In May, four Democratic senators wrote a letter to the Office of Government Ethics probing the Trump administration’s supposed “retroactive” waiver exempting Steve Bannon, poster child for White House dysfunction, from certain federal ethics rules. OGE director Walter Shaub had previously dismissed the notion of a “retroactive” ethics waiver; now the office has issued its formal response.
Short version: No, retroactive waivers for ethics violations that have already occurred are still not a thing.
As discussed above, two legal authorities require Mr. Bannon to recuse from certain matters involving his former employer, Breitbart News Network. Paragraph 6 of the ethics pledge under Executive Order 13770 requires him to recuse from particular matters involving specific parties in which this former employer is a party or represents a party. The order also requires him to recuse from any meeting or other communication with his former employer relating to the performance of his official duties, unless the communication applies to a particular matter of general applicability and participation in the meeting (or other event) is open to all interested parties. Mr. Bannon can be excused from these requirements under paragraph 6 if he receives a written waiver, which will become effective when it is signed and not on an earlier date.
So does Mr. Bannon have such a waiver? No. No, he does not. Because the “waiver” the White House presented to nullify ethics claims wasn’t even signed.
The waiver is problematic because it is unsigned and undated, and it purports to have “retroactive” effect. These deficiencies are inconsistent with the language of Executive Order 13770. As discussed earlier, the order expressly provides that a waiver is effective only after it has been signed: “A waiver shall take effect when the certification is signed by the President or his designee.” More importantly, the putative retroactivity is inconsistent with the very concept of a waiver, which is to take decisions regarding the appropriateness of an employee’s participation in covered matters out of the employee’s hands. By engaging in a prohibited matter at a time when the appointee does not possess a waiver, the appointee violates the rule. Although the White House may later decide that such a violation does not warrant disciplinary action, the subsequent issuance of a waiver would not change the fact that a violation occurred.
Having the Office of Government Ethics have to patiently explain to a new administration that they cannot violate federal ethics rules and then issue a “retroactive” waiver immunizing themselves from whatever they just did has a rather Alice in Wonderland feel to it, but hang on: the “retroactive waiver” for past sins wasn’t just undated—it wasn’t even signed?
We have to ask, at this point: Does the purported president even know this waiver was printed out? Is he aware that he theoretically immunized Steve Bannon from ethics violations—or did Steve Bannon just print out a letter supposedly saying so without Donald’s knowledge?
In any other administration, the thought that staffers would print out unsigned, undated waivers and ship them off to federal departments to defend themselves from allegations of federal ethics breaches would seem ludicrous. But in this White House? With these staffers? It’s entirely possible. It’s maybe even more likely than that the letter was unsigned by the president because Steve Bannon never even bothered showing it to him.