Federal ethics watchdog says Stephen Bannon's ethics waiver may not be valid because it is 'unsigned and undated'

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published 14 June 2017

The Office of Government Ethics revealed in a letter sent Tuesday that President Trump's chief strategist Stephen Bannon's ethics waiver remains "unsigned and undated." The letter was sent in response to four Democratic senators' request for information about which ethics requirements pertain to Bannon.

An executive order signed by Trump specifically requires every appointee to sign an ethics pledge agreeing not to "participate in any particular matter involving specific parties that is directly and substantially related to a former employer or client" for two years after their appointment. However, the agreement allows appointees to sign a waiver, freeing them from certain restrictions imposed in the ethics pledge. That waiver must be "'signed'" and "'shall take effect' after it is signed," the OGE explained in the letter.

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These deficiencies are inconsistent with the language of Executive Order 13770. As discussed earlier, the order expressly provides that a waiver is effective only after it has been signed: "A waiver shall take effect when the certification is signed by the president or his designee." More importantly, the putative retroactivity is inconsistent with the very concept of a waiver, which is to take decisions regarding the appropriateness of an employee's participation in covered matters out of the employee's hands. By engaging in a prohibited matter at a time when the appointee does not possess a waiver, the appointee violates the rule. Although the White House may later decide that such a violation does not warrant disciplinary action, the subsequent issuance of a waiver would not change the fact that a violation occurred. [United States Office of Government Ethics]

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