Tuesday, January 17, 2017

OGE Scandal II

Richard Painter and Norman Eisen have an interesting but rather overwrought article on the recent furor over the USOGE. A taste of it gives a sense of the absurdity of it:

For speaking up about the shortcomings of this plan, Shaub found himself in the Republican crosshairs. Rep. Jason Chaffetz (Utah), chair of the House Oversight and Government Reform Committee that has jurisdiction over the White House, demanded Shaub appear for a Star Chamber-style recorded inquisition and implicitly threatened to shut down the Office of Government Ethics if Shaub did not submit. Chaffetz ought to have been doing the exact opposite, supporting OGE and demanding documents from Trump about any financial ties to Russia or other foreign governments.

Look, the first and most basic principle of government ethics is that authoritative action requires a mandate for the relevant authority. This can get a bit complicated. Director Shaub as a political appointee has more leeway than any of the civil servants under him do. But this is not unlimited. As head of a government agency not explicitly required by the Constitution, Shaub has no authority -- indeed, no right -- to engage in any actions qua head of the agency that are not explicitly authorized by statute, either in itself or as interpreted and specified by Presidential order. If there is even the slightest question about whether he has overstepped their bounds, Congress has the right, and the duty, to investigate as it deems appropriate.

And Director Shaub's recent actions raise serious concerns about whether he is remaining within the bounds of his actual authority when speaking as Director of USOGE. Despite the apparently unrestricted name, the Office of Government Ethics is not a universal ethics agency -- for very obvious reasons, the ethics authority of the government is spread around among a number of very different agencies. (Contrary to some news reports, there is no sense in which Shaub is the government 'ethics chief'.) OGE has no enforcement authority -- there are excellent reasons from a government ethics perspective to split ethical policy-making and advice, which is what OGE does, and enforcement. OGE has no advisory authority over the Office of the President, not just for the obvious reason that it itself is an executive branch agency, but for other reasons. It is primarily concerned with the civil service (and, to a lesser extent, political appointees heading the civil service), not with the actions of the President. In this it contrasts with (e.g.) the Office of Legal Counsel -- arguably the most important ethics advisory agency in the executive branch -- which has, as part of its explicit authority, informing the President on the constitutionality of his actions. The OLC is an instrument of the Office of the President's ethical self-review; the OGE is an instrument of that Office's ethical review of the executive branch. Nor does the OGE have any general authority to advise on ethics; its entire existence is to assist in carrying out conflict of interest statutes and financial disclosure statutes through advice, training, and policy-making. The Office of the President is not governed by these statutes, and these statutes establish no requirements that a President-Elect must meet in order to come to occupy the Office of the President. (It would likely be unconstitutional for Congress to impose such requirements where they were not simply specifications of explicit requirements in the Constitution.)

Thus Director Shaub's exact role in this context is very, very limited. It is customary for the Office of the President to consult OGE on matters where its actions could be related to COI statutes primarily in order to 'lead by example'. This is not a legal requirement; it's just a reasonably good thing to do. But it means among other things that Director Shaub has no authority to tell the President how his finances must be arranged, or whether he must take certain steps to deal with conflict of interests; all he really has the authority to do is to say whether the President is making an exception for himself or not. The President-Elect has no official position; as a private citizen he does not directly fall under Director Shaub's authority, even purely advisory authority, at all. Transition matters are handled under the direct authority of the Office of the President. In advising the President-Elect's transition, Shaub is strictly speaking advising the President and, to a lesser extent, serving as an intermediary of communication between the President and the President-Elect. This leaves very little authoritative room.

And it is at least questionable whether Shaub has stayed on this limited ground. Indeed, I would argue that his Twitter effusion, which baffled everyone at the time and for which he later claimed direct responsibility, was, besides raising more general ethical concerns about professionalism and about correct use of the means of government communication, a clear overstepping of authority. Some of his more recent comments are at least close to the line, not because they were done but because they were not directed to the appropriate parties (the President, primarily, and the President-Elect, as the concerned party, and Congress), but were made in public. Public criticism is not standard OGE practice; it is doubtful that a Director has the authority to engage in it. And if he technically does, there's good reason to argue that it would be more appropriate to inform the President of his concerns so that the President can address it in public. This is indeed a puzzling aspect of the entire situation; why is Director Shaub making these statements, rather than President Obama, who can do so without any danger of overstepping his authority?

But there's another issue in the vicinity here. If OGE does not have direct authority to review and assess conflicts of interest relevant to the Presidency, who does? And the answer is very clear: only Congress and the Presidential Office itself. And Congress has perfect right to question over his actions on a matter like this, and, if necessary, reprimand the head of the OGE for failing to recognize this. It is, of course, another question whether it is prudent or reasonable for it to do so, but, again, Director Shaub's recent actions go well beyond the normal precedents for how the head of the OGE advises and assists in these matters.

Painter and Eisen are on much stronger ground when they criticize attempts to argue against Shaub's general record or his competence. The OGE is, if I can say it without sounding negative, just about the most boring bureaucracy in a government full of boring bureaucracy; that is to say, most of what the OGE does is quite cut-and-dry, a system of procedures for ruling and advising on what is consistent with various procedures, and the human judgment side (of which there is a fair amount) is almost wholly concerned with precedents and the interpretation of executive orders on very specific subjects. It works admirably, and extremely consistently, to the point that it is almost monotonous. Shaub has kept it running quite smoothly through his entire tenure, so that there could hardly be any general complaints about his work. But this is precisely what makes his recent unusual behavior -- and it is very unusual -- stand out all the more.

Painter and Eisen go on to say:

We think apologies are due Shaub. In addition, we recommend that Republicans back off of their threats. How about Chaffetz instead publicly affirm the need for the agency and invite Shaub to have a public conversation about that and about Trump’s conflicts with both the majority and minority members of the committee? We are sure that Shaub would accept such an offer and explain to the committee and the public why his concerns about the president-elect’s plan are well founded.

Rep. Chaffetz might be well advised to do such things; but it is certainly clear that he has neither constitutional nor legal obligation to do so. Director Shaub is concerned with one strand of ethical policy under the executive authority of the Office of the President and in accordance with the statutory guidelines laid down by Congress, and both the President and the Congress can, practially speaking, demand an accounting about pretty much anything concerning Shaub's actions as Director of USOGE. And if Chaffetz does honestly think there may be an overstepping of statutory authority here, he has an ethical obligation to follow up on it, particularly given that he is chairman of a Congressional committee with clear oversight authority for these matters. What Shaub would accept or not is irrelevant to this; he is an appointee operating under the President and Congress, not his own man. And the question is not whether his concerns about the President-Elect's plans are well founded; the question is whether he is acting in a way appropriate to his position. Any citizen can have well founded concerns about the President-Elect's plans; the route citizens have for dealing with this is to inform their Congressional representatives. But Shaub is acting as the head of a government agency with very specific and narrowly defined boundaries which he has an ethical and legal responsibility to respect. Chaffetz has been quite explicit that this is, in fact, what concerns him: his charge is that Shaub is "blurring the line between public relations and official ethics guidance". And, as I've noted, it's not an illegitimate concern -- Shaub's recent actions are not typical of how the OGE goes about giving official ethics guidance, and it's not at all clear why he is taking the responsibility himself to be public about it rather than turning the matter over to the President.

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