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.