The appointments process for the Executive Branch is complicated by the sheer scale of political appointments that must be considered by the president and his team. Roughly 4000 political appointees transition into a new administration, and approximately 1200 of those are Senate confirmed appointments.

"Vetting" of such appointees is a multi-disciplinary process and requires, for the lawyer, a broad range of legal and practical skills. Vetting can be arbitrarily divided into two categories – technical vetting, which includes filing required forms and obtaining security, clearances, and clearance of potential conflict of interest – and "political" vetting, which entails a more amorphous set of criteria applied to particular appointees to determine whether they are suitable for a position in the government, and whether they are generally aligned with the political agenda of the new administration.

The standards for political vetting have varied widely over administrations. Recently administrations have used threshold inquiries  to determine whether the particular appointee is sufficiently "loyal" to the incoming administration and shares the same agendas. Some of those vetting measures include special interviews, additional forms and detailed questionnaires.

The appointments process interacts intimately with the government ethics system, and compliance with the ethics regulatory regime is a precondition for appointments. In the case of Senate confirmed appointments, compliance with such requirements, including security clearances and financial disclosure and conflict resolution, is a precondition to forwarding a nomination to the Senate.

Over time, the complexity of the appointments process has put stress on the ability of the executive branch to staff its needs. This stress has been exacerbated by delays in the review of appointments by the various players who have a role in the process, described above, and because of the weaponization of government ethics as a political tool to resist Executive initiatives, a tool that has been used by both political parties.

Especially if there is no incumbent in the White House, the stresses on the presidential appointments process become acute during a presidential transition. Transition design is an important component of government ethics regulation, and has in the past included special features such as the use of ethics pledges. Transition issues are also impacted by the ability of the incoming administration to get Senate consent to senior appointments. When it becomes clear that a nominee will not be confirmed, transition teams have pursued alternative staffing models, a process sometimes referred to as "Plan B." 

§3345. Acting officer

(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office-

(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;

(2) notwithstanding paragraph (1), the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or

(3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if-

(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and

(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS–15 of the General Schedule.

(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if-

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person-

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

(2) Paragraph (1) shall not apply to any person if-

(A) such person is serving as the first assistant to the office of an officer described under subsection (a);

(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and

(C) the Senate has approved the appointment of such person to such office.

(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in that office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.

(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–611 ; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814 .)

§3346. Time limitation (Under Vacancies Act)

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office-

(1) for no longer than 210 days beginning on the date the vacancy occurs; or

(2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve-

(A) until the second nomination is confirmed; or

(B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–612 .)

§3347. Exclusivity

(a) Sections 3345 and 3346 are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless-

(1) a statutory provision expressly-

(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or

(2) the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.

(b) Any statutory provision providing general authority to the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which subsection (a)(1) applies.

(Added Pub. L. 105–277, div. C, title I, §151(b), Oct. 21, 1998, 112 Stat. 2681–613 ; amended Pub. L. 106–31, title V, §5011, May 21, 1999, 113 Stat. 112 ; Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814 .)

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 301 of title 3, United States Code, and sections 3301 and 7301 of title 5, United States Code, it is hereby ordered as follows:

Section 1.  Ethics Pledge. 

 Every appointee in every executive agency appointed on or after January 20, 2021, shall sign, and upon signing shall be contractually committed to, the following pledge upon becoming an appointee: 

“I recognize that this pledge is part of a broader ethics in government plan designed to restore and maintain public trust in government, and I commit myself to conduct consistent with that plan.  I commit to decision-making on the merits and exclusively in the public interest, without regard to private gain or personal benefit.  I commit to conduct that upholds the independence of law enforcement and precludes improper interference with investigative or prosecutorial decisions of the Department of Justice.  I commit to ethical choices of post-Government employment that do not raise the appearance that I have used my Government service for private gain, including by using confidential information acquired and relationships established for the benefit of future clients.  

“Accordingly, as a condition, and in consideration, of my employment in the United States Government in a position invested with the public trust, I commit myself to the following obligations, which I understand are binding on me and are enforceable under law: 

“1.  Lobbyist Gift Ban.  I will not accept gifts from registered lobbyists or lobbying organizations for the duration of my service as an appointee. 

“2.  Revolving Door Ban — All Appointees Entering Government.  I will not for a period of 2 years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts. 

“3.  Revolving Door Ban — Lobbyists and Registered Agents Entering Government.  If I was registered under the Lobbying Disclosure Act, 2 U.S.C. 1601 et seq., or the Foreign Agents Registration Act (FARA), 22 U.S.C. 611 et seq., within the 2 years before the date of my appointment, in addition to abiding by the limitations of paragraph 2, I will not for a period of 2 years after the date of my appointment: 

(a)  participate in any particular matter on which I lobbied, or engaged in registrable activity under FARA, within the 2 years before the date of my appointment; 

(b)  participate in the specific issue area in which that particular matter falls; or

(c)  seek or accept employment with any executive agency with respect to which I lobbied, or engaged in registrable activity under FARA, within the 2 years before the date of my appointment. 

“4.  Revolving Door Ban — Appointees Leaving Government.  If, upon my departure from the Government, I am covered by the post-employment restrictions on communicating with employees of my former executive agency set forth in section 207(c) of title 18, United States Code, and its implementing regulations, I agree that I will abide by those restrictions for a period of 2 years following the end of my appointment.  I will abide by these same restrictions with respect to communicating with the senior White House staff.  

“5.  Revolving Door Ban — Senior and Very Senior Appointees Leaving Government.  If, upon my departure from the Government, I am covered by the post-employment restrictions set forth in sections 207(c) or 207(d) of title 18, United States Code, and those sections’ implementing regulations, I agree that, in addition, for a period of 1 year following the end of my appointment, I will not materially assist others in making communications or appearances that I am prohibited from undertaking myself by (a) holding myself out as being available to engage in lobbying activities in support of any such communications or appearances; or (b) engaging in any such lobbying activities. 

“6.  Revolving Door Ban — Appointees Leaving Government to Lobby.  In addition to abiding by the limitations of paragraph 4, I also agree, upon leaving Government service, not to lobby any covered executive branch official or non-career Senior Executive Service appointee, or engage in any activity on behalf of any foreign government or foreign political party which, were it undertaken on January 20, 2021, would require that I register under FARA, for the remainder of the Administration or 2 years following the end of my appointment, whichever is later. 

“7.  Golden Parachute Ban.  I have not accepted and will not accept, including after entering Government, any salary or other cash payment from my former employer the eligibility for and payment of which is limited to individuals accepting a position in the United States Government.  I also have not accepted and will not accept any non-cash benefit from my former employer that is provided in lieu of such a prohibited cash payment.

“8.  Employment Qualification Commitment.  I agree that any hiring or other employment decisions I make will be based on the candidate’s qualifications, competence, and experience. 

“9.  Assent to Enforcement.  I acknowledge that the Executive Order entitled ‘Ethics Commitments by Executive Branch Personnel,’ issued by the President on January 20, 2021, which I have read before signing this document, defines certain of the terms applicable to the foregoing obligations and sets forth the methods for enforcing them.  I expressly accept the provisions of that Executive Order as a part of this agreement and as binding on me.  I understand that the terms of this pledge are in addition to any statutory or other legal restrictions applicable to me by virtue of Federal Government service.” 

Sec. 2.  Definitions.  

For purposes of this order and the pledge set forth in section 1 of this order: 

(a)  “Executive agency” shall include each “executive agency” as defined by section 105 of title 5, United States Code, and shall include the Executive Office of the President; provided, however, that “executive agency” shall include the United States Postal Service and Postal Regulatory Commission, but shall exclude the Government Accountability Office.

(b)  “Appointee” shall include every full-time, non-career Presidential or Vice-Presidential appointee, non-career appointee in the Senior Executive Service (or other SES-type system), and appointee to a position that has been excepted from the competitive service by reason of being of a confidential or policymaking character (Schedule C and other positions excepted under comparable criteria) in an executive agency.  It does not include any person appointed as a member of the Senior Foreign Service or solely as a uniformed service commissioned officer. 

(c) “Gift”: 

(i)    shall have the definition set forth in section 2635.203(b) of title 5, Code of Federal Regulations; 

(ii)   shall include gifts that are solicited or accepted indirectly, as defined in section 2635.203(f) of title 5, Code of Federal Regulations; and 

(iii)  shall exclude those items excluded by sections 2635.204(b), (c), (e)(1) and (3), and (j) through (l) of title 5, Code of Federal Regulations. 

(d)  “Covered executive branch official” and “lobbyist” shall have the definitions set forth in section 1602 of title 2, United States Code. 

(e)  “Registered lobbyist or lobbying organization” shall mean a lobbyist or an organization filing a registration pursuant to section 1603(a) of title 2, United States Code, and in the case of an organization filing such a registration, “registered lobbyist” shall include each of the lobbyists identified therein. 

(f)  “Lobby” and “lobbied” shall mean to act or have acted as a registered lobbyist. 

(g)  “Lobbying activities” shall have the definition set forth in section 1602 of title 2, United States Code.

(h)  “Materially assist” means to provide substantive assistance but does not include providing background or general education on a matter of law or policy based upon an individual’s subject matter expertise, nor any conduct or assistance permitted under section 207(j) of title 18, United States Code.  

(i)  “Particular matter” shall have the same meaning as set forth in section 207 of title 18, United States Code, and section 2635.402(b)(3) of title 5, Code of Federal Regulations. 

(j)  “Particular matter involving specific parties” shall have the same meaning as set forth in section 2641.201(h) of title 5, Code of Federal Regulations, except that it shall also include any meeting or other communication relating to the performance of one’s official duties with a former employer or former client, unless the communication applies to a particular matter of general applicability and participation in the meeting or other event is open to all interested parties. 

(k)  “Former employer” is any person for whom the appointee has within the 2 years prior to the date of his or her appointment served as an employee, officer, director, trustee, or general partner, except that “former employer” does not include any executive agency or other entity of the Federal Government, State or local government, the District of Columbia, Native American tribe, any United States territory or possession, or any international organization in which the United States is a member state.  

(l)  “Former client” is any person for whom the appointee served personally as agent, attorney, or consultant within the 2 years prior to the date of his or her appointment, but excluding instances where the service provided was limited to speeches or similar appearances.  It does not include clients of the appointee’s former employer to whom the appointee did not personally provide services. 

(m)  “Directly and substantially related to my former employer or former clients” shall mean matters in which the appointee’s former employer or a former client is a party or represents a party. 

(n)  “Participate” means to participate personally and substantially. 

(o)  “Government official” means any employee of the executive branch. 

(p)  “Administration” means all terms of office of the incumbent President serving at the time of the appointment of an appointee covered by this order. 

(q)  “Pledge” means the ethics pledge set forth in section 1 of this order. 

(r)  “Senior White House staff” means any person appointed by the President to a position under sections 105(a)(2)(A) or (B) of title 3, United States Code, or by the Vice President to a position under sections 106(a)(1)(A) or (B) of title 3. 

(s)  All references to provisions of law and regulations shall refer to such provisions as are in effect on January 20, 2021. 

Sec. 3.  Waiver.  

(a)  The Director of the Office of Management and Budget (OMB), in consultation with the Counsel to the President, may grant to any current or former appointee a written waiver of any restrictions contained in the pledge signed by such appointee if, and to the extent that, the Director of OMB certifies in writing: 

(i)   that the literal application of the restriction is inconsistent with the purposes of the restriction; or 

(ii)  that it is in the public interest to grant the waiver.  Any such written waiver should reflect the basis for the waiver and, in the case of a waiver of the restrictions set forth in paragraphs 3(b) and (c) of the pledge, a discussion of the findings with respect to the factors set forth in subsection (b) of this section.  

(b)  A waiver shall take effect when the certification is signed by the Director of OMB and shall be made public within 10 days thereafter. 

(c)  The public interest shall include, but not be limited to, exigent circumstances relating to national security, the economy, public health, or the environment.  In determining whether it is in the public interest to grant a waiver of the restrictions contained in paragraphs 3(b) and (c) of the pledge, the responsible official may consider the following factors: 

(i)    the government’s need for the individual’s services, including the existence of special circumstances related to national security, the economy, public health, or the environment; 

(ii)   the uniqueness of the individual’s qualifications to meet the government’s needs; 

(iii)  the scope and nature of the individual’s prior lobbying activities, including whether such activities were de minimis or rendered on behalf of a nonprofit organization; and 

(iv)   the extent to which the purposes of the restriction may be satisfied through other limitations on the individual’s services, such as those required by paragraph 3(a) of the pledge. 

Sec. 4.  Administration. 

(a)  The head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish such rules or procedures (conforming as nearly as practicable to the agency’s general ethics rules and procedures, including those relating to designated agency ethics officers) as are necessary or appropriate to ensure: 

(i)    that every appointee in the agency signs the pledge upon assuming the appointed office or otherwise becoming an appointee; 

(ii)   that compliance with paragraph 3 of the pledge is addressed in a written ethics agreement with each appointee to whom it applies, which agreement shall also be approved by the Counsel to the President prior to the appointee commencing work; 

(iii)   that spousal employment issues and other conflicts not expressly addressed by the pledge are addressed in ethics agreements with appointees or, where no such agreements are required, through ethics counseling; and 

(iv)   that the agency generally complies with this order. 

(b)  With respect to the Executive Office of the President, the duties set forth in section 4(a) of this order shall be the responsibility of the Counsel to the President. 

(c)  The Director of the Office of Government Ethics shall: 

(i)    ensure that the pledge and a copy of this order are made available for use by agencies in fulfilling their duties under section 4(a) of this order; 

(ii)   in consultation with the Attorney General or the Counsel to the President, when appropriate, assist designated agency ethics officers in providing advice to current or former appointees regarding the application of the pledge; and 

(iii)  in consultation with the Attorney General and the Counsel to the President, adopt such rules or procedures as are necessary or appropriate: 

(A)  to carry out the foregoing responsibilities; 

(B)  to authorize limited exceptions to the lobbyist gift ban for circumstances that do not implicate the purposes of the ban; 

(C)  to make clear that no person shall have violated the lobbyist gift ban if the person properly disposes of a gift as provided by section 2635.206 of title 5, Code of Federal Regulations; 

(D)  to ensure that existing rules and procedures for Government employees engaged in negotiations for future employment with private businesses that are affected by the employees’ official actions do not affect the integrity of the Government’s programs and operations;

(E)  to ensure, in consultation with the Director of the Office of Personnel Management, that the requirement set forth in paragraph 6 of the pledge is honored by every employee of the executive branch; 

(iv)   in consultation with the Director of OMB, report to the President on whether full compliance is being achieved with existing laws and regulations governing executive branch procurement lobbying disclosure.  This report shall include recommendations on steps the executive branch can take to expand, to the fullest extent practicable, disclosure of both executive branch procurement lobbying and of lobbying for Presidential pardons.  These recommendations shall include both immediate actions the executive branch can take and, if necessary, recommendations for legislation; and 

(v)    provide an annual public report on the administration of the pledge and this order. 

(d)  The Director of the Office of Government Ethics shall, in consultation with the Attorney General, the Counsel to the President, and the Director of the Office of Personnel Management, report to the President on steps the executive branch can take to expand to the fullest extent practicable the revolving door ban set forth in paragraph 5 of the pledge to all executive branch employees who are involved in the procurement process such that they may not for 2 years after leaving Government service lobby any Government official regarding a Government contract that was under their official responsibility in the last 2 years of their Government service.  This report shall include both immediate actions the executive branch can take and, if necessary, recommendations for legislation. 

(e)  All pledges signed by appointees, and all waiver certifications with respect thereto, shall be filed with the head of the appointee’s agency for permanent retention in the appointee’s official personnel folder or equivalent folder. 

Sec. 5.  Enforcement.  

(a)  The contractual, fiduciary, and ethical commitments in the pledge provided for herein are solely enforceable by the United States pursuant to this section by any legally available means, including debarment proceedings within any affected executive agency or judicial civil proceedings for declaratory, injunctive, or monetary relief. 

(b)  Any former appointee who is determined, after notice and hearing, by the duly designated authority within any agency, to have violated his or her pledge may be barred from lobbying any officer or employee of that agency for up to 5 years in addition to the time period covered by the pledge.  The head of every executive agency shall, in consultation with the Director of the Office of Government Ethics, establish procedures to implement this subsection, which procedures shall include (but not be limited to) providing for fact-finding and investigation of possible violations of this order and for referrals to the Attorney General for consideration pursuant to subsection (c) of this order. 

(c)  The Attorney General is authorized:

(i)   upon receiving information regarding the possible breach of any commitment in a signed pledge, to request any appropriate Federal investigative authority to conduct such investigations as may be appropriate; and 

(ii)  upon determining that there is a reasonable basis to believe that a breach of a commitment has occurred or will occur or continue, if not enjoined, to commence a civil action against the former employee in any United States District Court with jurisdiction to consider the matter. 

(d)  In any such civil action, the Attorney General is authorized to request any and all relief authorized by law, including but not limited to: 

(i)   such temporary restraining orders and preliminary and permanent injunctions as may be appropriate to restrain future, recurring, or continuing conduct by the former employee in breach of the commitments in the pledge he or she signed; and 

(ii)  establishment of a constructive trust for the benefit of the United States, requiring an accounting and payment to the United States Treasury of all money and other things of value received by, or payable to, the former employee arising out of any breach or attempted breach of the pledge signed by the former employee. 

Sec. 6.  General Provisions.  

(a)  If any provision of this order or the application of such provision is held to be invalid, the remainder of this order and other dissimilar applications of such provision shall not be affected. 

(b)  Nothing in this order shall be construed to impair or otherwise affect: 

(i)   the authority granted by law to an executive department or agency, or the head thereof; or 

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. 

(c)  This order shall be implemented consistent with applicable law and subject to the availability of appropriations. 

(d)  This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. 

JOSEPH R. BIDEN JR.

THE WHITE HOUSE,
January 20, 2021.

Presidential transitions are unique to US and raise a number of legal and operational issues:

Evolution of Presidential Transition Act(s)

Structural/Operational Issues – How are Transitions organized to maximize efficiency?

Resource allocation issues – Personnel vs. Policy

Recent experience (2016, 2020) indicate that there is significant uncertainty concerning regulatory design of transitions

Presidential transitions involve specialized units to facilitate policy and personnel changes in government agencies.

In first Trump administration, teams called "beachhead teams" were organized to place personnel in agencies immediately before and after Inauguration. Approximately 500 team members were ready to "land" as soon as Trump was sworn in on Inauguration Day, 2017.

The regulation of presidential appointments rests on the Appointments Clause and on the Vacancies Act and amendments, but has evolved into a hodge-podge of case law and practices. Norms and practices have been tested, especially in the past 10-15 years, as the confirmation process in the Senate has ceased to function along the traditional deference to the president ("the president deserves his own team"). The through-line is that the Executive will find means to staff itself, regardless of the formality of the law, and the staffing will be subject to collateral attack.