On Jan. 28, President Donald Trump issued Executive Order (EO) 13770, including an ethics pledge similar to the pledge in President Barack Obama’s EO 13490, which it superseded. Organizations that employ government relations professionals should carefully consider the postemployment provisions of Trump’s EO, which are more broadly restrictive of appointees leaving the administration than Obama’s EO. Other similarities and differences also are worth noting.
Which provisions in EO 13770 are more restrictive than EO 13490? Section 1(4) prohibits former Trump appointees “at any time after the termination of my employment” from engaging “in any activity on behalf of any foreign government or political party” that would require registration under the Foreign Agents Registration Act (FARA). President Obama’s EO did not contain any provision directed at the representation of foreign governments. Some have interpreted this provision as a lifetime ban.
No representation of foreign governments. FARA requires registration and reporting for “political activities,” which basically means “influencing” (i.e., lobbying) “any agency or official of the Government of the United States” on behalf of a foreign government or political party.1 EO 13770 would bar appointees from engaging in “political activities” that require registration under FARA after leaving the Trump administration. This ban is much broader than the lobbying covered by the Lobbying Disclosure Act (LDA), which is limited to direct lobbying communications to “covered” legislative and executive branch officials. In addition to communications with these officials, FARA applies to influencing career civil servants in all executive branch agencies; these employees are not “covered” by LDA.
Political activities also includes influencing “any section of the public within the United States” with reference to public policies or relations with a foreign government. This would likely include grassroots lobbying, which LDA does not cover, and it could have other surprising consequences. For example, the Department of Justice (DOJ) FARA website includes a summary of an advisory opinion that requires registration for “economic development activity within the United States on behalf of a local jurisdiction of a foreign government,” which involves dissemination of information within the United States for the purpose of attracting investment for a project.2 Financial services companies that might wish to hire a former Trump appointee to raise funds for such projects should consider whether EO 13770 would bar such activity in light of the DOJ opinion.
Also, FARA is not limited to political activities. It applies to public relations counsel, publicity agents and political consultants, who may engage in activities barred by EO 13770 that do not include lobbying government officials. For example, the term “political consultant” means someone “informing or advising any other person with reference to the domestic or foreign policies of the United States….” Former Trump appointees may be unable to become unregistered strategic policy advisers for foreign governments, including government-owned corporations, while EO 13770 applies. Moreover, FARA, unlike LDA, requires a short form registration for individuals that have any non-clerical role in representing or advising the foreign government. This sweeps in partners, officers, directors and employees of a FARA registrant “unless he [or she] engages in no activities in furtherance of the interests of the registrant’s foreign principal.” That is far broader that the registration requirement under LDA.
A broader prohibition on postemployment lobbying and strategic counseling. Sections 1(1) and (3) of EO 13770 prohibit former appointees from engaging for five years in “lobbying activities” with respect to the agency in which they were appointed to serve and with respect to any “covered executive branch official or any non-career Senior Executive Service appointee for the remainder of the Administration.” Section 1(3) is essentially identical to paragraph 5 of the Obama EO with one very important difference. The Obama order forbade former appointees from lobbying as defined by LDA. This included a threshold 20 percent requirement that allows many individuals to conduct some lobbying but still avoid registration. In the years after President Obama’s EO was issued, the number of registered lobbyists declined substantially as formerly registered individuals more carefully applied the 20 percent requirement to their own activities.
In EO 13770, “lobbying activities” is defined by LDA but with important qualifications that enlarge its scope. In LDA, “lobbying activities” explicitly includes “lobbying contacts.” Because the Trump definition does not depend on LDA registration, the 20 percent threshold does not apply, and even one communication covered by sections 1(1) and (3) is prohibited for either five years or the entire Trump administration, depending on which provision applies. In addition, “lobbying activities” includes any “preparation and planning activities, research and other background work that is intended, at the time it is performed, for use in [lobbying] contacts, and coordination of the lobbying activities of others.” That means that former Trump appointees may not engage in behind-the-scenes activities that allow many former senior government officials from other administrations to exercise significant influence without registering under LDA.
The definition of “lobbying activities” in EO 13770 takes several other steps to broaden the effect of sections 1(1) and (3) on former Trump appointees. First, there are 19 exemptions from the definition of “lobbying contact” in LDA.3 These exemptions narrow the scope of “lobbying activities” in LDA because an activity not “in support of such [lobbying] contacts” cannot be a “lobbying activit[y].”4 The EO, however, allows only certain of these LDA exemptions to apply to “lobbying activities” as defined in the EO. Thus, it broadens the scope of prohibited “lobbying activities” for former Trump appointees. The LDA exemptions that continue to apply are “a judicial proceeding; a criminal or civil law enforcement inquiry, investigation, or proceeding; or any agency process for rulemaking, adjudication, or licensing, as defined in and governed by the Administrative Procedure Act.” Former Trump appointees may engage in such activities presumably because they are all on the record, and the role of the former Trump employee will be public.
That means that former Trump appointees cannot use other LDA exemptions to avoid the EO. Some of these exemptions are appropriately swept into the definition of “lobbying activities” in the EO, such as a communication regarding the “status” of a matter without “an attempt to influence.”5 Thus, a former Trump appointee would be barred from calling former colleagues still in the administration regarding the “status” of a matter because the very fact of the call by a former appointee is itself an influencing event. Other LDA exemptions included in the order’s definition of “lobbying activities” may do more harm than good. For example, former Trump appointees would be barred from writing media opinions that discuss the policies of their former agency and from testifying before Congress regarding the policies of their agencies.6
Overall, the provisions discussed above could sharply curtail the activities of former Trump appointees. Law firms, lobbying firms and other business organizations that have federal government relations employees may be less inclined to hire former Trump administration appointees for such positions as they consider the reach of these provisions.
Which provisions are similar to those in EO 13490 but require comment? Many provisions in EO 13770 seem the same or almost the same as provisions in EO 13490. However, President Obama’s order received extensive elaboration by the White House counsel and the Office of Government Ethics. The lawyers responsible for government ethics in the Office of the White House Counsel are now in place; however, there has not been a change in the Director of the Office of Government Ethics (OGE), which normally occurs with a change in administrations. Thus, it may be too soon to know how certain provisions in EO 13770 will be administered even though they seem identical to those in EO 13490.
The limitations on accepting gifts by Trump appointees requires further explanation. Section 1(5) of EO 13770, which prohibits the acceptance of gifts, and section 2(k), which defines a gift, are identical to the gift provisions in President Obama’s EO. However, during its first term, the Obama administration limited the prohibition on gifts through OGE announcements. Early on, charitable organizations exempt from taxation by Internal Revenue Code § 501(c)(3) were exempted from the EO’s gift prohibition by OGE interpretation as long as the gift could be accepted under the Standards of Conduct applicable to all executive branch officials and employees. This exemption was based on the limitations on lobbying by section 501(c)(3) organizations. It remains to be seen whether the Trump administration will adopt this interpretation for its gift ban.
The reduced limitation on communications by senior officials. Other commentators have noted that section 1(2) of EO 13770 imposes only a one-year ban on communications by former Trump administration appointees with their former agency based on 18 U.S.C. § 207(c), compared with a two-year ban in section 1(4) of EO 13490 based on the same statute. However, as discussed above, in connection with the scope of sections 1(1) and (3), the prohibition on “lobbying activities” generally prohibits most communications with a former appointee’s former agency, which are covered by section 207(c), for five years. Thus, there may not actually be a reduction in prohibited contacts with a Trump appointee’s former agency even though the application of section 207(c) was shortened to one year.
There are additional differences between the two EOs, such as different waiver provisions. It remains to be seen, however, how the administration interprets and enforces the Trump EO.
1 22 U.S.C. § 611(o).
3 2 U.S.C. § 1602(8)(B).
4 2 U.S.C. § 1602(7).
5 2 U.S.C. § 1602(8)(B(v)).
6 2 U.S.C. § 1602(8)(B(iii) and (vii)).
If you have any questions regarding this Sidley Update, please contact the Sidley lawyer with whom you usually work, or
Michael A. Nemeroff
Kyle J. Fiet
To receive Sidley Updates, please subscribe at www.sidley.com/subscribe.
Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.
Attorney Advertising - For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000.