FILL THE SWAMP
Trump Team Blows Loophole in Its Own Anti-Lobbying Order
A top person at Health and Human Services will push his former clients’ interests so the rules against that don’t apply to him, the White House says.
The Trump administration could’ve chosen not to put a health care lobbyist at the helm of the Department of Health and Human Services. Instead, it appointed one to a top post, then excused him from ethics rules on the grounds that they would impede his new duties.
The White House has exempted Department of Health and Human Services Chief of Staff Lance Leggitt from rules that bar former members of Washington’s influence industry from working on issues that could advance the financial interests of their recent clients—on the grounds that those rules would be too burdensome for such a powerful official.
Leggitt is one of a half dozen administration officials exempted from ethics rules imposed by Trump in January, according to a list of waivers to the rules released by the Office of Government Ethics on Wednesday. Though other officials were excused from portions of those rules, ethics experts say Leggitt’s case illustrates how the Trump administration is eluding its own promises.
Leggitt lobbied HHS and Congress as chair of the Baker Donleson law firm on behalf of medical device vendors and manufacturers, pharmaceutical companies, Medicare billing services, hospitals, and doctors’ trade association.
Now he is deeply involved in administration health care policy, a cornerstone of Trump’s early legislative agenda. Efforts to repeal the Affordable Care Act hinge on significant administrative and regulatory changes to the U.S. health care system, the bulk of which will take place at HHS.
Leggitt’s past industry advocacy was so broad — and his current involvement in Trump administration policymaking so deep — that he will inevitably affect his former clients’ bottom lines, HHS told the White House in April. Ethics rules barring such conduct would therefore prevent him from doing his job and should be waived, the agency said.
"Granting this limited waiver will allow Mr. Leggitt to freely carry out the full responsibilities of his office rather than requiring him to continue to recuse from particular matters on which he lobbied and the specific issue areas in which those particular matters fall," an HHS attorney wrote to White House counsel Don McGahn, who oversees Trump’s ethics rules, in an April memo.
Brendan Fischer, a spokesman for the Campaign Legal Center, an ethics watchdog group, suggested that the circular logic behind Leggitt’s could be used to excuse any potential conflict of interest without invoking any “public interest” justification for doing so.
“This waiver argues that Leggitt needs an exemption from the ethics pledge designed to prevent former lobbyists from working on issues affecting their old clients because it prevents him from working on issues that affect his old clients,” Fischer wrote in an email. “What is really astounding here is that they don’t even try to claim that granting Leggitt a waiver is somehow in the public interest. If the Trump administration is granting waivers to whomever asks for one then his much heralded ethics pledge is effectively meaningless.”
That interpretation mirrored those of other ethics watchdogs, who say the nature of Leggitt’s waiver gives lie to the president’s pledge to “drain the swamp” in Washington and reduce the influence of special interests on the policymaking process.
"President Trump is treating federal ethics rules the way a casino developer treats local zoning ordinances—as a minor inconvenience that can be brushed aside,” wrote Austin Evers, executive director of the group American Oversight, in an emailed statement. “Ethics rules exist to make sure that public servants are working in the public interest, and they become meaningless if the government simply waives the rules rather than following them."
Under similar ethics rules imposed by President Barack Obama, Leggitt would have been barred altogether from seeking or accepting a position at HHS because he had lobbied the agency during the previous two years. Trump did away with that requirement, even as it tightened other portions, such as restrictions on officials lobbying for foreign governments or political parties.
“We generally prohibited lobbyists from working at the agency they lobbied because that is where the concerns are greatest,” Norm Eisen, the Obama administration’s “ethics czar,” told The Daily Beast. “Conveniently, that ban was stripped out of the Trump [executive order], making this kind of appointment easier.”
Eisen, who co-founded the left-leaning watchdog group Citizens for Responsibility and Ethics in Washington, said Trump is undercutting his own ethics rules by granting waivers without detailing the sort of “public interest” justifications that accompanied most Obama-era waivers.
In Leggitt’s case, “there is no showing of the kind of compelling interest that we looked for,” Eisen wrote in an email. “This ill-advised waiver, and the overall Trump waiver landscape, make a mockery of the President's ethics pledge, and of his promise to drain the swamp.”
Trump’s ethics rules, and a pledge to abide by them required of all appointees and nominees, were centerpieces of the president’s campaign promises to reduce corruption and special interest influence in Washington.
“For those who control the levers of power in Washington, and for the global special interests they partner with, our campaign represents an existential threat,” Trump declared late in the campaign.
But his administration has only reluctantly abided by rules put in place to follow through on that pledge. The release of ethics pledge waivers came only after a pointed exchange between the director of the Office of Government Ethics and White House Office of Management and Budget chief Mick Mulvaney, who initially questioned OGE’s authority to request and make publicly available a comprehensive list of those waivers.
The Obama executive order implementing his version of the ethics rules directed OGE to regularly update its website with a list of such waivers. Publicly available tallies of those waivers show it exempted about as many White House officials from the rules in eight years as the Trump White House did in its first five months.
Reporters and watchdog groups have questioned whether even the waivers that the Trump administration has released are exhaustive. The New York Times identified two officials whose past lobbying work would seem to require a waiver, but who have not officially received one. The Daily Beast has identified two other such officials.
But whether or not officials receive waivers to the pledge may be less of a concern than the circumstances under which those waivers are granted, according to Fischer. If the administration is free to disregard the president’s ethics rules simply because it would prefer to place former lobbyists in top administration posts, those rules may not mean much in the first place, as Leggitt’s case shows.
“Trump killed Obama’s incoming revolving door rule, hired a longtime healthcare lobbyist for a top spot at HHS, and then exempted him from many of the remaining ethics rules that applied to lobbyists,” Fischer wrote. “The Leggitt waiver shows that the ethics pledge is hardly legit.”