The acting director of the Office of Government Ethics said Thursday that he will maintain the watchdog’s practice of directing legal defense funds established for employees of the executive branch to bar contributions from anonymous sources.
The legal advisory issued Thursday is an apparent reversal from a brief, earlier update under OGE’s new acting director, David Apol, which suggested that the office would allow legal defense funds to accept donations from anonymous sources, such as lobbyists.
The last official guidance issued on the matter is a legal opinion from 1993, which established that legal defense funds for executive branch staffers could accept anonymous donations from lobbyists. Since the Clinton administration, however, the OGE in practice has directed those setting up such funds not to accept any anonymous contributions.
The ethics office sparked confusion earlier this month by placing a note atop the 1993 opinion, stating that the finding had not changed. The move suggested that under Apol, OGE might permit legal defense funds to accept anonymous contributions, although a spokeswoman for the office told TPM at the time that the policy had not changed and that it was still directing funds to bar anonymous donors.
These rules have come under much greater scrutiny since current and former staffers to President Donald Trump hired legal representation to field special counsel Robert Mueller’s probe into Russian interference in the U.S. election. So far, Trump ally Roger Stone and former National Security Adviser Michael Flynn have established legal funds, but it has not been reported that any current White House staffers have legal funds.
The advisory issued Thursday formalizes that OGE will direct any legal defense funds set up for executive branch staffers to include a clause stating that “contributions shall not be accepted from anonymous sources.”
But ethics experts note that the guidance on legal defense funds is still vague, and they argue that OGE should establish stricter guidelines.
“It’s still somewhat remarkable that there aren’t more specific regulations and guidelines with respect to legal expense trust funds in the executive branch. The guidance is very thin, particularly when compared to the guidance provided by the House and Senate Ethics Committees,” Robert Walker, a government ethics expert at Wiley Rein LLP, told TPM.
Walker said that OGE should give clear guidance on who can and cannot serve as trustee for a staffer’s legal defense fund; what information those funds would be required to make public; and what limitations have been established on how much an individual can donate.
He said that while it may have been “practical” for OGE to issue vague guidelines, the ethics watchdog should eventually craft regulations with more specific instructions for this type of legal defense fund.
Walter Shaub, the former OGE director who resigned after Trump took office, also criticized a “lack of transparency” in the new legal advisory from Apol. In a series of tweets, he noted that OGE did not make it clear whether it will require funds to publicly disclose their donors, nor did it publicize any guidance for who can be a funds’ trustee, among other issues.
The advisory stated that the legal defense funds must comply with certain gift rules, which Shaub noted bar contributions from a source who is donating because of the beneficiary’s official position. Walker noted that question was raised before the Trump administration and has been “carried over” by the advisory issued Thursday.
“This is an inherent tension and issue with the whole notion of legal expense trust funds in the executive branch,” he observed. “How do you get around the fact that they’re all probably being given because of the official position of the individual? I think OGE probably would be better of addressing that squarely.”
Walker added that OGE needs to say how the funds “might be best structured to avoid potential conflicts and the appearance of conflicts.”