"Draining the Swamp" and Deterring Good People: Executive Order on Ethics and Lobbying Restrictions

Political Law Leader: Charles R. Spies   Phone: (202) 572-8663   Email: cspies@clarkhill.com

On January 28, 2017, President Trump issued an executive order expanding certain "revolving door" lobbying restrictions on executive branch officials, and making several other changes to Obama-era ethics directives. The changes reflect President Trump's "drain the swamp" campaign rhetoric and now the administration's desire to prevent executive branch employees from profiting off of their government service after departing the public sector. As with previous executive branch ethics directives, "lobbying" and "lobbyist" continue to be defined in accordance with the Lobbying Disclosure Act of 1995, as amended.

Although much of the language contained in Trump's order is similar to that of restrictions put in place by previous administrations, one notable difference is the expansion of the post-employment executive branch lobbying ban from two years to five years. During President Obama's tenure, former executive branch officials were prohibited from lobbying their former agency colleagues for two years post-employment. President Trump's order expands this ban to five years post-employment. However, the order does not contain Obama-era language preventing lobbyists from leaving the private sector to work for the agencies that they previously lobbied, although all executive branch officials are prohibited from working on any "particular matter" with which they were involved in the two years prior to joining the Trump administration. Nor does President Trump's order contain restrictions on individuals who do not become federally-registered lobbyists, but instead work as "strategists" to influence the executive branch while staying under the Lobbying Disclosure Act's registration threshold.

President Trump's directive retains the Obama administration's language prohibiting former administration officials from lobbying the executive branch for the remainder of the current administration, as well as the lifetime ban on former administration officials engaging in activities requiring registration under the Foreign Agents Registration Act (FARA). The receipt of gifts from federally registered lobbyists by administration officials also continues to be prohibited. Officials found to have violated the directive after leaving the Trump administration may be barred from lobbying activities for an additional five years, and may be referred to the Department of Justice for investigation and prosecution.

While some experienced lobbyists may be deterred from joining the administration because of concerns about future employability, Trump's executive order, like ethics guidelines set by his predecessors in the Oval Office, provides that he may grant waivers to individuals entering or leaving his administration on a case-by-case basis. As was true during the Obama administration, President Trump's order does not require publication of such waivers in the Federal Register. However, the Obama-era order contained a provision requiring an annual report of such waivers from the Office of Government Ethics, while President Trump's order does not require such a report.

Clark Hill's Political Law team has a wealth of experience providing guidance to our clients with respect to executive and legislative branch ethics guidelines, as well as lobbying restrictions and requirements. Please contact your Clark Hill political law attorney for additional information.