Advising the President: Rules Governing Access and Accountability of Presidential Advisors

Advising the President: Rules Governing Access and Accountability of Presidential Advisors

Legal Sidebari

Advising the President: Rules Governing
Access and Accountability of Presidential
Advisors
August 6, 2018
Media reports have raised questions regarding the extent to which federal ethics laws and regulations
apply to Presidential advisors. Article II of the U.S. Constitution vests the President with broad authority
to appoint advisors to key posts in the executive branch. The Constitution simultaneously imposes a check
on the influence of these unelected advisors by requiring, in certain cases, Senate confirmation of a
President’s nominee. However, the President appoints certain officers and employees without such
approval, including those in White House roles or within the Executive Office of the President (EOP).
Furthermore, Presidents also have relied upon individuals working outside the government to assist the
Administration as “special advisors,” whether through formal roles on advisory committees or as informal
advisors to the President directly.
Generally, the extent to which presidential advisors are subject to ethics requirements depends on the
classification of their relationship to the government. Two of the main bodies of federal ethics law that
potentially govern the conduct of presidential advisors—statutory conflict of interest provisions and the
regulatory Standards of Ethical Conduct for Employees of the Executive Branch—generally apply to
“employees” of the government. Federal law generally defines employee using three factors: appointment
in the civil service by a designated official (including the President); performance of a federal function;
and supervision of that performance by a designated official. All three factors must be met for an
individual to qualify as an employee. One federal court has explained further that “[t]he status of
‘employee’ requires an unequivocal intention to bring an individual within the civil service.”
This Sidebar examines three categories of Presidential advisors and the related ethics requirements and
limitations that apply to their respective roles: employees who serve full-time, regular appointments;
outside advisors who are formally appointed to temporary roles; and informal, personal advisors with
whom the President consults.
Congressional Research Service
https://crsreports.congress.gov
LSB10183
CRS INSIGHT
Prepared for Members and
Committees of Congress

Congressional Research Service
2
Appointment of White House Advisors as Federal Employees
Federal law gives the president some discretion in appointing his White House advisors. Specifically,
Congress has authorized the President “to appoint and fix the pay of employees in the White House Office
[. . . who] shall perform such official duties as the President may prescribe.” Such appointments are
limited to a maximum number of positions at particular levels of pay, but otherwise Congress drafted the
President’s hiring authority fairly broadly, particularly because it granted the authority “without regard to
any other provision of law regulating the employment or compensation of persons in the Government
service.”
Once installed in their positions, however, these advisors—having been selected by the President and
tasked with particular duties about which they report to the President or other White House official—
become federal employees. And while the breadth of the President’s hiring authority has prompted
questions about who may be appointed as such an advisor, it appears to be commonly understood that,
once employed at the White House in an official capacity, these advisors are subject to ethics
requirements governing employee conduct and conflicts of interest.
For instance, in a 2017 opinion, the Office of Legal Counsel (OLC) in the Department of Justice
considered whether the President could appoint relatives to be White House advisors, and its conclusion
relied significantly on its understanding that various federal ethics rules apply to White House advisors.
Departing from a series of historical precedents that had concluded that the anti-nepotism statute
precludes the President from appointing relatives as White House staff, OLC reasoned that the President’s
broad statutory hiring authority permitted him to appoint relatives as White House advisors. Expressly
noting that such appointments were subject to quantitative limits on certain positions and federal laws
governing employee conduct, OLC highlighted the additional intent of Congress that employees
appointed under the President’s authority are not excused “from full compliance with all laws, executive
orders, and regulations governing such employee’s conduct while serving under the appointment.” This
understanding appears to be critical to its conclusion, as OLC contemplated that the President—regardless
of the anti-nepotism statute—would be able to consult with family members in informal roles (the final
category discussed in this Sidebar). According to OLC, “[a] President wanting a relative’s advice on
governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without
conferring the status and imposing the responsibilities that accompany formal White House positions; or
to appoint his relative to the White House under [the general hiring authority] and subject him to
substantial restrictions against conflicts of interest.”
Use of Outside Advisors in Temporary or Informal Roles
As OLC recognized, the President’s authority to name advisors extends beyond formal appointments to
White House roles. In some cases, Presidents have appointed these individuals to formal, though
temporary, roles, and in other cases, Presidents have relied upon personal associates to provide advice
without formally assigning them to a particular position within the Administration.
Advisors Named to Temporary Federal Advisory Roles
Presidents have relied upon outside experts and consultants to advise on particular government initiatives
or federal programs, naming such individuals as advisors in their professional capacities but not as full-
time government employees. This unique type of government service allows such advisors to share
expertise gleaned in their private professional positions, but consequently raises questions about how to
address potential conflicts of interests posed by their government service. As the Office of Government
Ethics (OGE) has explained, while conflict of interest restrictions arguably should apply to advisors who
serve the government, even if only on a temporary basis, “the Government cannot obtain the expertise it

Congressional Research Service
3
needs if it requires experts to forego their private professional lives as a condition of temporary service.”
Accordingly, Congress tailored how ethics requirements apply to these types of employees in an effort to
balance these competing governmental interests.
To this end, Congress created a category of employees known as special government employees (SGEs),
which it defined to cover situations in which outside experts and consultants provide advice on a
temporary basis, with or without compensation. To qualify as an SGE, the individual generally must be
“retained, designated, appointed, or employed” and cannot serve for more than 130 days during any 365-
day period. Federal regulations expressly clarify that “[s]tatus as an employee is unaffected by pay or
leave status or, in the case of a special Government employee, by the fact that the individual does not
perform official duties on a given day.” As a general rule, SGEs are subject to some, but not all of the
ethics provisions that govern the conduct of regular employees. Typically, the text of the statutory
language or regulation expressly states whether the provision would apply to employees, SGEs, or both.
Although Congress established the category of SGEs, uncertainty about an advisor’s status still may arise
given the array of potential roles that outside advisors may fill in a presidential administration. For
example, many SGEs serve in a limited capacity on federal advisory committees, including those
established by the President, but not all members of such committees qualify as SGEs. Rather, as
described by OGE, advisory committees may be comprised of three types of members: regular
government employees, SGEs, and representatives. OGE characterizes SGEs as a “hybrid” of the other
categories of membership – “subject to less restrictive conflict of interest requirements than regular
employees, but [...] subject to more restrictive requirements than non-employees.” At the ends of this
spectrum, regular employees (as discussed above) are subject to all applicable ethics rules as a matter of
their full-time positions, and representatives are subject to none. Notably, OGE describes the third group,
which it labels “representatives,” as advisors who represent specific interest groups and “may make
policy recommendations to the Government.” Because these advisors “are not expected to render
disinterested advice to the Government” and instead represent particular interests, they are not subject to
the ethics restrictions designed to curtail such influence. Thus, another important question when
determining which ethics rules may apply to particular advisors is whether those advisors are serving as
SGEs or as representatives. A 2016 Government Accountability Office (GAO) report recommended
measures to improve the oversight of the use of SGEs, noting that “weak internal coordination and
misunderstanding about the SGE designation contributed” to misidentification of SGEs. In response,
OGE issued updated regulations in 2017 to facilitate coordination between agency officials to ensure that
the designation of such employees is accurate.
Reliance on Informal, Personal Advisors
Presidents also have relied upon a final category of presidential advisor—a personal, informal advisor. As
alluded to earlier in this posting, without formal status as government employees (whether regular or
special), these advisors are not subject to the governing ethics statutes and regulations. OLC has opined
on the appropriate status of informal presidential advisors, concluding that the applicability of ethics rules
to informal, personal advisors depends on the factual circumstances of the consultations.
As OLC noted in its opinion regarding the appointment of the President’s relatives as White House
advisors, the President may seek advice on an unofficial, ad hoc basis from individuals who are not
employed by the White House or the government generally. That position echoed similar analysis that the
office issued forty years prior, in an opinion examining the applicability of conflict of interest laws to
presidential advisors. OLC, citing a noted ethics scholar, emphasized that the factual circumstances of the
advisor’s role and relationship to the President are dispositive and explained that the ethics restrictions
resulting from government employment do not confer “‘merely by voicing an opinion on government
matters to a federal official at a cocktail party.’” Even if similarly informal consultations occur on a
frequent basis and on a range of policy issues, OLC concluded that such personal advisory relationships

Congressional Research Service
4
would not be subject to ethics and conflicts of interest regulation. OLC stressed the significance of the
“fundamentally personal nature of the relationship.”
Importantly, however, the opinion distinguished that type of general advice from work on a
particular issue. Reflecting the elements defining federal employees, OLC also concluded that a
personal advisor who is not initially named to a formal position, but who assumes a more formal
role to assist the President on specific matters, should be evaluated as a regular employee or
SGE. In the example reviewed in that opinion, the advisor “departed from his usual role of an
informal advisor” by organizing and chairing meetings of government officials on a particular
issue as well as assuming responsibilities for coordinating related government activities on that
issue. The advisor “presumably [was] working under the direction or supervision of the
President,” leading OLC to conclude that the advisor should be given a formal designation and
subject to any consequent ethics requirements.

Author Information

Cynthia Brown

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10183 · VERSION 2 · NEW