Republican Donald Trump delivers remarks at the Shale Insight energy conference in Pittsburgh, Pennsylvania, U.S. September 22, 2016. (Reuters/Jonathan Ernst)
With questions swirling around potential conflicts of interest for lobbyists and family members on Donald Trump’s transition team, ethics experts say it’s crucial that the team building the new administration have a formal code of principles.
But here’s a little understood fact about presidential transitions: They don’t have to follow a code of ethics unless they want to, and even if they do, they come up with the terms themselves. In a break with tradition, the campaign — so far — has not produced one.
While executive branch employees are subject to a variety of ethics rules, those rules have no power over administrations-in-waiting, which exist in legal limbo. All presidents-elect in modern history have developed codes of conduct, though.
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An ethics policy could be the first order of business for Don McGahn II, the former chairman of the Federal Election Commission who is general counsel for Trump’s transition team.
So far, it has not produced a code of ethics. The Trump campaign and McGahn did not respond to a request for comment.
Let’s recall the ethics policy for President Obama’s transition in 2008, touted as the most robust ever to apply to a president-elect’s team.
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The 13 rules, covering three pages, prohibited transition personnel from involvement in matters related to a financial interest they had or on which they had lobbied in the last year. Current lobbyists had to abandon any outside work on matters related to their transition portfolio for the duration of the effort, plus a year afterward. The rules explicitly banned bribes as well as gifts if they appeared intended to influence transition work. And workers pledged not to aid foreign governments or foreign political parties during the transition.
The Obama code built on George W. Bush’s 2000 transition ethics rules, which prohibited employees from using non-public information for private gain, barred them from lobbying for six months and disqualified them from transition work related to their financial interests.
Ethics experts say concerns about Trump turning the management of his far-flung real estate empire over to his children are complicated by their appointment — as well as that of his son-in-law — to the executive council of his transition committee.
Trump has essentially empowered his family to have a hand in decisions about top appointees who could affect the family’s real estate empire. (After his election in 1976, Jimmy Carter set up elaborate arrangements to remove himself from the family peanut business, its management and knowledge of day to day decisions).
“The danger they face is they’re going to be accused of stacking the deck in favor of the Trump businesses.” said Richard Painter , chief White House ethics lawyer for President George W. Bush from 2005 to 2007.
There are other ethics red flags, experts say. With numerous lobbyists and industry executives populating the transition team, will they recommend appointees to run government agencies that will regulate the businesses they represent?
“They should not be selecting regulators who will then regulate their companies,” said Trevor Potter, an election-law lawyer who advised Republican Sen. John McCain on his 2008 presidential bid. An ethics policy could for example, require these lobbyists to recuse themselves from recommending appointees who would govern their industries, he said.
Michael Toner, who served as general counsel to the Bush-Cheney transition in 2000, recalled the 10 week post-election period as a time for setting broad ethical policy — and considering specific safeguards — that would set the tone for the incoming administration.
In 1992, Bill Clinton’s transition rules barred workers from having a hand in issues related to their financial interests and from lobbying on related matters for six months afterward. Four years earlier, George H. W. Bush required transition workers to pledge not to use inside information for profit.
There is no legal requirement that Trump sever ties to his business empire. The ethics laws that prevent other executive-branch officials from maintaining ties to companies that could benefit from their official actions does not apply to the president or the vice president.
Earlier this week a leading House Democrat, Rep. Elijah Cummings (D-Md.) called on Oversight and Government Reform Committee Chairman Jason Chaffetz (R-Utah) to launch an investigation of Trump’s financial arrangements “to ensure that he does not have any actual or perceived conflicts of interest.”
Tom Hamburger contributed to this story.