Updated 9:30 a.m., Jan. 29
In signing an executive order imposing tough ethics standards on executive branch employees, President Trump followed a path laid by the two Democratic presidents who preceded him, almost word for word.
"This is a five-year lobbying ban," Trump said at the ceremony where he signed this and two other orders. "It's a two-year ban now, and it's got full of loopholes, and this is a five-year ban."
He joked that the senior staff standing near him for the signing had "one last chance to get out" before they would have to stick to limits on lobbying laid out in the directive.
"This was something, the five-year ban, that I have been talking a lot about on the campaign trail," Trump added. By the end of his campaign, supporters were chanting "drain the swamp," so this order, like many of his others in the past week amounts to Trump trying to show he's keeping a campaign pledge.
But what Trump is doing is derivative of what his two immediate Democratic predecessors did. On his first full day in office, Jan. 20, 1993, President Bill Clinton signed an executive order titled, "Ethics Commitments by Executive Branch Appointees." Twenty four years, a week and a day later, President Trump signed an order bearing the exact same title.
But the similarities don't stop there. As Trump's team drafted his order on ethics, they appear to have borrowed heavily from the language used in orders signed by both Clinton and President Obama. Obama also pulled from Clinton, in parts and the ethics directive signed by President George W. Bush is nearly identical to the one signed by his father twelve years earlier. But that's less surprising given those were presidents using the language of their predecessor from the same party. Perhaps more importantly, Trump not only seems to be lifting from Democratic presidents' language, but they are presidents he has condemned, including for not "draining the swamp."
"The story here is not the copying per se, it is the claim Trump has been making that he is doing something really different, new, and righteous when, apparently, in many respects he is actually copying Democrats he so thoroughly condemned as corrupt," said John Woolley, a professor at UC Santa Barbara and co-director of the Presidency Project.
The irony, he points out, is that those Democrats had also promised their own version of draining the swamp in response to the Republican president who preceded them.
Clinton ended up revoking his order in his final weeks in office, allowing his appointees to go straight into lobbying after all. And the Obama administration granted some waivers to its ethics order. It remains to be seen, of course, if Trump sticks hard and fast to his ban.
Trump criticized Clinton for backing off the ban during the 2016 presidential campaign. "President Clinton did what the Clintons always do — he rigged the system on his way out," Trump said in a statement in October of last year. "Clinton lifted the executive order so the Clintons and their cronies like John Podesta could start raking in cash." (Podesta was Clinton's chief of staff in the White House, founded a lobbying and public affairs firm with his brother and later became Hillary Clinton's campaign chairman.)
The Trump administration did not reply to a request for comment.
"When a new president's executive order deals with a subject of operational concern to multiple administrations, it's not surprising that the president's lawyers would look to previous iterations as models," wrote Peter Shane, an Ohio State University constitutional law professor, in an email to NPR after reviewing the overlapping language. Shane focuses on separation of powers law and the application of law to the presidency.
"For a Republican president, reiterating the restrictive obligations prior Democratic presidents imposed on their appointees has the double advantage of using provisions vetted by other lawyers and apparently deemed acceptable to the political opposition," Shane added.
Below, we were able to trace back each bullet point in section one of Trump's order to either Clinton or Obama — nearly verbatim. For clarity, Trump's order language is in bold, Clinton's is in italics and Obama's is plain text:
Trump:
"Section 1. Ethics Pledge. Every appointee in every executive agency appointed on or after January 20, 2017, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee:"
Obama:
"Section 1. Ethics Pledge. Every appointee in every executive agency appointed on or after January 20, 2009, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee:"
Clinton:
"Section 1. Ethics Pledges. (a) Every senior appointee in every executive agency appointed on or after January 20, 1993, shall sign, and upon signing shall be contractually committed to, the following pledge ("senior appointee pledge") upon becoming a senior appointee:"
Trump:
"As a condition, and in consideration, of my employment in the United States Government in an appointee position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law:"
Obama:
"As a condition, and in consideration, of my employment in the United States Government in a position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law:"
Clinton:
"As a condition, and in consideration, of my employment in the United States Government in a senior appointee position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law:"
Trump:
"2. If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions."
Obama:
"4. Revolving Door Ban Appointees Leaving Government. If, upon my departure from the Government, I am covered by the post employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, I agree that I will abide by those restrictions for a period of 2 years following the end of my appointment."
Trump:
"3. In addition to abiding by the limitations of paragraphs 1 and 2, I also agree, upon leaving Government service, not to engage in lobbying activities with respect to any covered executive branch official or non-career Senior Executive Service appointee for the remainder of the Administration."
Obama:
"5. Revolving Door Ban Appointees Leaving Government to Lobby. In addition to abiding by the limitations of paragraph 4, I also agree, upon leaving Government service, not to lobby any covered executive branch official or non career Senior Executive Service appointee for the remainder of the Administration."
Trump:
"4. I will not, at any time after the termination of my employment in the United States Government, engage in any activity on behalf of any foreign government or foreign political party which, were it undertaken on January 20, 2017, would require me to register under the Foreign Agents Registration Act of 1938, as amended."
Clinton:
"3. I will not, at any time after the termination of my employment in the United States Government, engage in any activity on behalf of any foreign government or foreign political party which, if undertaken on January 20, 1993, would require me to register under the Foreign Agents Registration Act of 1938, as amended."
Trump: 5.
"I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee."
Obama:
"1. Lobbyist Gift Ban. I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee."
Trump:
"6. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts."
Obama:
"2. Revolving Door Ban All Appointees Entering Government. I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts."
Trump:
"7. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 6, I will not for a period of 2 years after the date of my appointment participate in any particular matter on which I lobbied within the 2 years before the date of my appointment or participate in the specific issue area in which that particular matter falls."
Obama:
"3. Revolving Door Ban Lobbyists Entering Government. If I was a registered lobbyist within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment:
"(a) participate in any particular matter on which I lobbied within the 2 years before the date of my appointment;
"(b) participate in the specific issue area in which that particular matter falls; or
"(c) seek or accept employment with any executive agency that I lobbied within the 2 years before the date of my appointment."
Trump:
"8. I agree that any hiring or other employment decisions I make will be based on the candidate's qualifications, competence, and experience."
Obama:
"6. Employment Qualification Commitment. I agree that any hiring or other employment decisions I make will be based on the candidate's qualifications, competence, and experience."
Trump:
"9. I acknowledge that the Executive Order entitled 'Ethics Commitments by Executive Branch Appointees,' issued by the President on January 28, 2017, which I have read before signing this document, defines certain terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that Executive Order as a part of this agreement and as binding on me. I understand that the obligations of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Government service."
Obama:
"7. Assent to Enforcement. I acknowledge that the Executive Order entitled 'Ethics Commitments by Executive Branch Personnel,' issued by the President on January 21, 2009, which I have read before signing this document, defines certain of the terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that Executive Order as a part of this agreement and as binding on me. I understand that the terms of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Federal Government service."
Clinton:
"2. I acknowledge that the Executive order entitled 'Ethics Commitments by Executive Branch Appointees,' issued by the President on January 20, 1993, which I have read before signing this document, defines certain of the terms applicable to the foregoing obligations and sets forth the methods for enforcing them. I expressly accept the provisions of that Executive order as a part of this agreement and as binding on me. I understand that the terms of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Federal Government service."
Interestingly, when it came to picking language for the "waivers" section of the order, Trump's team chose the language used by Clinton, with one notable exception. Trump's executive order doesn't require waivers to be published in the Federal Register, meaning it will be harder for the public and press to determine whether the Trump administration is taking advantage of the loopholes written into the executive order. Obama's order didn't require the waivers to be published in the Federal Register either, but the Obama administration had a practice of posting them on the internet and required an annual report from the Office of Government Ethics. Trump's doesn't contain the reporting language.
Trump:
"Sec. 3. Waiver. (a) The President or his designee may grant to any person a waiver of any restrictions contained in the pledge signed by such person.
"(b) A waiver shall take effect when the certification is signed by the President or his designee.
"(c) A copy of the waiver certification shall be furnished to the person covered by the waiver and provided to the head of the agency in which that person is or was appointed to serve."
Clinton:
"Sec. 3. Waiver. (a) The President may grant to any person a waiver of any restrictions contained in the pledge signed by such person if, and to the extent that, the President certifies in writing that it is in the public interest to grant the waiver.
"(b) A waiver shall take effect when the certification is signed by the President.
"(c) The waiver certification shall be published in the Federal Register, identifying the name and executive agency position of the person covered by the waiver and the reasons for granting it.
"(d) A copy of the waiver certification shall be furnished to the person covered by the waiver and filed with the head of the agency in which that person is or was appointed to serve."
Ethics watchdogs are offering a mixed reaction to the Trump executive order. In a joint statement Citizens for Responsibility and Ethics in Washington Chair Norman Eisen and Vice-Chair Richard Painter say that "while there are things to like in the Trump [executive order], it tears two major loopholes in the Obama executive order on ethics it replaces."
They say it removes Obama's ban on lobbyists going to work for the agencies they had lobbied and also gets rid of revolving door restrictions on people who don't go on to become registered lobbyists but do work to "influence the system." Eisen and Painter call it "shadow lobbying."
They conclude that "Mr. Trump's [executive order], while it has some positive features, does not live up to his promise to drain the swamp."
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