Ethics Changes for Trump Administration Appointees

In one of the first actions of his second term, President Trump rescinded the Biden ethics executive order for political appointees in the presidential administration. Unlike in 2017, President Trump has not yet issued his own ethics executive order. If he does not, Trump Administration appointees will be subject to the same gift and post-employment rules that apply to other federal officials and employees. Below are key considerations for incoming and former political appointees and those in the private sector who interact with them.

Biden Ethics Executive Order

In 2021, President Biden followed a tradition established by his recent predecessors and issued a sweeping executive order (the “Biden EO”) implementing ethics requirements for political appointees in his administration. The Biden EO required political appointees to sign a pledge to comply with post-employment and gift restrictions stricter than those already imposed by federal law. 

For example, incoming political appointees who were registered under the Lobbying Disclosure Act (“LDA”) or Foreign Agents Registration Act (“FARA”) within two years before their appointment were prohibited from engaging in certain activities in their administration positions. These former lobbyists and foreign agents were subject to a two-year prohibition on participating in particular matters on which they previously lobbied government officials and seeking or accepting employment with agencies that they previously lobbied.  

Political appointees leaving the Biden Administration were also subject to more stringent post-employment restrictions than those imposed by federal law:

• for two years after terminating employment, former appointees could not lobby their former agencies and senior White House staff;
• for one year after terminating employment, former appointees could not assist the lobbying activities of others, including behind the scenes advice or “shadow lobbying”; and
• for the remainder of the Biden administration or two years after terminating employment, whichever is later, appointees could not engage in activities requiring FARA registration.

During the Biden Administration, most gifts to political appointees from federal lobbyists and their employers were also prohibited. The Biden EO prohibited political appointees from utilizing exceptions to federal gift prohibitions that are available to career civil servants. For example, political appointees could not accept gifts valued at less than $20 per occasion or free meals and entertainment at “widely attended gatherings” (defined below).  

Complying with ethics rules under the Trump Administration

Following President Trump’s rescission of the Biden EO, Biden political appointees should no longer be bound by the executive order’s post-employment restrictions; however, some could choose to voluntarily comply with their ethics pledge. Additionally, Biden and Trump appointees seeking employment in the private sector will still be required to comply with federal post-employment restrictions under 18 U.S.C. § 207. This criminal statute prohibits, in part, certain advocacy activities on behalf of private sector clients by former administration officials. For instance, a former executive branch official may not lobby any federal department or agency in connection with a particular matter that he or she supervised during the final year of their government service. This cooling off period lasts for two years after an official leaves executive branch service. The statute also imposes a lifetime ban on lobbying any federal official regarding a particular matter in which the former official personally and substantially participated while serving in the federal government. Please note that agency-specific regulations may impose additional post-employment restrictions on former administration officials. 

There should also be fewer barriers to entry for individuals considering political appointments in the Trump Administration.  Unless President Trump issues a new executive order or implements a new policy, former lobbyists and foreign agents should not be prohibited from accepting immediate appointments to agencies they recently lobbied. 

Finally, Trump Administration political appointees will be bound by the same gift restrictions as other federal executive branch employees under 5 C.F.R. part 2635. Although the federal ethics regulations prohibit executive branch employees from accepting many forms of gifts and benefits from outside sources, the following exceptions should remain available to career officials and Trump Administration political appointees:

• gifts with an aggregate market value of $20 or less per occasion and $50 in the aggregate per calendar year;
• modest items of food and non-alcoholic refreshments, such as soft drinks, coffee and pastries (does not allow for the provision of meals);
• greeting cards and items with little intrinsic value, such as plaques, certificates or trophies intended solely for presentation;
• gifts specifically authorized by statute; and
• admission to a widely attended gathering if the appointee’s designated agency ethics official provides pre-approval. A widely attended gathering is an event attended by a large number of persons representing a diversity of views or interests and features programming that relates to the attending government official’s duties or responsibilities. 

Please note that agency-specific regulations and other federal laws could further limit gifts to executive branch officials depending upon the identity of the donor and circumstances of the gift. We recommend consulting with counsel before providing any gifts to federal officials or employees. 

The Akin Political Law Team will continue to monitor any developments that impact our clients, including any ethics executive order adopted by the Trump Administration. We are available to advise on these questions and draft policies for complying with federal, state and local ethics rules.