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Executive Branch Legal Defense Funds Will Be Disclosed

Public Citizen News / May-June 2019

By Rhoda Feng

This article appeared in the May/June 2019 edition of Public Citizen News. Download the full edition here.

Beginning in the very first year that President Donald Trump stepped into the White House, a tidal wave of ethics and legal scandals began engulfing the administration. Public Citizen warned the U.S. Office of Government Ethics (OGE) that legal defense funds would be created in nearly every executive branch agency and that OGE needs to promulgate rules and regulations governing these funds: who may contribute to legal defense funds, how much and how these funds should be disclosed to the public.

Currently there are no rules governing how these funds operate, other than non-binding and often contradictory advice from OGE. There are not even clear disclosure requirements. But that’s going to change, thanks to Public Citizen.

“A dozen such funds may be established and in full swing, but without adequate disclosure, no one really knows how many legal defense funds have been created, who is donating to the funds and how the money is being spent,” said Craig Holman, government affairs lobbyist with Public Citizen’s Congress Watch division.The potential for donors buying favors with officials is enormous in this stealth arena.”

Until 2017, nearly all legal defense funds have been set up by members of the U.S. Congress who get in trouble with the law or face allegations of ethics violations. Both the U.S. House of Representatives and Senate have established clear rules governing the operations and disclosure of legal defense funds of their members. Congressional legal defense funds have contribution limits. Lobbyists and foreign principals may not donate to these funds; even corporations are prohibited from donating to Senate legal defense funds. And the sources and expenditures of these funds are fully disclosed to the public.

Not so for the executive branch.

That’s why, on Sept. 15, 2017, Public Citizen petitioned the Office of Government Ethics to promulgate similar rules and procedures for executive branch officials.

Rules for executive branch legal defense funds should include: (1) contribution limits, so that no donor may attempt to buy undue influence with the official; (2) prohibitions on accepting money from certain sources, like lobbyists, corporations and foreign nationals; and (3) full transparency of the sources and expenditures of legal defense funds to assure the public that the funds are not being abused to curry political favor.

After a year and a half, the OGE finally heeded Public Citizen’s call. In April, the agency announced that it will draft rules for executive branch legal defense funds addressing disclosure requirements, contribution limits and source prohibitions.

While there is not much of a precedent for the use of legal defense funds by executive branch personnel in the past 10 years, Trump’s presidency has inadvertently focused attention on the lack of clear rules about executive branch legal defense funds.

“The OGE should have drafted rules about legal defense funds for executive branch personnel a long time ago,” said Holman. “Its announcement, however, is better late than never.”