The Independent View: Government Ethics Office Sticks With Ban on Anonymous Gifts

The Head of the U.S. Office of Government Ethics (OGE) said on Friday that the Agency is Sticking with its long-standing stance Prohibiting Anonymous Donations to White House Legal Defense Funds, despite recently putting forward Language that appeared to Undercut that Position.

OGE has been under fire this week in the wake of a Report detailing a small but potentially critical Change to the Agency’s Official Guidance Document that the OGE’s recently Departed Director said could give a Green Light to President Trump’s Aides to accept Anonymous Donations to pay their Attorney Bills.

But David Apol, the Acting OGE Director, said there’s been No Change, and he’s been giving Advice to Outside Groups that are coming forward to set up Legal Defense Funds for Trump Aides, as the Russia Probe intensifies, that they should have their Donors Disclose their Identities. “OGE has not changed its policy on anonymous donations,” Apol said. Apol also said that he’s been providing Sample Legal Language to Organizers of the Trump Legal Defense Funds, though he declined to Name the Individuals inquiring about setting up the Trusts.

At issue is a 1993 Advisory Opinion that allowed for Secret Contributions to Defense Funds from Lobbyists. A recently added Disclaimer appeared to reinforce that Opinion, despite years of Informal Policy to Disregard it and instead Advise Government Employees not to take Anonymous Gifts at all. Apol’s Predecessor, Walter Shaub, an Obama Appointee who vacated his Five-Year Term early after repeatedly Clashing with the Trump Administration over Interpretations of Ethics Rules, flagged his concerns about the Changes on Twitter last weekend.

The Original Bill Clinton-era Opinion reasoned that if Donors were Anonymous, they couldn’t Exert any undue Influence over their Beneficiaries because the Employee “does not know who the paymasters are.” But soon after OGE issued that 1993 Guidance that permitted Unnamed Gifts, Agency Officials began Advising Attorneys to stay away from all Donations by Lobbyists, Anonymous or not, as they arranged Funds Benefiting President Bill Clinton, then-First Lady Hillary Clinton, and other White House Aides. OGE never Revoked the Original Guidance during the subsequent Two Decades, but it did make a Change to the Document this past May.

Shaub instructed his Staff this Spring to put a one-sentence Warning on the 1993 Document declaring: “NOTE: SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE. He made the fix specifically so that Trump White House Staff would know to disregard the 1993 Document, even though it hadn’t yet been formally Updated.

But Apol, who was tapped as Acting OGE Director after Shaub Resigned, had Shaub’s Warning Language Replaced with a longer Explanation indicating that “the primary finding” of the original opinion “has not changed.” The New Disclaimer also explained that “because each analysis is very fact-specific” that Government Ethics Officials should do a deeper Examination before Advising Individual Employees on the Rules.

In a Statement Friday, OGE said its Policy remains the same as when Shaub left the Agency and it made the change “only to clarify that the main part of the advisory was still valid and to expressly encourage people to contact OGE before establishing a legal defense fund.” Apol also said the original 1993 Document would remain on the Agency’s website.

A Trump White House Official earlier this week said it was not helping to set up any Legal Defense Funds and it also was not pushing for any Change that allows Anonymous Donations. The White House, under the expectation outside Groups would set up Defense Funds, was working with OGE to make sure it could give its Employees the Proper Guidance.

But, Government Watchdog Groups on Friday urged OGE to Clarify its stance. Public Citizen called on the Agency to develop Rules and Guidance for all Executive Branch Employees on the Issue of Legal Defense Funds, including details on Contribution Limits, which Sources are Prohibited, and Disclosure Requirements. American Oversight, Citizens for Responsibility and Ethics in Washington, and Common Cause joined several other Groups and Individuals in calling for the Original Guidance Document to be Removed from OGE’s website.

“OGE should promptly resolve the controversy and confusion about this matter by rescinding the 1993 letter and by formally and publicly reaffirming its long-standing policy against anonymous lobbyist contributions to legal defense funds,” the Groups wrote in a Letter to Apol. “We also ask OGE to similarly clarify that gifts cannot be accepted from subordinates or anyone making the gift because of the appointee’s official position. Ethics best practices demand nothing less.”