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White House ethics office denies it ever let lobbyists pay for lawyers

The Office of Government Ethics denied reports Thursday that it’s permitting organizers of defense funds, set up to help pay for legal fees for White House staffers, to solicit anonymous donations — which could come from seemingly prohibited sources like lobbyists or people who do business with the government.

As the investigation into the Trump administration’s potential collusion with Russia intensifies, so have Trump officials’ scramble to retain lawyers. That’s raised questions about how White House staffers, most of whom lack their billionaire boss’ deep pockets, will pay for the pricy legal fees. On Wednesday, Politico reported that the Office of Government Ethics (OGE) had recently, quietly tweaked decades-old guidelines to allow these types of funds to accept anonymous donations.

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Technically, these types of donations have been acceptable since at least 1993, when the Clinton administration was investigated in the Whitewater real estate scandal. That year, the OGE issued an opinion explaining that government employees’ legal defense funds could solicit anonymous donations, even if they came from lobbyists, as long as the fund’s beneficiary didn’t receive the money directly and didn’t know who put up the cash.

But that opinion was never really put into practice, even though officially it remained unchanged. On the contrary, officers kept advising funds to avoid accepting anonymous donations.

“It wasn’t in the interest of the public to have people guessing who really is donating here,” Marilyn Glynn, a former acting OGE head, told Politico. “We preferred more sunshine in the process.”

It’s unclear why the guidance was never formally altered to reflect that.

Walter Shaub reportedly tried to clear up any confusion in 2017, when he slapped a note across the top of the opinion — in scarlet, all-caps font — to indicate that it wasn’t quite up-to-date. The note read, “SOME STATEMENTS IN THIS OPINION ARE NOT CONSISTENT WITH CURRENT OGE INTERPRETATION AND PRACTICE.”

That note evidently changed, however, after Shaub left the OGE in July, when he was replaced by David Apol as the OGE’s acting head. A more current version of the document, obtained by Politico, carries the disclaimer that its “PRIMARY FINDING…HAS NOT CHANGED.”

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“HOWEVER, BECAUSE EACH ANALYSIS IS VERY FACT-SPECIFIC,” it continues, “AGENCY ETHICS OFFICIALS SHOULD CONSULT WITH THEIR OGE DESK OFFICER BEFORE ADVISING EMPLOYEES ON THIS TOPIC.”

But Elizabeth Horton, a spokesperson for the OGE, told VICE News that the office’s policy on anonymous contributions remains the same. “The 1993 OGE opinion was changed only to clarify that the main part of the advisory was still valid” — that legal funds can be set up at all, as long as they follow the law — “and to expressedly contact people to contact OGE before establish a legal defense fund,” she said.

A White House aide also said that the Trump administration isn’t helping set up employees’ legal defense funds, especially ones that can solicit anonymous donations, and that it did not seek to influence OGE policy interpretations. Instead, the aide said, the White House is looking for ways to disclose donors’ identities and to make sure that any potential funds for employees don’t receive money from prohibited sources.

In a statement, Shaub told VICE News in a statement that he’s glad that the OGE has clarified the issue — even though he still has questions.

“For the past 23 years, OGE has viewed anonymous donations as inappropriate. It’s not entirely clear why OGE quietly removed a warning that the opinion is invalid,” Shaub said. “It’s a shame that OGE’s acting Director took us down this road.”