In early February, Acting Solicitor General Noel Francisco was working at the Department of Justice helping to defend President Trump’s travel ban policy from various legal challenges.
Ethics rules generally prohibit federal employees from working on specific matters that involve their former employers.
On February 6, Francisco’s former law firm, Jones Day, signed an amicus brief in the case on behalf of a group of constitutional scholars. When DOJ filed a brief later in the afternoon that same day in the case, the government included a footnote indicating that Francisco “refrained from signing the brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by [his] former law firm.”
Following that abstention, Francisco continued to be directly involved in the case, signing a brief on February 16. At the time, DOJ did not explain if Francisco received a waiver to rejoin the case, or whether he received ethics advice addressing his continued involvement.
On April 6, American Oversight sought records from DOJ relating to Francisco’s participation in the defense of President Trump’s travel ban and any ethics waivers he received to do so. On May 26, after American Oversight sued, DOJ released an initial set of records showing various ethics waivers provided to Francisco in connection with the travel ban and another immigration case.
Those records can give us some important insights into how DOJ addressed this specific situation – and the principles it might apply to similar questions in the future.
After Francisco’s former law firm – Jones Day – entered the case, the records received to date show that DOJ quickly turned around an authorization for Francisco to continue to participate in the case under 5 CFR § 2635.502(d). That section permits an agency to authorize an employee to participate in a matter from which the employee would otherwise be recused if the agency designee determines that the government’s interest in the employee’s participation in a particular matter involving specific parties outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations. Jones Day entered the case at 2:01 pm EST on Monday February 6th. DOJ had approved a preliminary authorization for Francisco to continue to participate in the case by 4:30 pm EST the same day.
Section 502(a) of the Standards of Ethical Conduct for Employees of the Executive Branch prohibits federal officials from participating in a specific matter involving particular parties where someone for whom the employee worked within the past year “is or represents a party.”
For Francisco, the question was whether his former law firm had now become “a party” in the immigration case.
The Federal Rules of Civil Procedure state that, unlike plaintiffs and defendants, an amicus participating in a matter in litigation is not “a party” – but the meaning of “a party” for purposes of the federal ethics rules is not nearly as clear.
Given that section 502 rules govern ethics requirements for all federal employees, not just lawyers, one might reasonably think that the phrase “represents a party” should be understood to have a broader meaning when trying to determine if a federal employee is complying with ethics obligations.
The released records, however, reveal for the first time that DOJ does not view representation of an amicus to be representing “a party” for purposes of section 502:
A filer of an amicus brief is not a party to a matter, but does create an appearance of loss of impartiality that is covered by the regulation’s “catch-all” provision . . .
This means that the automatic bar against participating in matters where a former employer represents a party is not implicated, in DOJ’s view, by representation of an amicus. Instead, the records indicate that DOJ has “a longstanding practice” of analyzing a former employer’s representation of an amicus under section 502(a)(2), which is a general catch-all provision that governs any other circumstances that might “raise a question regarding [an employee’s] impartiality” and which effects no automatic prohibitions.
All of Francisco’s section 502 waivers were issued by Scott Schools, a career Associate Deputy Attorney General in the Office of the Deputy Attorney General. Schools is a longtime career DOJ official who recently returned to DOJ after the legendary David Margolis passed away. It appears from the records produced to date that Schools is providing final signoff on ethics waiver requests at DOJ for political appointees.
In addition to answer these questions, the DOJ records also create a couple questions of their own regarding the department’s approach to ethics:
Francisco received an authorization on Monday afternoon, February 6th, to continue to participate in the case notwithstanding his former law firm’s appearance. The preliminary authorization contained the following instruction, which explains his failure to sign the reply brief filed later that evening:
Adjustments that may be made in the employee’s duties to eliminate the likelihood that a reasonable person would question his impartiality are being made in conformity with the January 28, 2017 Executive Order, which disallows communications with former employers. Mr. Francisco has been instructed not to communicate with Jones Day or sign the brief, which would constitute making an appearance or communication.
On Thursday morning, February 9th, Francisco received a second section 502 waiver authorizing him to continue to participate in the case notwithstanding the same conflict. This second authorization contains a more robust explanation of DOJ’s analysis regarding the application of section 502 and the appropriateness of the waiver. Notably, however, this second authorization does not contain the same limitation regarding Mr. Francisco’s participation in the case. Nor does it contain an acknowledgement of the reasons for the change, much less any analysis explaining the reasons for the change or the application of the president’s January 28, 2017 executive order.
Thus DOJ’s rationale for the decision to allow Mr. Francisco to resume signing briefs in the case remains an open question.
The records released by DOJ also reveal the Francisco had an additional conflict of interest in connection with his participation in the travel ban case that was not identified until after the review instigated by his former law firm’s entry into the case.
An amicus brief had also been filed on Monday February 6th on behalf of 97 technology companies, in at least four of which Francisco held a financial interest. After the section 502 waiver addressing his former law firm’s involvement in the case was issued, Francisco himself subsequently identified this potential conflict and sought guidance from the ethics office. In the late morning of February 7th, DOJ issued a section 502 waiver covering any conflict arising from these financial interests.
While Francisco seems to have personally caught and sought resolution the potential conflict here, however, the course of events raises questions about whether DOJ has appropriate systematic controls in place to capture and identify potential conflicts of interest as political appointees join the department.
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