Judicial Watch • Ethics Waivers

Ethics Waivers

Ethics Waivers

MARCH 14, 2012

The day after President Obama was sworn into office, he released the Ethics Commitments by Executive Branch Personnel, Executive Order 12490. This ethics pledge was the supposed fulfillment of Obama’s campaign promises to reform politics and create a more ethical government. The new pledge, which every government appointee must sign, includes five bans. Three have shown to be problematic:

  1. Lobbyist Gift Ban. No government appointee is allowed to accept gifts from lobbyists or lobbying organizations under this new pledge.
  2. Revolving Door Ban — All Appointees Entering Government. This ban bars appointees from participating in any matter involving parties related to previous employers. The restriction was criticized as being too limiting, since it is necessary to appoint experts in their fields, and these experts would often have conflicts of interest under this condition.
  3. Revolving Door Ban — Lobbyists Entering Government. Under this restriction, lobbyists are forbidden from participating in any matter they lobbied on within 2 years before their appointment. They are also restricted from participating in specific issues which they lobbied on, and may not seek employment with any executive agency they lobbied within.

Although President Obama chose to include these restrictions, he has made several exceptions to the Executive Order. The first waiver was issued only a day after Obama signed the Executive Order. In total, thirty-four ethics pledge waivers have been granted to members of Obama’s administration. Below, Judicial Watch has documented each waiver, and the reason for which it was given.

Executive Agency Ethics Pledge Waivers

Herbert M. Allison, Jr., Assistant Secretary for Financial Stability, Department of Treasury

Waiver granted: September 16, 2009

Herbert M. Allison, Jr. works for the Treasury Department as a Counselor, and is also, according to the official press release, “responsible for developing and coordinating Treasury’s policies on legislative and regulatory issues affective financial stability, including overseeing the Troubled Asset Relief Program (TARP).” He was granted an ethics waiver because of his relationship with Fannie Mae. In September 2008, Allison came out of retirement to become President of Fannie Mae. Because of Fannie Mae’s role in the financial crisis, Allison required a waiver in order to work on the Homeowner Affordability and Stability Plan (HASP) and the Emergency Economic Stabilization Act. While the waiver allows him to work in areas including the financial crisis and TARP, Allison is not permitted to be involved in issues directly affecting Fannie Mae.

Charles F. Bolden, Jr., Administrator of National Aeronautics and Space Administration

Waiver granted: July 23, 2009

Charles Bolden, Jr. was appointed NASA Administrator on July 17, 2009. A few days later, an Ethics Pledge waiver was granted because of his past work at Science Applications International Corporation (SAIC) and GenCorp. Both companies work with NASA and without a waiver, Bolden would not be able to participate in any matter “involving specific parties in which either SAIC or GenCorp is or represents a party.” The waiver was issued with limitations, as Bolden is only allowed to participate in issues involving SAIC or GenCorp at a policy or program level. He is not allowed to engage in “one-on-one meetings or communications” with the corporations or participate in contracting matters concerning the two companies.

Lanny A. Breuer, Assistant Attorney General, Criminal Division, Department of Justice

Waiver granted: May 6, 2009

Breuer was appointed Assistant Attorney General of the Criminal division at the Department of Justice in May, 2009. However, because of his former legal firm’s involvement in the prosecution of Ted Stevens, U.S. Senator from Alaska, a waiver was required so that Breuer would be permitted to participate in matters concerning the case. One of the attorneys assigned to Stevens’ case is currently being represented by Breuer’s former firm, and is currently under examination by the Department of Justice. According to the waiver, “it is important that you [Breuer] be able to exercise your leadership role as the head of the Criminal Division and to advise the leadership.” Therefore, Breuer was granted permission to “participate in the investigation of a Department attorney who is represented by your former firm.”

Ashton Carter, Under Secretary of Defense for Acquisition, Technology, and Logistics

Waiver granted: May 11, 2009

Ashton Carter was appointed to the Department of Defense in May 2009. In the past, he had worked with Textron, Inc., a defense and intelligence corporation. The Department of Defense decided that a waiver was required for Carter because “consulting advice you provided to Textron was strategic in nature.” After consultation with the White House it was decided that Carter be allowed to participate in matters concerning Textron and all of its subsidiaries and divisions.

Paul Carttar, Director of the Social Innovation Fund (SIF) for the Corporation for National and Community Service

Waiver granted: April 5, 2010

Prior to serving as Director, Carttar had relationships with several organizations that are or may be applicants for SIF funding. He was a salaried employee for Monitor Group, a consulting firm, and was an Executive Partner of New Profit, Inc. He has also served on the Boards or worked for New Leaders for New Schools, Teach for All, and Kaboom!.

Charles Collyns, Assistant Treasury Secretary for International Finance

Waiver granted: February 12, 2010

Charles Collyns received a waiver to work at the Department of Treasury despite his former jobat the International Monetary Fund. Ordinarily, Collyns would not be allowed to work on projects involving the International Monetary Fund, but as stated in his ethics pledge waiver, it would be “difficult to assign these matters to another employee, nor can other adjustments reasonably be made, because the Department will rely on your expertise in international macroeconomic policy.”

Donald L Cook, Deputy Administrator for Defense Programs at the National Nuclear Security Administration

Waiver granted: June 30, 2010

Dr. Donald L. Cook previously worked for Lockheed Martin’s Atomic Weapons Establishment (AWE) and as President of Lockheed Martin Company since March 2006. The Sandia National Laboratories is managed and operated by the Sandia Corporation, which is a wholly owned subsidiary of Lockheed Martin. As Deputy Administrator, Cook is responsible for directing, managing, and overseeing the nuclear weapons production facilities and the national security laboratories.

Matthew Gandal, Director for Technical Assistance and Outreach

Waiver granted: May 31, 2011

Matthew Gandal received an ethics waiver to serve as Deputy Director for Technical Assistance and Outreach. Previously, Gandal served as Executive Vice President for Achieve, “an independent, bipartisan, non-profit organization created in 1996 by governors and corporate leaders to work on education reform issues.” According to the waiver, “individuals who are currently affiliated with Achieve may be identified as speakers and panel members for RTT technical assistance activities. Additionally, Achieve is the program management partner on one of the two RTTA grants PARCC/Achieve and received a supplemental grant from the Department.” One of the four education reform areas for which Gandal is responsible “overlaps with work PARCC/Achieve will be doing under the RTTA and the RTTA supplemental grants.”

Lisa C Gomer, General Counsel for US Agency for International Development (USAID)

Wavier granted: July 17, 2010

Prior to serving as General Counsel, she engaged in five limited-term consultancies with the U.N. on discreet programs. Ethics requirements were waived as it pertains to Ms. Gomer’s involvement in discussions among the United States Mission to the UN, USAID, and the United Nations Development Program.

Eric Holder, Attorney General of the United States

Waiver granted: May 6, 2009

Attorney General Eric Holder was granted an ethics waiver so that he would be able to investigate federal prosecuters in the case of U.S. v Stevens.In April 2009, the U.S. District Court for the District of Columbia appointed a special counsel to investigate any possible criminal activities on the parts of six Department of Justice attorneys involved in Senator Stevens’ case. Holder’s (as well as Assistant Attorney General Breuer’s) former law firm is representing one of the six lawyers under review. The ethics waiver was granted because “it directly serves the public interest that the Department have the benefit of [Holder’s] participation in this case, given the institutional interest of the Department, the important legal, policy, and strategic considerations, and your knowledge of the case.” Because of the ethics waiver, Holder is permitted to be involved in all proceedings involving the investigation.

Zachary J Lemnios, Director of Defense Research and Engineering for the Department of Defense

Wavier granted: September 24, 2010

Ethics requirements were waived as it pertains to Mr. Lemnios’ prior employment as Chief Technology Officer at the MIT Lincoln Laboratory, a federally-funded research and development center. Its research and development activities focus on long-term technology development as well as rapid system prototyping and demonstrations for the Department of Defense.

Carmen Lomellin, Permanent Representative to the Organization of American States

Waiver granted: December 3, 2009

Carmen Lomellin was granted an ethics pledge waiver due to her former position as the Executive Director of the Inter-American Commission of Women at the Organization of American States. Since her new position as also at the Organization of American States, she needed a waiver because if her “constant” interaction with OAS, including the Inter-American Commission of Women.

Joseph Main, Assistant Secretary of Labor for Mine Safety and Health

Waiver granted: November 10, 2009

Joseph Main was granted a waiver allowing him to meet with “any authorized miner representative…concerning any matter relating to mine safety and health.” Since his former employer was the United Mine Workers of America, Main needed the waiver in order to avoid the revolving door ban about meeting with former employers.

Phillip D Murphy, US Ambassador to Germany

Waiver granted: September 29, 2010

From February to August 2009 he was a board member on the US Soccer Federation World Cup Bid Committee. Murphy was granted a waiver as it pertains to communications to secure for the United States the World Cup in 2018 or 2022. This waiver expired on December 22, 2010.

David W. Ogden, Deputy Attorney General of the United States

Waiver granted: May 6, 2009

Ogden’s waiver was required for the same reason Breuer’s and Holder’s were. His former employment at the firm currently representing an attorney from U.S. v Stevens barred him from participating in any involvement in the examination of that attorney by the DOJ.

Malcolm O’Neill, Assistant Secretary of the Army for Acquisition, Logistics & Technology

Waiver granted: March 10, 2010

Malcolm O’Neill was employed by Lockheed Martin Corporation prior to being appointed Assistant Secretary of the Army for Acquisition, Logistics & Technology. His waiver was granted in order to let him work on matters concerning Lockheed Martin. It does not, however, “permit your involvement in any particular matter which will have a direct, predictable, and substantial affect on Lockheed Martin’s financial ability, including its ability or willingness to continue paying your defined benefit plan.”

Stephen J. Rapp, Ambassador at Large for War Crimes Issues

Waiver granted: September 9, 2009

Prior to his appointment to the State Department as Ambassador at Large for War Crimes Issues, Stephen Rapp worked for the United Nations as an Independent Prosecutor of the Special Court for Sierra Leone. His waiver states that “in your role as Ambassador at Large for War Crimes Issues, you will be called upon to work with the United Nations and the Sierra Leone Court in many areas.” His waiver gives him the authority to be involved in matters concerning his former employer.

Philip R. Reitinger, Deputy Undersecretary of National Protection & Programs Directorate

Waiver granted: May 19, 2009

Before being appointed to the Department of Homeland Security, Reitinger worked for and with several corporations including Microsoft, Software Assurance Forum for Excellence in Code (SAFECode), and the Information Technology Information Sharing and Analysis Center (ITSAC). Given DHS’ potential involvement with these corporations, a waiver was granted so that Reitinger would be allowed to participate in matters “in which any of these entities has an interest or is represented.” While normally Ogden’s employment at these companies would bar him from any dealings the DHS would have with them, it was decided that public interest and safety required the waiver. It was also concluded that “despite a diligent search, no candidate has been identified who would not bring similar conflicts with him or her.” Because of Reitinger’s expertise, he was appointed the position without limitations.

Margot Rogers, Chief of Staff, Department of Education

Waiver granted: March 23, 2009

Margot Rogers’ prior work for the Bill & Melinda Gates Foundation would potentially have been a conflict of interest. However, she was granted a waiver from the Department of Education in order to participate “in any particular matter involving specific parties that is directly and substantially related to her former employer.”

Rajiv J. Shah, Under Secretary for Research, Education and Economics

Waiver granted: November 9, 2009

Rajiv Shah was appointed to the United States Department of Agriculture after working for the Gates Foundation in a variety of positions. He received a memo waiving the paragraph in the ethics pledge that precludes interaction with previous employers (paragraph 2). Because of his waiver, Shah is now allowed to deal with matters that involve the Gates Foundation. However, he is still unauthorized to “participate in any grants or procurement contracts given by USDA to the Gates Foundation, or in any similar transactions that would result in a transfer of Federal funds to the Gates Foundation.”

James H. Shelton, III, Assistant Deputy Secretary for Innovation and Improvement, Department of Education

Waiver granted: April 28, 2009

Shelton, like Margot Rogers, also worked for the Bill & Melinda Gates Foundation. His ethics waiver allows him to participate in dealings concerning the foundation without limitation.

Harold E Varmus, Director of the National Cancer Institute

Waiver granted: September 17, 2010

Harold Varmus was previously the President and CEO of MSKCC, a cancer research and treament institution. Varmus was granted a waiver to participate in meetings or to have communications with MSKCC about particular matters of general applicability or regarding policies that do not constitute particular matters provided the meeting or commucation is “open to all interested parties.”

Naomi Walker, Associate Deputy Secretary, Department of Labor

Waiver granted: May 18, 2009

Prior to her appointment, Naomi Walker worked for the AFL-CIO since 1997. Walker’s ethics waiver grants her the ability to “have individual communications with the AFL-CIO on particular matters of general applicability.” However, for a 2 year period Walker is barred from participating in matters that would be “substantially” related to the AFL-CIO.

Aaron S. Williams, Director of the U.S. Peace Corps

Waiver granted: August 24, 2009

In August 2009, Williams was sworn in as the 18th Director of the U.S. Peace Corps. Prior to being appointed to that position, Williams served on the board of the National Peace Corps Association (NPCA). This conflict of interest was addressed by the ethics waiver, which stated that he is permitted to “participate in or speak at meetings and conferences or other events involving or hosted by the NPCA or its leadership, including fundraising events.” However, Williams is not permitted to have any participation in matters that could affect NPCA’s financial interests.

White House Ethics Pledge Waivers

Robert Bauer, White House Counsel

Waiver granted: May 7, 2010

He was granted a waiver to the requirements of paragraph 2 of the Ethics Pledge (Executive Order 13490), which provides that a covered appointee may not for a period of two years from the date of his appointment participate in any particular matter involving specific parties that is directly and substantially related to his former employers or former clients. Mr. Bauer and Perkins Coie represented the President in his personal capacity and on issues of campaign finance, and Mr. Bauer’s former firm continues to represent the President.

John Brennan, Deputy National Security Adviser for Homeland Security and Counterterrorism

Waiver granted: December 20, 2009

John Brennan is the Deputy National Security Adviser for Homeland Security and Counterterrorism, as well as Deputy Assistant to the President. He was granted an ethics waiver in order to investigate the attempted terrorist attack that took place on December 25, 2009, when a Nigerian man tried to set himself on fire on a flight heading to Detroit, MI. Brennan previously held a position at The Analysis Company (TAC), which has worked to gather research on aviation security. The ethics waiver allows Brennan to use data gathered by TAC during his investigation, but forbids him from communicating with TAC.

Jocelyn Frye, Director of Policy and Projects in the Office of the First Lady

Waiver granted: February 20, 2009

Jocelyn Frye is a former lobbyist; as such, under President Obama’s Ethics Pledge she is ineligible to work for the Administration. However, on February 20, 2009, the Special Counsel to the President granted Frye a waiver that enabled her to work in the Office of the First Lady.

Valerie Jarrett, Senior Advisor to the President

Waiver granted: April 2, 2009

Prior to being named Senior Advisor to President Obama, Valerie Jarrett was in charge of the Chicago 2016 Olympic planning committee. Because of her involvement, Jarrett needed a waiver in order to continue working on bringing the Olympics to Chicago. The waiver states, “Ms. Jarrett’s knowledge and expertise on the United States’ sole Olympic bid for 2016 make her an ideal person to lead Administration efforts in support of this bid.” After being granted the Ethics Pledge waiver, Jarrett was permitted to continue her work on the Olympics while at the White House. Although ultimately Chicago lost its bid for the Olympics, Jarrett used her position to brief President Obama daily on the planning process.

General James L. Jones, National Security Advisor

Waiver granted: April 28, 2010

He was granted an ethics waiver to provide an introduction for former President Bill Clinton at an event hosted by the Atlantic Council of the United States. General Jones served as the Chairman of the Board of Directors of the Atlantic Council until January 2009.

Jonathan Kravis, Associate Counsel, White House Counsel’s Office

Waiver granted: August 13, 2009

Jonathan Kravis was assigned to the White House in order to “respect the interests” of former presidents, in this case President George W. Bush. Kravis’ waiver was granted because a former Bush representative started working for Williams & Connolly LLP, where Kravis had previously worked. Because “Mr. Kravis has developed institutional knowledge on the matters involving the office of former President Bush…the continuity of his office’s coordination with the former President’s office was in the public interest.”

William Lynn, Deputy Secretary of Defense

Waiver granted: January 22, 2009

William Lynn’s former position as a lobbyist violated the Ethics Pledge; however, a waiver was approved on January 22, 2009. Issued only two days after President Obama took office, Lynn’s ethics Waiver was the first to be aproved. Due to public interest and “the current national security situation,” the White House deemed Lynn’s years as a security lobbyist necessary to the administration.

Cecelia Munoz, Director of Intergovernmental Affairs in the Executive Office of the President

Waiver granted: February 20, 2009

Cecilia Munoz is another former lobbyist who received an ethics waiver to enable her appointment in the Administration. Munoz was previously the Vice President of the National Council of La Raza, and has also worked as a community organizer for Catholic Charities groups.

Shailagh Murray, Assistant to the Vice President for Communications

Waiver Granted: May 5, 2011

Murray serves as Assistant to the Vice President for Communications. According to the waiver she “is the primary point of contact between media outlets and the Office of the Vice President.” Murray was granted a waiver with respect to her former employer The Washington Post Company and the subsidiaries it controls. She was granted a waiver of Section 1, Paragraph 2 of the Ethics Pledge, which “provides that a covered appointee may not for a period of two years from the date of her appointment participate in any particular matter involving specific parties that is directly and substantially related to her former employer.”

Chris Weideman, Associate Counsel, White House Counsel’s Office

Waiver granted: August 13, 2009

Weideman was granted an ethics waiver for the same reason that his colleague Jonathan Kravis was. Both men worked former Williams & Connolly LLP, and after a former Bush representative took a position there it might have created a potential conflict. To resolve the matter, Weideman was issued an ethics waiver that allows him to use his knowledge of Williams & Connolly in official matters.

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