ELECTION
This is the big loop hole in the Trump Vance code of ethics
More disclosure from both transition teams would fill this hole
Thanks to the great reporting by Ken Bensinger in the New York Times, we now know a little bit more about the requirements Vice President Kamala Harris and former President Donald Trump have placed on those helping prepare them to govern, should they win in November.
While the two plans share much in common — boiler plate language on good behavior — there are some small differences that raise some big ethical questions.
Publishing a transition ethics plan is nothing new. It is tradition — and today largely required by Congress — that the transition team for each major party candidate develop an ethics plan to reassure the public that conflicts-of-interest — real and apparent — are addressed.
Afterall, the transition team has the responsibility of working out the minute details of the transfer of power: everything from who will be selected for key positions to which federal policies will be jettisoned and which will remain. This is pretty wonky stuff, but the consequences of the work are considerable, and the possibilities for self-dealing and favor-trading are rampant. There are very real chances that a registered lobbyists on loan to the transition team could have a financial stake in these transition decisions and could reap the benefits of their role on the transition as soon as the new president is sworn in.
As a result, members of the transition team — before and after the election — are typically required to sign a statement acknowledging the precautionary rules established by the transition team.
It also is not surprising that the codes of ethical conduct the two teams have made public share a lot in common, though in many cases, the Harris-Walz code is more detailed. For example, they both begin the same way: “I will abide by the highest ethical standards.” The Trump Vance code stops there, while the Harris-Walz code continues “and act in furtherance of the public interest.” It’s not clear this will make a difference, but it does at least nod to the transition team serving in a quasi-public role during this period.
Further down in each plan, both transition teams also require a member of the transition team to disqualify themselves if they’ve lobbied on an matter in the previous 12 months. The Harris-Walz then code goes a step further to include “or if I anticipate I will engage in regulated lobbying activities with respect to such matter in the next 12 months.”
These again are small differences, that may not amount to much. It is hard to know whether future lobbying is something that can be anticipated in any practical way. And, the Harris-Walz team do, as has been the case in the past, allow for exceptions to be granted by the general counsel office.
More significantly, it would seem, are the differences when it comes to the limits on future lobbying activities by members of the transition team. It’s reasonable to worry about the chance a transition team member is instrumental in the appointment of a federal official and then seeks to lobby that very same person immediate after the transition ends.
Cooling off periods are how this concern is addressed, and on this the two transition teams differ. The Harris-Walz team sets a 12 month cooling off period “following the conclusion of my service with the Harris-Walz Transition Team.”
Harris-Walz Transition Team Code of Ethical Conduct
“For 12 months following the conclusion of my service with the Harris-Walz Transition Team, I will not on behalf of any person or entity (except federal, state, local or tribal government entities) communicate with or appear before, for compensation and with the intent to influence, any cabinet department or federal agency on a particular matter for which I had substantial responsibility during my service on the Harris-Walz Transition Team.”
Conversely, the Trump Vance transition code sets a six month cooling off period, half the length of the Harris Walz plan.
Trump Vance 2025 Transition, Inc. Code of Ethical Conduct
“If Donald J. Trump wins the election and I continue working with the Transition, for 6 months after I leave, I will not on behalf of any other person or entity communicate with or appear before, for compensation, any federal department or agency seeking official action for such person or entity with respect to a particular matter for which I had direct and substantial responsibility during my service with the Transition.”
This would have the consequence of former transition team members being permitted to lobby those same agencies by summer 2025, should Donald Trump win the election.
But there’s another subtle difference to pay attention to.
The Trump Vance plan states that the six month cooling off period applies “If Donald J. Trump wins the election and I continue working with the Transition.” The “and” here makes a big difference, because many of those involved in the transition for Trump and Vance are already working. Pre-election transition work happens during the campaign, even if it is kept largely secret. In my book on the 2020–21 Biden-Harris transition team, I interviewed dozens of transition team members who were busy working as early as the summer of 2020, and some didn’t continue on the transition team after the election.
This suggests if a member of the Trump Vance transition team is busy right now (during the pre-election period) figuring out who will be the next secretary of energy or the priorities of a future interior department, but does not continue working on the transition after the election, they are not subject to the code. It seems like a possibility they could lobbying immediately after the inauguration and not violate the ethics plan.
This is a huge loop hole that opens the Trump Vance transition to at least the appearance of conflicts of interest. The Harris Walz plan seems to present no such problem, as its 12 month cooling off period is not contingent on continuing transition work after the election.
Unfortunately, though we now know the two codes of ethics, we do not much more about them and don’t know who has signed them. Neither campaign has made this public, nor from what I gather, the names of whom has been given exceptions. More disclosure from the two transitions would address public concern that the loose rules on the transition teams will lead to self dealing and public corruption in the future.
