Watchdog Sues to Release Ethics Records of Solicitor General Nominee

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.

Part of Investigation:

Related Blog Posts

November 19, 2018

Ivanka Trump Email Investigation Sparked by American Oversight FOIAs

Department of Commerce, Department of Education, Department of Labor, Department of the Treasury, Small Business Administration
Investigation Update
May 3, 2018

Court Rules in Favor of American Oversight in Trump Hotel Lawsuit

General Services Administration
Investigation Update
April 17, 2018

Lawsuit Seeks Scott Pruitt and Nino Perrotta Travel and Security Spending Records

Environmental Protection Agency
Investigation Update
April 6, 2018

New: EPA Documents Show Details of Pruitt Office Renovations

Environmental Protection Agency
Investigation Update
March 16, 2018

Video: Four Strategies for Holding Trump Accountable

General News
March 13, 2018

One Year of American Oversight

General News
March 9, 2018

New FOIAs: Gun Control, Industry Influences, and Sanctuary Cities

General News
March 9, 2018

American Oversight Sues HHS and CMS for Verma Ethics Records

Centers For Medicare and Medicaid Services, Department of Health and Human Services
General News
March 6, 2018

Ethics Watchdog Sues HUD for Emails from Carson Family, Lynne Patton, Trump Organization

Department of Housing and Urban Development
Investigation Update
March 2, 2018

Investigation Update: Defund Trump

Investigation Update
February 27, 2018

American Oversight Sues HUD for Carson Office Renovation Records

Department of Housing and Urban Development
Investigation Update
February 21, 2018

American Oversight Calls for a HUD IG Investigation into Carson’s Leadership

Department of Housing and Urban Development
Investigation Update
February 16, 2018

Inside the Documents: Ben Carson Jr’s HUD Emails

Department of Housing and Urban Development
Investigation Update
February 5, 2018

Sessions, Comey, and Clinton: New FOIAs and Lawsuits Seek Answers

General News
February 1, 2018

New HUD Emails Show Secretary Ben Carson’s Son Taking Role at Agency

Department of Housing and Urban Development
Investigation Update
January 25, 2018

American Oversight Sues GSA Over Changes to MyPillow Contract

General Services Administration
General News
January 19, 2018

Inside the Documents: Ivanka’s Emails, Affirmative Action, and HUD Decisions

General News
December 7, 2017

FBI Records Call Into Question Sessions’ Claims About Security Clearance Instructions

Department of Justice, Federal Bureau of Investigation
Investigation Update
November 22, 2017

More Evidence Flynn Concealed Payments

Department of Defense
Investigation Update
November 16, 2017

American Oversight Statement Regarding DOI Report on Zinke Travel

Department of the Interior
Investigation Update
November 8, 2017

American Oversight Statement on Carl Icahn Investigation

Environmental Protection Agency
Investigation Update
November 8, 2017

Statement on Interference in AT&T-Time Warner Merger

Department of Justice
General News
November 6, 2017

Over 50 New FOIA Requests Filed Last Week

General News
November 2, 2017

Ivanka Trump Continued Using Personal Account in White House

Department of the Treasury
Investigation Update
November 2, 2017

FOIA In Action: Helping Journalists Expose Questionable Behavior By Trump’s Appointees

Department of Education, Department of Labor, Small Business Administration
General News
October 27, 2017

American Oversight Calls for Investigation of Payments Made to Trump Organization

Investigation Update
October 24, 2017

Texts Show SBA Staff Tried to “Crop the Opulence” from Trump Hotel Event

Small Business Administration
Investigation Update
October 20, 2017

Congressional Russia Investigations Must be Transparent and Credible

General News
October 17, 2017

5 Questions for Attorney General Sessions

Department of Justice
October 10, 2017

New Lawsuit Seeks Answers about Ben Carson’s Management of HUD

Department of Housing and Urban Development
Investigation Update
October 6, 2017

American Oversight Calls for Investigation of Manhattan DA Vance’s Failure to Investigate Fraud at Trump SoHo Development

General News
October 5, 2017

Call for Ethics Investigation of Rep. Luke Messer

Office of Congressional Ethics
General News
October 5, 2017

Lawsuit Seeks Records of Lolita Zinke’s Travel, Role at Department of the Interior

Department of the Interior
Investigation Update
October 3, 2017

EPA Administrator Scott Pruitt’s Calendars Show Deep Industry Connections

Environmental Protection Agency
Investigation Update
September 18, 2017

Austin Evers Discusses Trump Inaugural Funds on MSNBC

General News
September 12, 2017

New Lawsuit: Did the FBI Really Advise Sessions to Omit Russian Contacts?

Department of Justice, Federal Bureau of Investigation
Investigation Update
August 28, 2017

Statement on EPA IG Investigation of Pruitt Travel

Environmental Protection Agency
Investigation Update
July 27, 2017

Call for OSC Investigation of Pruitt Travel to Oklahoma

Environmental Protection Agency
Investigation Update
July 6, 2017

American Oversight Statement on Resignation of OGE Director Shaub

Office of Government Ethics
General News
June 28, 2017

Ethics Watchdog Sues GSA for Trump International Hotel Lease Records

General Services Administration
Investigation Update
June 23, 2017

Francisco & the Travel Ban: What We Learned from the DOJ Documents

Department of Justice
Investigation Update
June 7, 2017

Statement on the Release of Lobbyist Ethics Waivers

Department of Agriculture, Department of Commerce, Department of Energy, Department of Health and Human Services, Department of the Interior, Department of the Treasury, Department of Veterans Affairs, Environmental Protection Agency
Investigation Update
May 31, 2017

Investigation of Secretary of State Rex Tillerson’s Apparent Presence at ExxonMobil Deal Signing

Department of State
Investigation Update
May 17, 2017

Watchdog Sues to Force Release of Ethics Waivers from Eight Trump Administration Agencies

Department of Agriculture, Department of Commerce, Department of Energy, Department of Health and Human Services, Department of the Interior, Department of the Treasury, Department of Veterans Affairs, Environmental Protection Agency
Investigation Update
May 5, 2017

Letter to Senator Grassley: Renew Leadership on Ethics and Transparency

Office of Government Ethics
Investigation Update
April 4, 2017

10 Questions about the Border Wall that Deserve Big, Beautiful Answers

Customs and Border Protection, Department of Homeland Security, Department of the Interior
Investigation Update
March 30, 2017

Analysis: Anti-Lobbying Act & Dan Scavino

White House
General News
March 24, 2017

American Oversight Calls for Investigation of Mnuchin for “Batman” Promotion

Department of the Treasury, Office of Government Ethics
General News