Feb 10, 2022 - Politics & Policy

Solicitor General gets SCOTUS ethics waivers

The front of the United States Supreme Court.

The U.S. Supreme Court. Photo: Stefani Reynolds/AFP via Getty Images

The Justice Department has waived ethics rules to allow Solicitor General Elizabeth Prelogar to participate in some of the most high-profile cases before the Supreme Court, records show.

Why it matters: The waivers show how officials are balancing extensive private sector work with longstanding conflict-of-interest laws as well as stringent new ethics rules put in place in President Biden's first days in office.

What's happening: Prelogar has received waivers freeing her up to work on five Supreme Court cases involving her former law firm, Cooley LLP, or its clients, according to documents filed with the Office of Government Ethics.

  • She was excused from portions of Biden's ethics pledge executive order and a federal conflict of interest statute to allow her to work on a landmark affirmative action case against Harvard, where she was a law professor.
  • Prelogar was also excused from portions of the conflict-of-interest statute for work surrounding high-profile Supreme Court cases with potentially huge implications for abortion and gun rights laws.
  • A spokesperson for the Solicitor General's office declined to comment on the waivers. The White House also declined to comment.

The big picture: The Solicitor General is the federal government's chief advocate before the Supreme Court, and Prelogar has actively engaged on cases that could reshape U.S. law on some hot-button issues.

  • Prelogar joined oral arguments in December on behalf of Jackson Women's Health Organization, the sole remaining abortion clinic in Mississippi, in a case that could dramatically restrict federal abortion rights protections.
  • In the Harvard case, a nonprofit called Students for Fair Admissions is seeking to overturn race-conscious admissions policies it calls discriminatory. Prelogar submitted a brief siding with Harvard in the case.
  • Prelogar also received a waiver for a case challenging New York State's restrictions on concealed-carry firearms. Her top deputy, Brian Fletcher, argued on the state's behalf during oral arguments in November.

What they're saying: "DOJ appears to have a strikingly large volume of high-profile cases involving [Prelogar's] former employers and clients," said Michael Chamberlain, a former Trump administration official who leads the group Protect the Public's Trust, which tracks Biden administration ethics waivers.

  • "Waivers normally arise because of skills, talents and experience that are supremely unique," Chamberlain told Axios in an email.
  • "Several of the waivers we’ve seen recently have been very broad and awarded to attorneys and former lobbyists, two professions of which there’s hardly a shortage in D.C."

Between the lines: Four of the five ethics waivers excused Prelogar from a "catch-all" provision of federal law designed to screen out even the potential appearance of a conflict of interest.

  • Federal law allows agencies to waive that restriction if they determine the government's interest in allowing an otherwise-restricted official to participate in the matter at issue outweighs concerns about any potential perception of a conflict.
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