
    • made in response to a notice in the Federal Register, Commerce Business Daily, or other similar publication soliciting communications from the public and directed to the agency official specifically designated in the notice to receive such communications
    • not possible to report without disclosing information, the unauthorized disclosure of which is prohibited by law
    • made to an official in an agency with regard to:
      • a judicial proceeding or a criminal or civil law enforcement inquiry, investigation, or proceeding
      • a filing or proceeding that that Government is specifically required by statute or regulation to maintain or conduct on a confidential basis
    • made in compliance with written agency procedures regarding an adjudication conducted by the agency under section 554 of title 5, United States Code or substantially similar provisions
    • a written comment filed in the course of a public proceeding or any other communication that is made on the record in a public proceeding
    • a petition for agency action made in writing and required to be a matter of public record pursuant to established agency procedures. 
  • The Trump EO is less restrictive than the Obama EO on the 18 U.S.C. § 207(c) communication or appearance ban as it reduces the ban from two years to one year.  The basis for this ban is the federal criminal code and its application is broader than lobbying or lobbying activities – it bars any communication or appearance before the former agency.  The Trump EO now aligns with the statute. 

Otherwise, the Trump EO is identical or similar to the Obama EO:

  • The Trump EO gift ban is identical to the Obama EO gift ban.
  • The Trump EO 2-year revolving door bans for all appointees and lobbyists entering the government are identical to the Obama EO bans.  Provisions in both EOs ban appointees from working on particular matters involving former employer or clients for two years. 
  • The Trump EO is identical to the Obama EO in that neither apply to lobbying Congress.
  • The Trump EO is identical to the Obama EO as to the political appointees that are subject to its provisions. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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