Trump Names Acting Ethics Chief, Bypassing Senior Career Official

The White House last week announced that President Trump has tapped David Apol to serve as acting director of the Office of Government Ethics. Apol has worked at OGE for the past three years as general counsel.

Apol will temporarily fill the slot vacated a week ago by Walter Shaub, who immediately upon leaving embarked upon an unusual round of interviews in which he called for enhanced powers for the office and warned that Trump has created an ethics “crisis.” 

In reaction to the announcement, Shaub told Government Executive, "There are likely employees that are going to be put off by Interim Director Apol’s relatively loose view of ethics laws."

The Trump White House has continued to resist some of OGE’s requirements for financial disclosure and conflict of interest waiver reporting. Separately on Monday, a transparency group announced that it had filed 31 new requests under the Freedom of Information Act to force disclosure of Trump’s vast business interests.

Apol, who has 30 years in the ethics field including work as chief Counsel for administrative law at the Office of the U.S. Trade Representative, was promoted over Shelley Finlayson, the OGE’s chief of staff and program counsel. 

That prompted Shaub, from his post at the nonpartisan nonprofit Campaign Legal Center, to criticize the move by noting that under the 1998 Vacancies Reform Act, “the role of OGE’s acting director automatically goes to OGE’s highest-ranking career official, the chief of staff, unless the president overrides that designation.”

Trump, Shaub added, is “playing politics” with the interim director. “If they have someone they like, they should formally nominate that person to be permanent director. This sort of political interference creates the appearance that the White House may be hoping to engineer looser oversight by reaching down and leapfrogging a career employee over his own supervisor temporarily.” As general counsel, Apol can be acting director without going through Senate confirmation, Shaub added.

Trump’s designation of an acting ethics chief came just days after Shaub gave a series of blistering interviews on CNN and to the New York Times (for which he also wrote an op-ed). Shaub argued that past presidents have cooperated with the OGE, which Shaub joined in 2001, because they “entered government with an appreciation for the importance of tone from the top,” even though presidents and vice presidents are exempt from the conflict of interest statute.

“This tradition came to an abrupt stop with President Trump,” Shaub wrote on July 18. “By continuing to hold onto his businesses and effectively advertising them through frequent visits to his properties, our leader creates the appearance of profiting from the presidency.”

Despite occasional tensions, Shaub wrote, “White House officials always understood that OGE’s only goal — and, indeed, my only goal — was to protect the integrity of the government’s operations . . . That’s why it is disheartening now to witness parts of the ethics program slipping away.”

Shaub criticized Trump for traveling frequently to his own properties, which is a way of providing free advertising, he told CNN.

The White House issued a statement in response saying, “Shaub has been outspoken by leaking, tweeting, and writing letters to Democrat members of Congress, but since the president was sworn into office, he never once raised travel, passive holdings or other ethics issues involving the president in a single discussion with the White House counsel or deputy counsel overseeing ethics and compliance.”

‘A Kleptocracy In Action’

In the Times, Shaub laid out a series of reforms he recommends to Congress for strengthening the ethics process. Among them: requiring the 4,000 political appointees to prepare their own formal ethics agreements with their agencies; requiring all appointees to sign compliance statements; giving OGE limited subpoena power and authority to deal directly with Congress on its budget; and requiring presidential and vice presidential candidates to disclose their tax returns to the Federal Election Commission.

Shaub’s aggressive critiques are unusual but not unprecedented, according to experts contacted by Government Executive. “I have seen it with both Republicans and Democrats,” said Ed DeSeve, a longtime agency manager who chaired the National Academy of Public Administration’s Transition 16 program. But it makes a difference that “Shaub was not appointed by Trump. If you were appointed by the same president, a code of silence would apply,” DeSeve said. Merely disagreeing “with the president’s policies or view of the agency mission presents no problem,” he added. But rather than personalizing the issue by focusing on Trump himself, “I would have avoided that and taken the high road.”

Paul C. Light, professor of public service at New York University, said, “You have to be careful to not create the outcome you oppose. OGE has always been irritating, and some people have opposed it from the very beginning” in 1978 because it “makes life difficult” for presidential appointees by asking lots of questions. “I admire Shaub for protecting his office, but to the extent that he is viewed as launching a highly focused attack on Trump, it becomes politicized."

Norm Ornstein, a scholar at the American Enterprise Institute, said, “Everybody I’ve seen over the years who worked with Shaub saw him as model public servant. But there’s plenty of frustration among people having to go through the ethics process when they’re coming in, plenty of which has nothing to do with OGE.”

Yet the Trump administration, Ornstein added, “has basically given him the middle finger from the get-go. What I’ve seen is a kleptocracy in action, a complete unwillingness to take even the slightest steps” toward disclosure and addressing potential conflicts of interest. That, in Ornstein’s view, “can be pretty scary” when it comes to secret deals between Trump’s family members and Chinese businessmen, or domestic regulatory decisions that could benefit wealthy Trump appointees. Shaub’s decision “to speak out volubly I wouldn’t think of as sour grapes,” he said.

Meanwhile, Trump’s business holdings and those of his appointees on Monday became the target of a new transparency campaign titled “Defund Trump.” The nonprofit group American Oversight filed 31 FOIA document requests for travel expenses for trips to Trump properties by Attorney General Jeff Sessions, Homeland Security Secretary John Kelly, Commerce Secretary Wilbur Ross, Treasury Secretary Steve Mnuchin, and Small Business Administration chief Linda McMahon. They also requested documents on related expenses at 18 agencies.

The group also seeks governmentwide guidance on the use of Trump properties as issued by the General Services Administration and the Office of Government Ethics. Finally, it seeks any reimbursements paid by agencies to Trump officials for staying at Michigan hotels owned by the family of Education Secretary Betsy DeVos.

American Oversight also sent letters to congressional oversight committees calling for action to challenge what it sees as the administration’s conflicts of interest. “Rather than draining the swamp as he promised during his campaign, President Trump has created an entirely new quagmire where he and the first family luxuriate in the muck,” said American Oversight Executive Director Austin Evers. “President Trump’s self-dealing may be unsurpassed in American presidential history—never before has so much taxpayer money been diverted to the president’s pocketbook as government business is steered to Trump properties around the globe.”

Rep. Don Beyer, D-Va., on Monday introduced four amendments to a House spending bill that would “prevent Donald Trump from enriching himself at taxpayer expense by blocking the federal government from renting rooms at Trump brand hotels for official travel,” a statement said.