The Office of Government Ethics (OGE) is crafting a new advisory on legal defense funds for the first time in 24 years, according to an official with knowledge of the plan. The updated guidance addresses a controversy that recently arose about the agency’s policies on the funds and comes at a critical moment for some White House staff who are racking up bills from attorneys.
The forthcoming OGE guidance will make clear that the identities of donors to these funds should be disclosed, said the official, who has seen the draft document.
It will also call for political appointees to comply with the Trump administration’s ethics pledge, which prohibits gifts from lobbyists.
The document will not change long-standing practice and advice OGE has been providing for at least 20 years. But the official said OGE wanted to formalize its position on a 1993 legal opinion that allowed anonymous donations. Changes to a header on that document this year stoked controversy and questions over whether the agency currently permits anonymous donations, the official said.
But the revised guidance may leave some questions unanswered, because the agency is facing a new set of circumstances it has rarely had to consider, according to the source.
Legal defense funds are usually established for individual federal employees.
For example, outside groups might want to establish funds to help current White House employees and former campaign officials who are no longer government employees. The existing rules stipulate that current employees and political appointees have to comply with a stricter set of requirements.
The funds could be crucial for White House officials who earn government salaries but have to pay their own attorney’s fees. Legal bills could quickly add up for staffers if they sit for questioning as part of investigations such as special counsel Robert Mueller’s Russia probe.
CNN previously reported that Mueller’s team approached the White House about questioning officials who were on Air Force One when the initial misleading statement was drafted about Donald Trump Jr.’s 2016 meeting with a Russian lawyer at Trump Tower.
Current and prior ethics officials say the 1993 opinion, which sparked the current debate over OGE’s standards on undisclosed donors, is outdated because the opinion contains language, for example, that allows for anonymous pledges.
A White House aide told CNN last week the White House is not assisting in setting up any legal defense funds and that it is seeking to comply with OGE’s guidance, including not accepting funds from anonymous donors.
Although OGE does not have enforcement authority over violations committed by legal defense funds, the agency guides the White House to help ensure staff does not run afoul of ethics rules.
“In the past, OGE worked with the White House and the individual who created the legal defense fund to make sure that the fund would accept only permissible donations,” said Marilyn Glynn, who served as OGE’s General Counsel from 1997-2008, including during the time when OGE advised the Clinton administration on legal defense funds.
She said, for example, that a document creating the legal defense fund would have to clearly state that it wouldn’t accept donations from prohibited sources that are seeking to influence the employee’s agency.
“The Clinton administration and the legal defense fund creators worked with OGE to safeguard employees from any potential violations,” Glynn said.
And she said OGE asked the funds to share donor identities with the public.
“While there was no specific mechanism for disclosure to the public of the donations made to a legal defense fund, OGE required that the fund make some kind of periodic public disclosure of the donors to the fund,” said Glynn.
The Republican National Committee’s legal defense fund in August paid more than $230,000 to cover some of President Donald Trump’s legal fees associated with the Russia probe. The fund also gave nearly $200,000 toward Donald Trump Jr.’s legal bills.
White House officials who have obtained private attorneys include President Trump, Vice President Mike Pence, White House counsel Don McGahn, senior adviser Jared Kushner and communications director Hope Hicks.
