Office of the General Counsel
U.S. Department of Homeland Security
Washington, DC 20528

Homeland
Security
March 13, 2017

MEMORANDUM FOR:

John F. Kelly
Secretary

FROM:

Joseph B. Maher
Aeli ng General
unset and
Designated Agency Ethi cs Official

SUBJECT:

Authorization Pursuant to 5 C.F.R. § 2635.502 to Participate in
Acquisitien Matters the Government of Australia
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This memorandum reviews the applicable ethics authorities and, pursuant to those authorities,
authori zes your participation in all Government matters involving the Government of Australia,
including particular matters involv ing specific parties in which the Government of Australia
("Australia") is a pa1ty or represents a party. Two laws would otherwise prohibit your
participation in matters involving the Government of Australia: President Trump's Executive
Order on ethics (which the White House has waived in this circumstance) and Title 5 ethics
regulations (which this memorandum waives in this circumstance). The attached "Waiver of
Executive Order 13,770 for Secretary John F. Kelly" describes the background of your
association with the Government of Australia and your critical role in ensuring the
accomplishment of the DHS mission and homeland and national security for the United States.
Background
In accordance with your Ethics Agreement, dated January 5, 2017, unless you were authorized to
participate, you committed to recusi ng from participation in any particular matter involving
specific parties in which the Government of Australia ("Auslralia") is a party or represents a
party, pending payment from the Government of Australia. You received payment in fu ll from
the Government of Australia on February 8, 2017.

In addition to your Ethics Agreement, you are subject to the provisions of the ethics regulations
regarding impartiality in performing official duties. Pursuant to these provisions, employees
who, within the last year, acted as a consultant or contractor to an entity are considered to have a
"covered relationship" with that entity. When an employee has a covered relationship with a

 a reasonable person with knowledge of the facts would not question the employee's impartiality
in acting in the matter. 5 C.F .R. § 2635.501, et. seq. In certain circumstances, however, an
employee may be authorized to participate in the foregoing types of matters if authorized by the
agency.
You are also subject to the provisions of Executive Order 13770 (January 28, 2017) (the
"Executive Order"). Under Section 1, paragraph 6, of the Executive Order, you are restricted for
two years, beginning with your appointment date, from participating in any particular matter
involving specific parties in which your former client, the Government of Australia,
("Australia"), is a party or represents a party. The White House determined that it was in the
public interest to grant a waiver of this restriction, enabling you to participate in all matters
involving the Government of Australia.
Analysis and Conclusion
The regulatory provisions are designed to ensure that employees take appropriate steps to avoid
an appearance of loss of impartiality in the performance of their official duties. Towards that
end, 5 C.F.R. § 2635.502 provides for an employee to seek authorization in certain
circumstances in which his participation may call into doubt his impartiality. With respect to the
Government of Australia, you have requested authorization to participate in all matters involving
the Government of Australia, including particular matters involving specific parties in which the
Government of Australia (''Australia") is a party or represents a party.
As Designated Agency Ethics Official, I may make an independent determination as to whether a
reasonable person with knowledge of the relevant facts would be likely to question your
impartially in participating in all matters involving the Government of Australia. In light of your
recent teaching position with Australia, and your recent honorarium payment from Australia, a
reasonable person might question your impartiality in making critical decisions on sensitive
matters of homeland and national security.
Accordingly, as instructed by the regulation, I have followed the process set forth in
§ 2635.502(d), to consider authorizing your participation in matters involving Australia. I have
considered the isolated, short-term nature of your teaching position; the fact that you no longer
have a personal financial interest that is affected by Australia; the critical need for your
engagement in homeland and national security; and the probability that DHS's role could be
undermined on a national and international scale or could be detrimentally affected by significant
inefficiencies if you are restricted from interacting with any national or international group or
official solely due to the Government of Australia's involvement or participation. Based on the
foregoing considerations, as more fully set forth in the attached White House Waiver
Certification, I have determined that it is necessary and appropriate to authorize you to
participate in all matters involving the Government of Australia.

Attachment: Waiver of Executive Order 13,770 for Secretary John F. Kelly
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 Authorization
In accordance with the Standards of Ethical Conduct for Employees of the Executive Branch, 5
C.F.R. § 2635.502(d), I authorize Secretary John F. Kelly to participate in all matters involving
the Government of Australia, including any particular matter involving speci fic parties in which
the Government of Australia (..Australia..) is a party or represents a party. In granting this
authori zation. I have determined that in light of all relevant circumstances, the interest of the
Government in Secretary Kel ly's participation in all matters involving the Government of
Australia outweighs the concern that a reasonable person may question the integrity of DHS 's
programs and operations. I have considered relevant factors including the Government's critical
need for Secretary Ke lly to e ffectively carry out hi s duties as Secretary of DHS. The role of the
Secretary is at the center of the Department's important national security and related missions.
The successful accompl ishment of these OHS missions relies on extensive, open, and
collaborative communications within tbe Depa1tment and between the Secretary and the
President, United States Government offici als and foreign government officia ls. I have also
considered the limited nature of Secretary Kelly's involvement with the Government of
Australia, while he was a retired military officer, and the critical national interest served by
authorizing Secretary Kelly to freely communicate with all members of the national and
international commun iLy regard ing all aspects of DI !S's mission and operations. This
authorization will significantly promote and protect the public interest by enabling Secretary
Kelly to freel y carry out the responsibilit ies of hi s office.
I have also considered the White House Counsel Waiver Certification. granted to Secretary on

March I 0, 2017, pursuant to Executive Order I 3 770, Section 3.
This waiver does not otherwise affect Secretary Kelly's obligation to comply with all other preex isting government eth ics rules. other provisions of the Executive Order and with the other
commitments he made in hi s Ethics Agreement and amendments to his Ethics Agreement.

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Date

Joseph B. Maher
Designated Agency Ethics Official

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 WAIVER OF EXECUTIVE ORDER 13770 FOR
SECRETARY JOHN F. KELLY
In accordance with Section 3 of Executive Order 13770 (January 28, 2017) (the "Executive
Order") and after consultation with the Office of the Counsel to the President, and for the reasons
stated below, I hereby submit that it is in the public interest to grant to John F. Kelly, Secretary,
United States Department of Homeland Security ("OHS"), a waiver of the Ethics Pledge
restriction set forth in Section 1, paragraph 6, of the Executive Order to enable him to effectively
carry out his duties as Secretary of OHS. Absent this waiver, Secretary Kelly would be restricted
for two years, beginning with his appointment date, from participating in any particular matter
involving specific parties in which his former client, the Government of Australia, ("Australia"),
is a party or represents a party.
Secretary Kelly was sworn in as Secretary of OHS on January 20, 2017. At that time, Secretary
Kelly was advised of his recusal obligations under the U.S. Office of Government Ethics
Standards of Conduct for Executive Branch Employees, 5 C.F.R. § 2635.502 and he has
complied with the restrictions on participating in particular matters involving specific parties,
including the restrictions on communications with the Government of Australia. Subsequent to
his appointment, however, the President issued Executive Order 13770. This Executive Order
included a restriction on official interactions with former employers and former clients, which
now affects the Secretary's ability to effectively carry out the responsibilities of his position in
accordance with the foregoing ethical obligations.
Managing an ongoing recusal for Secretary Kelly involving the Government of Australia will
result in serious limitations and inefficiencies in the Department's ability to respond quickly and
effectively to crisis situations, engage in ongoing mission activities, and exercise leadership in
national and international forums. In particular, the communication restriction has prevented the
Secretary from engaging with the Government of Australia on homeland security, immigration
matters of national importance which relate to the President's agenda and Administration policy.
It is anticipated that it will be essential for the Secretary to participate in operational activities
and represent OHS in forums where representatives of the Government of Australia would be
expected to be present, obtain Australia's views directly from Australian officials, and act on
government matters that involve the Government of Australia. Without this waiver, the
adjustments that would be necessary to maintain the Secretary's recusal are anticipated to have a
serious impact on DHS's international relations and interfere with rapid, clear and streamlined
communications and response times.

 Pursuant to this waiver, Secretary Kelly will be pennitted to interact directly with the
Government of Australia, interact with the President, the international community, OHS
officials, and Federal government leadership on a variety of matters involving the Government of
Australia for the purposes of ensuring DHS support and leadership related to homeland and
national security, immigration, cybersecurity, aviation security, emergencies, risk management,
and infonnation exchange in order to facilitate DHS operations.
Background
Prior to his confinnation, and following his retirement from the United States Marine Corps,
Secretary Kelly filled the role of a Senior Fellow to the Department ofDefense, National
Defense University ("NDtr•). 1 In this position, Secretary Kelly, along with other general officer
counterparts, were important contributors to ensuring the continued excellence in military
leadership through their coaching and mentoring of succeeding generations of United States
military leaders and future leaders.2 Through one of these courses, at the recommendation of
Australian military officers in attendance, the Government of Australia invited Secretary Kelly to
participate as a mentor in the Australian Defense Joint Task Force Commanders course as a
residential Senior Course Mentor. Secretary Kelly was asked to "facilitate learning by leading
discussions, analyzing coursework material, and offering insights based on [his] professional
military experience." His duties as a Senior Course Mentor included offering his ..insights on
command challenges and contemporary operations, in order to develop selected officers using a
variety of theories, case studies and practical advice."3 The Departments of the Navy and State,
and the United States Marine Corps authorized Secretary Kelly to accept travel benefits and an
honorarium from the Government of Australia. The United States Government approval
recognized that Secretary Kelly would not owe any duties to the Government of Australia and
that he did not have any ongoing commitments to the Government of Australia. No postgovemment employment ethics restrictions were identified in connection with this activity.4
Analysis
The nature of his relationship with the Government of Australia during this one-time, short-term
instruction is one that technically falls within the definition of a "former client" under the
Executive Order, but does not equate to the type and nature ofprior business relationships
envisioned in the establishment of the two-year revolving door provision found in section 1,
paragraph 6 of the Executive Order.
1

Seaetaiy Kelly was employed by Flatter and Associates ("Flatter"), pursuant to Flatter's contract with the NDU, to
provide services as a Senior Fellow to NDU. W'dh regard to his ethics obligations regarding his past employment
with Platter, Secretary Kelly has committed in his Ethics Agreement, signed January S, 2017, and the supplement to
his Ethics Agreement, signed February 2, 2017, to abide by the standards of conduct and ethics pledge restrictions,
as stated in those agreeme.nts.
2
In considering the underlying teaching activity that is the subject of this waiver, it is important to recognize that
Secretal)' Kelly's forty-five years of military service makes him uniquely qualified to fill this academic role.
3
Memorandum from Special Security Officer, Headquarters U.S. Marine Corps, Intelligence Depanment,
Washington D.C. to DC, M&RA. Washington DC. dated July 14, 2016.
'Memorandum from Headquarters, U.S. Marine Co1p5, Civil&. Administrative Law Branch to Commandant oftbe
Marine CoJPS. dated July 14, 2016.

2

 Providing a waiver in relation to this single academic engagement does not contravene the intent
or spirit of Executive Order 13770. The Executive Order and implementing Ethics Pledge
reinforce to each Administration appointee the importance of canying out their official
responsibilities in a manner that protects the public trust and ensures that the integrity of
government operations is not tainted by the actual or appearance of favoritism from personal
business interests. The Secretary's engagement, during his retirement, for which he received a
relatively small monetary honorarium5 and travel expenses was for the sole purpose of mentoring
a class of military officers to enhance their professional, management, and leadership skills. He
did not make any decisions relating to academic operations. Moreover, his general insights,
sharing of military leadership experiences and mentoring were independent of any connection to
a United States government program or policy nor did his participation support any commercial
interest.
It is critical to homeland and national security for the Secretary to have regular engagements
with national and international governments to effectively engage with stakeholders to develop
and build consensus around OHS programs, strategy and capabilities. The scope of these efforts
is both national and international in reach and his efforts will affect the operations of government
and non-government entities, domestically and abroad.
During a significant national security, immigration, cybersecurity, or other incident or
emergency, DHS's role could be undennined or could be detrimentally affected by significant
inefficiencies if the Secretary is restricted from interacting with any national or international
group or official solely due to the Government of Austtalia's involvement or participation. The
President and all United States officials would be required to bypass the Secretary to enable
necessary interaction with OHS, interfering with the organizational chain, information flow, fast
response, and loss of efficiency for OHS, the nation; and the international community.
Conclusion
The significant public interest in the agility of OHS to support national security efforts, lead
cybersecurity activities, carry out immigration operations, enhance aviation security, coordinate
with allies, and respond to emergencies requires that the Secretary be able to fully exercise his
leadership role in ongoing oversight and direction for United States government coordination and
collaboration with foreign governments.
Due to the scope of Section 1, paragraph 6, of the Executive Order and the definition of "fonner
client" in Section 2(i), a broad application of this prohibition would be detrimental to OHS,
government, and national security operations. Without a waiver, the Secretary would be
precluded from engaging with United States and Australian government officials, as well as the
international community, on a broad range of matters involving both response activities and
strategic planning. Barring such communication would have a negative impact on the
government's ability to implement OHS programs, including programs established to manage
immigration, cybersecurity risk, and aviation security and respond quickly and effectively to
threats, emergencies and other incidents. The Secretary's recusal from these communications
s The honorarium was 10,000 AUD or approximately $7,500 USO. Id.

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 would also deprive the foregoing officials the opportunity to provide input and bring concerns to
the attention of the Secretary. In light of his briefparticipation in a single academic course,
focused on sharing his personal leadership experiences, Secretary Kelly's involvement with the
Government of Australia in participating in this training program, is not the type ofbusinessoriented prior client relationship that the Executive Order intended to reach in protecting the
public trust.
For this reason, the Designated Agency Ethics Official for the Department of Homeland Security
has determined that it is in the public interest to grant to Secretary Kelly a waiver of the Ethics
Pledge restriction set forth in Section l, paragraph 6, of the Executive Order to enable him to
effectively caJTY out his duties as Secretary ofDHS. Pursuant to Executive Order 13770, Section
3, the Department respectfully requests such a waiver from the President or his designee.

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 Office of White House Counsel Waiver Certification
Pursuant to Executive Order 13770, Section 3, and as the President's designee authori7.ed to
grant such waiver, it is in the public interest to grant a waiver of Section 1, paragraph 6 of the
Executive Order to John F. Kelly, Secretary, United States Department of Homeland Security
("OHS") as pertains to the Govenunent of Australia. I have detennined that this waiver is
required to enable him to effectively carry out his duties as Secretary of OHS. Absent this
waiver, Secretary Kelly would be restricted for two years, beginning with his appointment date,
from participating in any particular matter involving specific parties in which his fonner client,
the Government of Australia, ("Australia"), is a party or represents a party. The role of the
Secretary is at the center ofthe Department 1s important national security and related missions.
The successful accomplishment of these OHS missions relies on extensive. open. and
collaborative communications within the Department and between the Secretary and the
President, United States Government officials and foreign govenunent officials. In authorizing
this waiver, I have considered the limited nature of Secretary Kelly's involvement with the
Government of Australia, while he was a retired military officer, and the critical national interest
served by authorizing Secretary Kelly to freely communicate with all members of the national
and international community regarding all aspects ofDHS's mission and operations. This
waiver will significantly promote and protect the public interest by enabling Secretary Kelly to
freely carry out the responsibmties ofhis office.
lltls waiver does not otherwise affect Secretary Kelly's obligation to comply with all other preexisting government ethics rules, other provisions of the Executive Order and with the other
commitments he made in his Ethics Agreement and amendments to his Ethics Agreement.

Donald f. McGahn II
Counsel to the President

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