Walter Shaub stepped down as the head of the Office of Government Ethics, but his footing is still firmly in federal accountability.
Shaub, who now works at the Campaign Legal Center as its senior ethics director, unveiled a legislative proposal for the office that he hopes will find bipartisan backing during what he called “an ethics crisis.”
“One of the things I want to work on outside [OGE] is proposals for improving the government ethics program,” Shaub said during a July 28 press conference at the National Press Club in Washington, D.C. “In addition, I think that the crisis we’re facing was experienced very acutely in the government ethics program, but it’s part of a broader assault on the institutions of our representative form of government.”
At the top of Shaub’s list is a prohibition on presidential conflicts of interest.
“It cannot be a recusal requirement like the existing statute, we need our president to participate in everything,” Shaub said. “But you could have a rule that prohibited holding of assets and it would need to have plenty of reasonable exceptions. I’d be ok with the president having more exceptions than even the rank and file employees, because this is … an actual prohibited holdings statute.”
In terms of penalties, Shaub said, “you’re just a violator,” and there could be a requirement that the president who violates the rule simply has to divest his or her assets.
“That’s the cure for violating the rules,” Shaub said.
Rules, principles, and norms
Shaub explained when it comes to the government ethics program, there are three components: rules and regulations, ethical principles, and ethical norms.
While rules and regulations set the bare minimum ethics standards, the ethical principles — OGE has 14 of them — fill in where individual rules might not specifically apply to a particular ethics case.
This could be something like a federal employee not engaging in public service for private gain, Shaub offered by way of example. An agency could fire an employee for misusing their official position to benefit a close friend.
Another principle guides federal workers and leaders to be impartial when working with the public. He pointed to Trump’s tweeting in support of outdoor clothier L.L. Bean, as an example of a misuse of position and abuse of authority.
“Even if it’s not strictly illegal, it’s a departure and that’s a problem,” Shaub said. “These are ethical principles and the departure from them is every bit of a threat as any violation of a specific rule.”
The third component of the ethics program is ethical norms. These include the tradition that all modern presidents have followed in divesting their conflicts of interests. That action sets the tone from the top levels of government, Shaub said.
“When you don’t do that you run into problems,” he said. “It matters because norms are the glue that hold society together.”
Ethics violations are one thing, Shaub said, but a lot of damage can be done just by moving away from ethical norms; what is initially a “shock to the system” could end up becoming the new norm.
Other things Shaub would like to see added to OGE’s toolbox is clarification of its authority over the entire Executive Branch, including the White House and treating it as an executive agency.
Shaub said he would also like to see the office have a subpoena authority enforceable by a court if someone ignores it.
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Another action he’d like to see is the creation of an Office of Inspector General for executive agencies that don’t have an IG — including the White House. Shaub said ideally this IG office would have a special responsibility to the Office of Government Ethics, and would have the independence to decide whether or not to investigate something per the direction of the OGE.
“But if they decline, I’d like them to have to notify Congress and OGE in writing for the reasons they were declining,” Shaub said. “I think having to put your name to that would ensure that OGE had the support it needed but the IG would have the independence they needed.”
Shaub said OGE needs more independence of its own, and needs legislative and budgetary authority, which means it could approach Congress without getting permission from the White House or Office of Management and Budget.
“Just to submit a legislative proposal or budget, you have to go to OMB first,” Shaub said. “I’d like them to be able to send them simultaneously to OMB and the legislative branch, so Congress could have the information it needed without having it filtered.”
Other items on Shaub’s legislative proposal include giving OGE the power to initiate action in court for civil penalties, and “tighten the revolving door” on post-employment for senior employees.
Shaub said he’d also like to prohibit public officials from receiving compensation for the use of their name or family’s name.
Shaub recognized that he would need bipartisan support for his legislative proposal, and said he’d recently had a phone call with Reps. Trey Gowdy (R-S.C.) and Elijah Cummings (D-Md.), chairman and ranking member, respectively, of the House Committee Oversight and Government Reform — which is OGE’s oversight committee — in which they said they would be open to reading a letter that included some of Shaub’s suggestions.
Shaub was a career ethics lawyer with OGE. He worked there as a staff attorney from 2001-04, as a supervisory attorney responsible for OGE’s presidential nominations program from 2006-08, and he served as deputy general counsel from 2008-13. He started his five-year term as OGE director in January 2013.
He said working under Presidents George H. W. Bush, and Barack Obama, the day-to-day interactions with their respective administrations were indistinguishable, and both White Houses were “always incredibly supportive of the government ethics program.”
“These should be no brainers,” Shaub said. “This is advice of an expert who’s done this for years and years. These rules will apply to future administrations. At least so far in our country the White House has passed back and forth between different parties. Congress should want to have a set of rules that will apply to people because a majority can be in the minority tomorrow. Maybe not tomorrow, but eventually.”