Peter Orszag, the former star director of the Office of Management and Budget (OMB) during President Barack Obama’s first two years, is said to be in talks to join Citigroup. According to the Financial Times, “People familiar with the situation said Mr Orszag, who left the White House team in July, was likely to be offered a position dealing with clients and top government officials rather than running a business.”

If Orszag were to take such a position it would likely be complicated by an Executive Order signed by President Obama on his first full day in office.

On January 21, 2009, President Obama issued an Executive Order that dealt directly with ethics in government, particularly the revolving door between business and government. The order declared that all those appointed after January 20 would be “contractually committed to” the contents of the order. This included the following passage, one that relates directly to Orszag’s post-employment prospects:

“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, I agree that I will abide by those restrictions for a period of 2 years following the end of my appointment.

“5.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 for the remainder of the Administration.

The order declares that Orszag may not lobby any covered executive branch official “for the remainder of the Administration.” If Citigroup is looking to bring him on to deal with “top government officials,” than Orszag would be likely find himself in violation of the executive order.

This, of course, brings us to a discussion of what constitutes lobbying in this situation. Would Orszag be talking to government officials to gather information or to sell policies? Is there a difference there? Could Orszag’s ability to gather intelligence from government officials be used to lobby the executive branch or Congress?

The Order states that lobbying is defined as “to act or have acted as a registered lobbyist.” Orszag may be able to side-step this by never registering as a lobbyist and remain a non-lobbyist lobbyist. If his job is as the Financial Times states, “a position dealing with clients and top government officials rather than running a business,” it will be very difficult for him to remain below the threshold of contacts with government officials to not register as a lobbyist.

It is highly unlikely that a former government official hired to contact current government officials can avoid activities that would constitute lobbying. In this case, what does that mean for the President’s ethics pledge? There is no real enforcement mechanism aside from Scout’s honor.