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The Office of Government Ethics said in a letter to Democratic senators this week that the Trump administration’s blanket ethics waiver applicable to White House chief strategist Steve Bannon is “problematic because it is unsigned and undated” and “purports to have ‘retroactive’ effect.”
In late May, the White House released the ethics waivers it provided to at least 16 White House staffers to allow them to work with subjects they had in the private sector before joining the government.
One of those waivers was a blanket exemption provided to all Executive Office of the President appointees that appeared to cover Bannon. The exemption allows all appointees to “participate in communications and meetings with news organizations regarding broad policy matters.” Before joining the White House, Bannon led Breitbart, the nationalist right-wing news site, and his level of involvement with the site after joining the administration has been the subject of some debate.
The waiver was also listed as having a “retroactive” effect, claiming to cover any possible ethics breaches that occurred before the waiver was issued.
In the OGE’s letter to Democratic Sens. Elizabeth Warren and Ed Markey of Massachusetts, Sheldon Whitehouse of Rhode Island, and Mazie Hirono of Hawaii, OGE Director Walter Shaub wrote that the “deficiencies” he saw in the waiver “are inconsistent with the language of” President Donald Trump’s executive order on ethics from his early days in office.
“As discussed earlier, the order expressly provides that a waiver is effective only after it has been signed,” Shaub wrote. “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,” he continued in the letter.
Shaub said it was significant that the waiver only partially covers any communications Bannon engages in or has engaged in with Breitbart.
“It authorizes him to communicate with Breitbart and to participate in meetings with his former employer, but only if the subjects of discussion are limited to ‘matters of broad policy and particular matters of general applicability,'” Shaub wrote. “Given the limited scope of this waiver, Mr. Bannon remains barred, under both” Trump’s executive order and long-standing ethics guidelines “from participating in any ‘particular matter involving specific parties’ in which Breitbart is a party or represents a party.”
Shaub said Bannon “remains barred” from “participating in any meeting, event, or other communication with Breitbart when the subject of discussion is” a specific party and not a policy matter, regardless of if Breitbart is one of the parties involved in the matter.