Executive Order 13770: Ethics Pledge

What the Executive Order Says

Executive Order 13770 is entitled "Ethics Commitments by Executive Branch Appointees" and was issued on January 28th, 2017.  It has 6 sections

Section 1

This section provides the ethics pledge that has to be signed by every appointee in the executive branch.  There are 8 subclauses of requirements and following that language that binds the signatory to committing to the requirements.

Section 2

This section provides definitions for "Administration", "Appointee", "Covered executive branch official", "Executive agency", "Foreign Agents Registration Act of 1938, as amended", "Foreign government", "Foreign political party", "Former client", "Former employer", "Gift", "Government official", "Lobbied", "Lobbying activities", "Lobbying disclosure act", "Lobbyist", "On behalf of another", "Particular Matter involving specific parties", "Participate", "Pledge", "Post-employment restrictions", "Registered lobbyist or lobbying organization".  And where these definitions reference definitions and requirements in laws, then it means those laws as written as of January 20th, 2017.

Section 3

This section provides for waivers.  However, there appears to be no requirement to make the waiver public.

Section 4

This section defines who is responsible for administration of the pledge and retention of the records such as signed pledges and waivers granted under section 3.

Section 5

This section gives guidance to heads of agencies as well as the Attorney General on how to deal with violations to the pledge and what the penalties for violation are.

Section 6

This section first revokes EO 13490 which was the Pledge of Ethics for the prior administration.  It also goes on to state that where there are conflicts between this EO and prior EO's, then this EO prevails.  Finally, there is the standard legal fine print to assure the constitutionality of the EO.

My commentary

There were a number of criticism issued at the time and these have by and large been wholly forgotten give the number of other firestorms that have plagued the administration.  First, it was pointed out that the language in (1) of section 1 allows appointees to lobby government, just not one out of the many executive branch agencies. (3) of section 1, does seem to strengthen the lobbying restrictions, but it depends very much on specific interpretations of the words used.  (4) of section 1 is a good thing.  This restricts former government employees from becoming lobbyists for foreign governments.  I am just not sure if this is restating what is already in law like (2) or if it is new.  Similarly (5) and (8) of section 1 are simply affirmations to follow current law.
With regards to section 5, one issue with this is that there are no provisions for criminal penalties.  In other words, no one can be sentenced to jail for the violation of the ethics pledge.  Of course, any egregious act such as accepting bribes is a criminal offence that carries criminal penalties of its own, but there is clearly an incentive to game the system such that after the end of employment, actions which violate no laws, but violate the pledge can be done with impunity, especially if the current administration is no longer in power.
In comparison between the pledge is EO 13490 vs. the one in this EO, it looks like there is more in this EO, but yet what seems to have been added are perhaps more holes than substance.