On Monday, reports continued to surface that the White House was telling the Office of Government Ethics to “back off” and stop trying to find out about the many super-dubious swamp people Trump et al are hiring. The ethics agency was created after Watergate and as you can imagine probably feels a lot like kryptonite to our orange scam artist in Chief. The Office of Governments Ethics wrote back to the White House by pressing their middle finger hard against the face of John Mulvaney, reminding Republicans that they wanted these goddamn rules in the first place.
Despite the highly unusual nature and distribution of your letter,4 I have provided for your convenience the following discussion of OGE's plenary authority to collect the information and records sought, as well as evidence of the longstanding history of compliance with such collections, which obviate any need to request an opinion from the Department of Justice's Office of Legal Counsel (OLC). The unusual nature of your letter highlights OGE's responsibility to lead the executive branch ethics program with independence, free from political pressure. Accordingly, OGE declines your request to suspend its ethics inquiry and reiterates its expectation that agencies will fully comply with its directive by June 1, 2017. Public confidence in the integrity of government decisionmaking demands no less.
By law, OGE is the "supervising ethics office" for the executive branch. 5 Under the Ethics in Government Act of 1978 (EIGA), as amended, OGE has plenary authority to collect all information and records that "the Director may determine to be necessary for the performance of his duties," as well as such reports "as the Director deems necessary," except to the extent prohibited by law.
Translation: Dude, stop trying to come at our department with your crazy fascist bullshit.
Congress has firmly articulated the need for OGE to have access to needed information and records, as the report of one House committee clearly states:
The Committee believes that it is not possible for OGE to ensure the effective and efficient operation of the executive branch ethics program as a whole without having up-to-date information on how agency programs are structured and without having important management data. This data would indicate, for example, the number of individuals who have and haven’t filed SF-278s; the number and type of corrective actions required of agency employees (divestitures, waivers, disqualifications); and the number of employees alleged or found to have violated employees’ standards of conduct or conflict of interest laws, rules, and regulations.
A Senate committee report similarly observes that, “[F]or purposes of performing his responsibilities, [OGE’s Director] will require access to relevant files and records of agency ethics counselors and other agency materials, information, and documentation necessary to monitor compliance with this statute and related conflict of interest laws and regulations.”
Translation: Why don’t you read the Legislative Branch’s take on this—you know, the lawmakers.
Agency ethics officials are well aware of their legal obligation to produce information and records subject to OGE’s directives. In fact, dozens of agencies have already complied with OGE’s current directive well in advance of the June 1, 2017, deadline. In addition, your own agency has a solid record of compliance with OGE’s information and records production directives. OMB recently complied with a directive to produce an extensive array of information and records that OGE needed for a thorough evaluation of OMB’s ethics program. OMB regularly responds to other OGE directives to produce information and records. Most recently, OMB provided OGE with notice of your own efforts to comply with the ethics agreement that you signed on January 10, 2017.
Translation: Everybody else has their act together, what’s your problem buddy?
Additional examples of agency compliance with OGE directives to produce information and records are abundant. Among other items, the most obvious examples include: notifications filed by Inspectors General and agency ethics officials related to criminal referrals for prosecution; criminal conflict of interest waivers; responses to executive branch-widedirectives for information and records; responses to directives to produce information and records in connection with multi-agency special issue reviews; responses to agency-specific directives in connection with oversight of individual agency ethics programs; directives to produce annually designations of separate agency components; responses to a standing directive to produce delegations of authority to Designated Agency Ethics Officials;reports of agencies’ acceptance of outside reimbursement for official travel; responses to requests for information regarding conflict of interest prosecutions; and responses to the annual Agency Ethics Program Questionnaire.
Translation: If you want I can bury you under a mountain of evidence showing that this is the way the ethics office works and has always worked.
Compliance on the part of agencies with these OGE directives to produce information and records is entirely commonplace; however, I am aware of the views of the White House’s current Designated Agency Ethics Official. In a letter dated February 28, 2017, he asserted that Presidential appointees serving in the White House Office are beyond the reach of basic ethics requirements universally applicable to millions of executive branch employees. As I explained in my response, the theory underlying his position has not been applied in the context of government ethics. Contrary to the Designated Agency Ethics Official’s assertion, the White House Office has routinely complied with OGE’s directives to produce information and records. For your edification, I have enclosed a sampling of materials that illustrate the exercise of OGE’s authority to collect information and records from the White House Office during every Presidential administration since the enactment of the Ethics in Government Act in 1978, including the Obama, Bush, Clinton, Bush, Reagan, and Carter Administrations. As you will observe when you review these materials, the compliance of the White House Office has not previously been in doubt.
Translation: I realize you guys have a “theory” about how you are above the ethics but, your “theory” is bullshit at best, and downright criminal at worst. You know all of the other presidents the United States has had since the OGE was created? Yeah, here’s a list of them complying with the fucking rules, dick. By the way, you guys are acting super guilty and no one here said you’re guilty.
In light of OGE’s clear authority and the long history of agencies’ compliance, your letter requesting a stay of OGE’s pending directive for production of information and records copied to hundreds of other executive branch officials is highly unusual. For OGE to fulfill its mission of preventing conflicts of interest and monitoring compliance with the ethics laws by agencies and officials, the Director must be able to act independently and free from political pressure. Congress created OGE as an institutional check to monitor the ethics program and to prevent conflicts of interest in the executive branch. OGE can effectively perform this role only if it can act objectively and without fear of reprisal.
In this context, it bears emphasizing that OGE has the authority to institute corrective action proceedings against agencies that fail to comply, or against individuals who improperly prevent agency ethics officials from complying, with the Ethics in Government Act. Likewise the Inspectors General and the U.S. Office of Special Counsel have authority to investigate allegations of retaliation against ethics officials for complying with the legal requirement to provide OGE with the information and records subject to this directive.
Translation: We are going to do our job and that includes making you comply with the ethics standards in the law. So fuck you.
Following its receipt of Chairman Grassley's letter and the development of the necessarl technological means, OGE began posting ethics pledge waivers on its official website. However, the current Administration has not been complying with this established practice.
In closing, I want to assure you that a request from the Director of the Office of Management and Budget is not something that I decline lightly. For the foregoing reasons, however, OGE is not granting your request to stay the pending directive to produce information and records. Please take all necessary steps to ensure that OMB's response is submitted by the June 1, 2017, deadline.
Translation: Fuck you very much.