As Noel Francisco Faces Senate Confirmation, DOJ Declines to Say if He Received an Ethics Wavier to Participate in the Travel Ban Lawsuit

Washington, DC – One day before Solicitor General nominee Noel Francisco’s scheduled confirmation hearing before the Senate Judiciary Committee, non-partisan ethics watchdog group American Oversight filed a lawsuit seeking records related to Francisco’s work at the Department of Justice (DOJ) earlier this year.

Francisco served as Acting Solicitor General and helped defend President Trump’s travel ban in January and February. DOJ has not publicly explained how it addressed any potential ethics conflicts that arose after Francisco’s former law firm, Jones Day, entered the case, a situation that could have required him to get a waiver to remain on the case.

“Given the Trump administration’s lax approach to ethics, it is critical to establish whether his nominee to be the government’s top litigator has been following the rules,” said Austin Evers, Executive Director of American Oversight. “There’s no such thing as ‘half recused,’ so why won’t DOJ reveal whether Mr. Francisco received an ethics waiver after Jones Day joined the case?”

American Oversight filed a Freedom of Information Act request on April 7, 2017 seeking documents that would reveal whether Francisco stopped working on the travel ban case at any point, whether he was ever formally recused, and whether he had received any waivers to allow him to remain involved in the government’s defense. DOJ did not respond to the request, so American Oversight sued to force the government to release the records.

With the Senate poised to vote on Francisco’s confirmation in the coming weeks, American Oversight is also seeking a preliminary injunction to force the government to release the records in a timely manner.

Background and Timeline

• Government ethics rules prevent government officials like Francisco from working for one year on matters in which their former employers represent a party to the matter.

• Francisco had been a partner at Jones Day until January 20, 2017.

• After President Trump issued his travel ban on January 27, Francisco appeared in court to defend the ban against a challenge from the State of Washington.

• On February 6, Jones Day filed an amicus brief in the case on behalf of an outside group of constitutional scholars.

• While no formal guidance exists on whether representing an amicus constitutes representing a “party” under ethics rules, DOJ appears to have recognized a potential ethics issue regarding Francisco and Jones Day. When DOJ filed a brief later in the afternoon on the day Jones Day joined the litigation, 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.”

• Ten days later, on February 16, Francisco participated in the case again, signing a separate brief for the government.

• Neither DOJ nor Francisco has explained why he did not sign the February 6 brief, whether he stopped participating in the case after that, or if he received an ethics waiver or ethics advice that allowed him to continue to participate in spite of Jones Day’s involvement.