Thread by @AriPeskoe

Federal rules ostensibly intended to police the “revolving door” between industry and government are actually designed to protect federal officials. Exhibit A: The “ethics waiver” about McNamee’s participation in matters involving former clients (h/t @gavinbade @ericwolff) /1…

@GavinBade @ericwolff As Politico reports, on 8/29 WH counsel sent a letter to FERC excusing McNamee from sec. 6 of the “Trump Ethics Pledge” that forbids officials from participating in matters involving ex-clients. This prohibition terminates after 2 yrs of government work www2.oge.gov/web/oge.nsf/0/…

@GavinBade @ericwolff McNamee’s financial disclosure (elibrary.FERC.gov/idmws/file_lis… – appendix B) shows that from 2006 until May 2017 (when he joined DOE) he worked at a law firm and Dominion was a major client. 10 years with one client is a long time!

@GavinBade @ericwolff To his credit, as a FERC Commissioner McNamee has assiduously recused himself from all (but one – more on this later) dockets where Dominion files a comment or that are directly about PJM Transmission Owners.

@GavinBade @ericwolff FERC sought WH counsel’s advice on whether the “Ethics Pledge” applies. More than 2 years have elapsed since May 2017, but he left the Administration for four months in 2018. So how should he count his government time? White House counsel:

@GavinBade @ericwolff But the precise timing is beside the point. The WH grants the waiver b/c McNamee’s duties “cannot be performed another Commission employee,” a phrase that has new meaning one day later when LaFleur departed. (I wonder if FERC explained that to the WH.)

@GavinBade @ericwolff Put differently – now that McNamee’s participation is necessary for a FERC quorum – the White House finds that “ethics” rules are somehow less important. Now that his vote is essential, the White House has waived the “ethics” pledge. This is a perverse result.

@GavinBade @ericwolff A major purpose of ethics rules is to guard against the “appearance of bias.” Now more than ever those rules ought to be applied to McNamee.

Of course, it's silly that the subject of the request is a timing issue. Ethical conflicts do not actually disintegrate after two years.

@GavinBade @ericwolff But McNamee (and other federal officials) can hide behind this pledge and rightly assert that they’re following the rules. Federal courts may decide otherwise, based on due process standards.

@GavinBade @ericwolff Yesterday environmental groups called for McNamee’s recusal from the PJM capacity auction docket elibrary.FERC.gov/idmws/file_lis…. Dominion is one of the largest buyers and sellers each year. It has asked for special treatment under the new rules.

@GavinBade @ericwolff McNamee has already participated here, voting to delay the auction, as Dominion and other utilities requested. That vote was 4-0. This is the ONLY docket I have found where Dominion filed a comment and McNamee participated - an extraordinary exception with no explanation.

@GavinBade @ericwolff An Administration’s “Ethics Pledge” can’t supersede due process standards. We discuss those standards in our comment urging recusal about rates for “fuel-secure” generators, an entirely separate issue relating to McNamee's time at DOE working on the NOPR- eelp.law.harvard.edu/wp-content/upl…

@GavinBade @ericwolff If an Administration were serious about preventing the “appearance of bias,” it would demand recusal from all matters involving long-term clients. Implementing this standard requires defining “long-term,” and there will still be gray areas. But this isn’t a close call.

@GavinBade @ericwolff Congress could act too and change these rules for federal officials. This sort of change would be particularly appropriate for Commissioners of independent agencies who hold enormous power and act as “quasi-judges.”

@GavinBade @ericwolff HR1 -- passed by the House this year -- merely codifies the 2-year standard - congress.gov/bill/116th-con…