Were the Staffers Who Worked on the Trump EO in the Wrong?

Or Is the Problem the House's Guidance on Transition Work?

By Michael L. Stern

Last Monday, Politico reported that senior Republican staffers on the House Judiciary Committee had been involved in helping to craft President Donald J. Trump’s controversial executive order restricting travel to the U.S. from seven Muslim countries. Although the committee chairman apparently gave permission for them to assist the Trump transition, neither he nor House leadership were informed of the draft executive order or the committee staff’s work on it. This may have been because the staffers signed nondisclosure agreements with the transition team, agreements which presumably purported to bar them from discussing transition work with outsiders, including the members of Congress for whom they worked.

The next day, a group called the “Campaign for Accountability” filed a complaint with the Office of Congressional Ethics, alleging that the staffers may have violated House rules and/or federal law by using congressional resources for matters other than the transaction of House business. It also suggested they could have violated House rules by undertaking outside employment without the permission of their employing office, and that they may have breached professional duties of loyalty owed as lawyers to their congressional client. The complaint, however, fails to cite guidance from the House Ethics Committee that addresses the circumstances in which it is permissible for House staff to assist in the presidential transition. (See Honorable Charles W. Dent & the Honorable Linda T. Sanchez re “Guidance on House Staff Assisting in the Presidential Transition”  Memorandum of Dec. 5, 2016 , herein the “Ethics Transition Memo.”).

Depending on the facts that emerge, it is possible that these staffers violated the Ethics Committee’s guidelines for transition-related work. If they signed nondisclosure agreements without checking with the Judiciary Committee chairman or the Ethics Committee, this was certainly ill-advised. But in my judgment the “scandal” related aspects of this affair are less significant than the institutional problem it reveals. To understand why, let’s take a closer look at four key questions about this story.

Were the Staffers Working For the Transition or On Transition Matters?

The Ethics Transition Memo begins by laying out “three alternatives under which House employees may assist the transition of the new Administration.” The first alternative discussed by the memo is to “assist the transition as part of congressional duties.” Here the Ethics Committee notes that “Members could reasonably determine that having staff assist the incoming Administration would inure to the long-term benefit of their committee, their constituents, or their leadership office, and such assistance could therefore appropriately be deemed to pertain to official congressional business.”

If the Ethics Committee is merely describing a process analogous to the normal interchange between congressional staff and government agencies, its advice seems unexceptionable. Congressional staffers have frequent and ongoing discussions with government agencies for a variety of purposes. They routinely gather information, provide advice, and attempt to influence an agency’s policy in a manner consistent with the viewpoint of their employing Member or office. But it would be somewhat odd to describe this relationship as “assisting” the agencies; in fact, it is often more adversarial than cooperative.

The Ethics Transition Memo explains that under this alternative “House employees would remain responsible to and under the direction of their employing Members,” and “[t]hey would not become employees of the President-elect, the transition, or any person working for the transition.” (emphasis in original). But this guidance may be muddled by the repeated references to “assisting” the transition. If the House Judiciary staff was operating under this alternative, its sole focus should have been on assisting the committee in advancing its policy objectives. If these objectives coincide with those of the transition, that’s wonderful. But it is not the committee staff’s job to assist the transition per se.

One gets the sense that the Ethics Committee may be assuming that members will in essence lend their staff experts to the transition team for substantial periods of time in order to (a) influence the transition’s thinking on key issues and/or (b) generate goodwill for the future. That may be fine, but the guidance should be clear that the staff’s sole duty of loyalty is to their employing members/offices and the House.

If the Staffers Were Working for the Transition, Did They Comply with House Rules for Doing So?

Assuming the House Judiciary staffers were not simply performing their normal congressional duties, this leaves the two other alternatives described in the Ethics Transition Memo for working on transition matters. First, they could have been formally detailed from the House to the transition pursuant to the Presidential Transition Act of 1963 (3 USC 102 note). House detailees retain their House salary and benefits, but by law the Office of the President-elect must reimburse the House for such costs during the detail period. Moreover, the House detailees “become responsible to the President- or Vice President-elect for that period, rather than to their employing Member.” It seems unlikely, however, in the circumstances described that the House Judiciary staff had been formally detailed to the transition.

This leaves the final alternative described in the Ethics Transition Memo. The memo notes that “[a]s long as employees do not engage in activities inconsistent with House rules and congressional duties, they are free to spend non-working hours doing whatever they choose, subject to the approval of their employing Members.” Thus, House staffers may volunteer to assist the transition (with their employer’s approval) on their own time. The memo specifically notes that “House employees may use vacation time accrued pursuant to established office policy or take Leave Without Pay (LWOP) to assist the transition.”

If the House Judiciary staffers were acting as volunteers for the transition, certain limitations would apply. As the Campaign for Accountability complaint notes, such volunteer work should not be performed during congressional working hours or using congressional resources. In addition, there are limits on the ability of House staff to receive compensation for their services to the transition. These limits would likely prevent any but the most junior House staffers from accepting any compensation from the transition.

The Campaign for Accountability also suggests that if the committee staffers were lawyers (which seems likely), they may have had additional duties that restricted their ability to work on transition matters. It is true that House rules would prohibit lawyers from receiving any compensation for legal services from the transition, although as already noted they would likely be barred from receiving compensation in any event. It is also possible that conflict of interest concerns would be heightened for lawyers, but generally I think that any staffers who volunteer to work on the transition, whether or not they are attorneys, have an obligation to avoid a conflict with their congressional duties. This obligation deserves greater emphasis in the Ethics Transition Memo.

Are There Circumstances Under Which it Would be Appropriate to Execute a Nondisclosure Agreement with the Transition?

If the House Judiciary committee staff were “assisting” the transition as part of their congressional duties (i.e., the first alternative set forth in the Ethics Transition Memo), it seems clear that they should not have signed any nondisclosure agreement with the transition. As the memo explains, in this situation the staffers “remain responsible to and under the direction of their employing Members.” It would be inconsistent with this direction, and with the staff’s basic duty of loyalty to the committee and the House, to agree to withhold information from their congressional superiors.

In fairness, the staffers may have viewed these forms as boilerplate, and they may not have considered whether the agreements restricted their ability to communicate within the committee or the House. In hindsight, however, it was clearly a mistake to sign nondisclosure agreements with the transition, particularly without seeking guidance from the House Judiciary committee chairman and the Ethics Committee.

 This conclusion is somewhat less obvious, but still holds true, if the staffers were acting as volunteers for the transition. Even though they then would be responsible to the transition, rather than to their employing Member, for the work performed, they cannot undertake any work for the transition that conflicts with their congressional duties. (As mentioned already, this point should be underscored in the Ethics Transition Memo). If congressional staff are to be permitted to volunteer on the transition, the incoming administration must understand that they are still congressional employees and remain fully subject to congressional rules and discipline. If the staff volunteers learn of information which needs to be shared with their congressional superiors, they must be free to do so. The incoming administration can decide for itself whether it wants to accept congressional volunteers on that basis.

It is only if the staffers are formally detailed to the transition that there might be a case for signing a nondisclosure agreement. (I am assuming here that the transition otherwise has the authority to require and enforce such agreements for its employees, which may or may not be the case). Even then, House detailees would be well-advised to get guidance from the Ethics Committee before signing such agreements.

Does the House’s Guidance on Transition Matters Encourage Divided Loyalties among Congressional Staff? 

At the end of the day, I think this story is less about arguable rules violations or poor judgment on the part of the House Judiciary staffers in question, and more about the House’s willingness to tolerate staff with divided loyalties. The reality is that the House understands that staff working on transition matters are often auditioning for a job in the new administration. But if the House’s own experts are encouraged to “assist” the transition without strict rules ensuring that they will continue to serve Congress first and foremost, the legislative branch is put at a substantial disadvantage.

Congress is thinly staffed as it is. It must be able to count on its own employees to keep it informed of key developments such as the Trump executive order on travel. To be clear, we don’t know at this point how much the Judiciary Committee staffers actually knew about the order, or whether they intentionally withheld information from the chairman or others because of the nondisclosure agreements (or for any other reason). However, this situation clearly illustrates the harm that could occur if congressional staff has one foot in the legislative branch and one foot in the executive.

Unfortunately, this problem is not limited to presidential transitions. As I have noted with regard to congressional lawyers specifically, there is always a possibility that the prospect of future executive branch employment undercuts the willingness of congressional staff to vigorously defend Congress’s interests against executive encroachment: “Any congressional lawyer who has accepted, is seeking, or has a near-term interest in employment with the executive branch faces a potentially serious conflict of interest that could compromise his loyalty to his congressional employer.” (See Michael L. Stern, The Ethical Obligations of Congressional Lawyers, 63 N.Y.L.Rev. 191, 213 (2007))

There is no easy solution to this problem. However, the House could make a start by tightening up its guidance on staff work on presidential transitions. It should make it clear that working on transition matters as part of congressional duties is for the benefit of Congress, not for the benefit of the incoming administration. It should also consider eliminating altogether the alternative of working on a transition as a volunteer. If this step is considered too drastic, it should at least make clear that any work on the transition must in no way compromise the staffer’s congressional duties.

Michael L. Stern served as Senior Counsel in the Office of General Counsel, U.S. House of Representatives, from 1996 to 2004. From 2004 to 2005, he served as Deputy Staff Director for Investigations for the Senate Committee on Homeland Security and Governmental Affairs. In 2006, he was Special Counsel to the House Permanent Select Committee on Intelligence. Mr. Stern blogs about congressional legal issues at http://www.pointoforder.com.