Senate GOP’s Scheme To Let Trump Self-Police Ethics

Former President Donald Trump’s top ally in the Senate is working to block the appointment of the government’s top anti-corruption enforcer until after Inauguration Day — a tactic designed to give Trump the power to handpick his own ethics overseer if he wins the election.

In a move reminiscent of Republicans blocking President Barack Obama’s Supreme Court nominee’s confirmation hearings until after the 2016 election, U.S. Sen. Mike Lee (R-Utah) recently declared in a Senate speech that the confirmation of a new ethics chief should not move forward until the election was decided. Lee took the opposite position when Trump had a chance to fill a Supreme Court seat in late 2020, demanding the appointment be made before that year’s election. 

At issue is the top job at the U.S. Office of Government Ethics, the federal agency responsible for monitoring compliance with federal anti-corruption laws, which has been vacant for over a year. The position — which is appointed to five-year terms so that it overlaps administrations — is critical during a presidential transition, since the office vets new White House appointees to make sure they comply with ethics laws. 

That includes deciding whether the president and top White House officials must divest personal financial holdings to comply with laws prohibiting financial conflicts of interest in their government jobs. The office can also offer massive tax breaks to those who divest holdings. 

If Trump appoints SpaceX and Tesla CEO Elon Musk to a post in his administration, an idea both men have floated, the Office of Government Ethics may find itself overseeing conflicts of interest for the world’s richest man, whose companies hold billions in government contracts. As The Lever recently reported, a little-known provision in the tax code could allow Musk to receive a gargantuan tax break if he’s appointed to an official role in a second Trump administration and compelled to divest some of his holdings. 

In September 2023, President Joe Biden nominated David Huitema, who currently manages the State Department’s ethics program, to fill the role at the Office of Government Ethics, stepping in for former director Emory Rounds, a Trump appointee whose term had ended two months earlier.

Yet despite Huitema’s seasoned career as an ethics lawyer, more than a year after his nomination, he has still not been confirmed to serve as the next director of the office — thanks in part to interference by Lee, a one-time opponent of Trump who has since become one of his most ardent supporters and is considered a likely candidate for attorney general if Trump comes into power.

With the 2024 election now days away, insiders say a leadership vacuum at the Office of Government Ethics makes it increasingly likely that the job will remain vacant until the next administration comes into power — potentially allowing Trump, should he win on Nov. 5, to handpick his own ethics chief.

“Traditionally, that position has always been filled prior to the transition,” said Virginia Canter, the chief ethics counsel at Citizens for Responsibility and Ethics in Washington, a watchdog group that fights against political corruption and dark money. That has left uncertainty as the election nears, Canter said.

The Office of Government Ethics is meant to fight political corruption in the executive branch. It is charged with enforcing ethics laws for federal officials — including the president and the president’s closest circle. It holds officials accountable for divesting from conflicts of interest and ensures they disclose their business dealings and finances to the public.

Experts have long warned that the agency does not have the authority or resources it needs to properly fight corruption. During the first Trump administration, the former president battled with the ethics chief at the time, Walter Shaub, attempting to evade disclosure of corporate lobbyists working for the administration and resisting disclosure of his own finances. 

This election season, Trump is again flouting anti-corruption rules. His campaign has so far failed to sign a White House transition plan, including ethics rules designed to avoid conflicts of interest, to move forward with a transfer of power after the November election.

Under a second Trump administration, the Office of Government Ethics would again have to face the former president — and his political appointees. This time around, Trump’s inner circle may include Musk. 

“I think it’s very likely that in a second Trump administration, it would be a Trump appointee making the decision on whether Elon Musk could have a massive tax break,” Shaub, the former director of the Office of Government Ethics, told The Lever.

“There’s Real Irony”

Shaub departed the agency in 2017 amid mounting tension between the Trump administration and ethics officials. He left with a warning: Changes to federal ethics law, including more stringent conflict-of-interest disclosure and divestment standards, were needed to prevent political corruption.

“It’s hard for the United States to pursue international anticorruption and ethics initiatives when we’re not even keeping our own side of the street clean,” Shaub told the New York Times at the time.

Shaub was succeeded by Rounds, a fairly uncontroversial Trump appointee who picked some of his own fights with the Trump administration during his time in office. Rounds’ five-year term expired in July of last year, leaving a vacancy under Biden.

“Emory Rounds is a man of integrity who believes in the government ethics program,” Shaub said. “He did honor to the job while he held it. Trump gets no credit for that.” He added that the Trump administration had picked Rounds, who served in the Bush administration, “without realizing that he would uphold his oath.”

Initially, Biden’s pick for the job — Huitema — seemed to receive little attention. In his confirmation hearing in April, he received run-of-the-mill questions about his priorities for the agency. He told lawmakers that the Office of Government Ethics “finds itself underfunded, understaffed, and over-missioned,” and was likely to experience a “surge” in workload when the next presidential administration came into power.

But when the Senate tried to bring a vote on Huitema’s nomination on Sept. 25, it became apparent that some GOP lawmakers did not want his candidacy to move forward.

“We are now just a few weeks away from a presidential election, a presidential election that will determine who will serve as president of the United States for the next four years,” Lee told fellow lawmakers as he objected to Huitema’s confirmation.

Lee argued that “we should wait to see who is elected” before Huitema was confirmed, referencing past battles between the Office of Government Ethics and Trump and his allies. Otherwise, it risked “further weaponizing our government” against Trump. 

Lee’s office did not return a request for comment from The Lever.

“There’s real irony in Senator Lee’s objection,” Shaub said, noting that Lee happily supported Supreme Court Justice Amy Coney Barrett’s nomination just before the election in 2020. “I don’t recall him being concerned about giving the winner of an election the chance to fill a vacancy when he was considering [Barrett’s] nomination.”

In September 2020, Lee appeared on Fox News and said, “I expect that we are going to see Amy Coney Barrett being picked by the president, and I would support that nomination wholeheartedly.”

Lee’s objection to Huitema’s appointment proved successful. The nomination has not moved forward since the hearing, leaving a likely vacancy for the election.

All the while, experts say the need to reform government ethics rules still remains. Before Biden took office, he promised wide-ranging ethics reforms, including stronger conflict-of-interest laws and expanded disclosure standards. He even promised an entirely new government agency — the “Commission on Federal Ethics” — to enforce and oversee ethics rules.

Yet while Biden did issue some new ethics rules targeted at lobbyists and the corporate “revolving door” in government at the beginning of his term, he has not fulfilled his biggest promises on matters like financial disclosures and enforcing ethics standards, even as a potential second Trump presidency looms. 

For her part, Vice President and Democratic presidential nominee Kamala Harris makes no mention of government ethics in her campaign platform.

And now, Trump could inherit a leaderless ethics agency. Shaub warned that his pick likely “wouldn’t hold a candle” to Rounds, the ethics chief during his first administration.

“Trump will absolutely pick someone terrible,” Shaub said.