White House Waivers May Have Violated Ethics Rules

Stephen K. Bannon, center, President Trump’s chief strategist, in April. Credit Al Drago/The New York Times

The Trump administration may have skirted federal ethics rules by retroactively granting a blanket exemption that allows Stephen K. Bannon, the senior White House strategist, to communicate with editors at Breitbart News, where he was recently an executive.

The exemption, made public late Wednesday along with more than a dozen other ethics waivers issued by the White House, allows all White House aides to communicate with news organizations, even if they involve a “former employer or former client.”

The waiver, which was undated, did not mention Mr. Bannon specifically, but appeared to benefit him by potentially dislodging him from a pending ethics complaint over his past discussions with Breitbart editors. It would also free him from restrictions on his future communication with the conservative media company.

The waiver, and the fact that it remains unclear when it was originally issued, seemed unusual to Walter M. Shaub Jr., the director of the Office of Government Ethics, who questioned its validity.

“There is no such thing as a retroactive waiver,” Mr. Shaub said in an interview. “If you need a retroactive waiver, you have violated a rule.”

A spokeswoman for the White House did not respond to a request for comment. The ethics waivers had prompted a dispute between the White House and the ethics office, which pressed the administration to make them public. The waivers reveal what past work might conflict with aides’ new official duties.

In January, President Trump signed an executive order that put in place stringent ethics rules for his political appointees like Mr. Bannon. Under the policy, Mr. Bannon would be barred from contacting Breitbart employees for two years to discuss issues that were under his purview while he was an executive there.

But Mr. Bannon continued those communications, including with Breitbart editors, after beginning his job as Mr. Trump’s chief strategist on Jan. 20, according to a complaint by Citizens for Responsibility and Ethics in Washington, a liberal group.

Some critics have raised concerns about Mr. Bannon’s ties to Breitbart, which he helped build into a formidable conservative media force before leaving last August to join Mr. Trump’s presidential campaign. The complaint alleged that Mr. Bannon’s discussions with the media organization — in his official role as chief strategist — “resulted in Breitbart receiving preferential access to senior members of the Trump administration.”

The complaint was filed with the White House Counsel’s Office, which has the ability to investigate and issue a punishment, if it deems one necessary. It has not commented publicly on the complaint.

But in another recent case, after complaints from several groups, the counsel’s office disclosed that it found that another top adviser, Kellyanne Conway, had acted “inadvertently” by promoting the brand of Ivanka Trump, Mr. Trump’s daughter, during an interview on Fox News in February. It said Ms. Conway was “highly unlikely” to err again.

The Office of Government Ethics, which is the chief ethics monitor for the federal government, does not have the authority to investigate complaints. It did issue an opinion during the Obama administration maintaining that retroactive ethics waivers were not allowed, and noted several instances where they appeared to have been granted after the fact.

“Waivers and authorizations must be issued prospectively in order to be valid,” Don Fox, the general counsel of the ethics office, wrote in April 2010. He wrote that the process of evaluating waivers was one of the more significant duties of ethics officials. “Both the individual employee’s interests and those of the government are best served when this process is carried out in a careful and consistent manner.”

Mr. Shaub, the ethics monitor, said he was concerned that the media organization waiver, and a number of others made public on Wednesday, did not include dates, making it impossible to tell when they were issued.

“It leaves us unable to evaluate if the waiver was issued before or after you engaged in conduct that would otherwise be prohibited,” Mr. Shaub said.

For example, there is no date on a broad waiver allowing senior White House employees to have contacts with an assortment of political organizations — including ones where they may have worked, such as the president’s campaign or the Republican Attorneys General Association.

Richard W. Painter, a White House ethics lawyer in the George W. Bush administration, who has been critical of the Trump administration’s approach to ethics, said that backdating was not an acceptable approach.

“The only retroactive waiver I have ever heard of is called a pardon,” Mr. Painter said in an email.

In: nytimes