One of the most revealing incidents involving ethics since President Trump took office was Counselor to the President Kellyanne Conway’s clear violation of ethics rules when she endorsed Ivanka Trump’s accessories and clothing line. While Ms. Conway’s violation itself was concerning, the White House’s attitude toward ethics was exposed by its reaction and ultimate refusal to take any meaningful disciplinary action against her.

The incident began on February 9, when Ms. Conway endorsed Ivanka Trump’s fashion products in an interview on Fox News as a way of responding to Nordstrom dropping the line and President Trump’s tweet that his daughter had been treated “so unfairly.”[i] Ms. Conway first told viewers, “Go buy Ivanka’s stuff is what I would tell you,” and a few moments later added, “I’m going to give a free commercial here: Go buy it today, everybody; you can find it online.”[ii] Ms. Conway unquestionably made these statements in her official capacity. She was introduced on the program as “Special Counselor to the President,” and spoke from the White House briefing room in front of the White House seal and the American flag.[iii]

Federal ethics regulations concerning the “use of office for private gain” clearly prohibit any employee from using her government position or any authority associated with her public office to endorse “any product, service or enterprise.”[iv] One example provided in the regulations even states that a government employee “may not appear in a television commercial in which she endorses” a product.[v]

Ms. Conway’s endorsement worked. Following the interview, sales of Ivanka Trump’s products soared.[vi]

Despite the clear violation, the White House has largely rebuffed calls to discipline Ms. Conway. The same day the interview aired, the chair and ranking member of the House Committee on Oversight and Government Reform requested that OGE investigate Ms. Conway’s remarks, as did CREW and other ethics organizations.[vii] The White House quickly stated that it had “counseled” Ms. Conway on the subject, but refused to elaborate on what that counseling entailed.[viii]

At the same time, President Trump made clear he did not believe that Ms. Conway did anything wrong. One White House official said the president told Ms. Conway in a meeting that “he backed her up ‘completely’” and said he “‘hated’ the word ‘counseled’” being used,[ix] and Ms. Conway asserted that President Trump “backs me 100 percent” and tweeted that “POTUS supports me.”[x] A White House spokeswoman added that President Trump “‘understands she was merely sticking up for a wonderful woman who she has great respect for and felt was treated unfairly.’”[xi] These assertions from the president undercut any statements from White House staff suggesting that Ms. Conway’s actions could have constituted any type of problem.

The next request for action came from Office of Government Ethics Director Walter Shaub, Jr. In a February 13 letter to White House ethics officer Stefan Passantino, Director Shaub noted there was “strong reason to believe” Ms. Conway violated the rule and that disciplinary action was warranted, and recommended the White House investigate and consider taking disciplinary action.[xii]

In its February 28 response, however, the White House made clear that no further action would be taken.[xiii] The letter claimed Ms. Conway made the statement “in a light, off-hand manner while attempting to stand up for a person she believed had been unfairly treated and did so without nefarious motive or intent to benefit personally,” and concluded she “acted inadvertently” and was “highly unlikely to do so again.”[xiv] The only apparent consequence of Ms. Conway’s violation, based on the letter, was that Mr. Passantino personally reviewed with her the ethics rules White House employees are expected to follow, and that he advised that her comments “implicated the prohibition on using one’s official position to endorse any product or service.”[xv] In contrast to this light reprimand, other executive branch employees who violate the rule prohibiting misuse of office can face a multi-day suspension, loss of pay, or even termination.[xvi] The letter also took the concerning position that many OGE regulations do not apply to many White House officials.[xvii]

Director Shaub questioned the White House’s decision on March 9, strongly recommending that Ms. Conway be disciplined.[xviii] “Not taking disciplinary action against a senior official under such circumstances,” he wrote, “risks undermining the ethics program.”[xix] Director Shaub also strongly disagreed with the “extraordinary assertion” that the rules might not apply to employees of the Executive Office of the President.[xx] It does not appear, however, that any further action has been or will be taken against Ms. Conway.

The White House’s cavalier attitude toward ethics may have contributed to a similar incident just a few weeks later. Another senior Trump administration official, Treasury Secretary Steven Mnuchin, breached the same rule as Ms. Conway did on March 24 when he publicly endorsed a movie on which he was an executive producer.[xxi] Again, there were quickly calls for an investigation and disciplinary action.[xxii] In contrast to the Ms. Conway response, Secretary Mnuchin took action to remedy his violation. As noted by Director Shaub in a March 31 letter, Secretary Mnuchin “publicly acknowledged responsibility” for his actions by sending a letter to OGE conceding that “he should not have made remarks about his film” and pledging to “exercise greater caution with respect to the Standards of Conduct in the future,” and announced his intent to complete additional remedial ethics training.[xxiii] As a result, Director Shaub determined there was a “meaningful distinction” from the response to Ms. Conway’s conduct.[xxiv]

In the latest similar violation, on April 24 the State Department removed an article apparently promoting President Trump’s Mar-a-Lago resort, including referring to it as the “winter White House.”[xxv] The property is held in a trust of which President Trump is the sole beneficiary.[xxvi] After public outcry, including criticism from several members of Congress and outside ethics watchdogs,[xxvii] the State Department took down the post, admitting that it had not been vetted for potential legal or ethical issues before being posted.[xxviii]

Ms. Conway clearly violated the rules when she endorsed Ivanka Trump’s products. A White House that takes ethics seriously would have responded very differently to that violation, and perhaps averted the subsequent violations.

 

[i] Kellyanne Conway on Ivanka Trump’s Fashion Line: ‘Go Buy It Today!’, Fox & Friends, Feb. 9, 2017, available at http://insider.foxnews.com/2017/02/09/kellyanne-conway-ivanka-trump-retailers-go-buy-her-stuff.

[ii] Id.

[iii] Id.

[iv] 5 C.F.R. § 2635.702.

[v] 5 C.F.R. § 2635.702(c).

[vi] Kristine Phillips, ‘Go buy Ivanka’s stuff,’ Kellyanne Conway said. Then the first daughter’s fashion sales exploded, Washington Post, Mar. 10, 2017, available at https://www.washingtonpost.com/news/business/wp/2017/03/10/go-buy-ivankas-stuff-kellyanne-conway-said-then-the-first-daughters-fashion-sales-exploded/.

[vii] Richard Pérez-Peña and Rachel Abrams, Kellyanne Conway Promotes Ivanka Trump Brand, Raising Ethics Concerns, New York Times, Feb. 9, 2017, available at https://www.nytimes.com/2017/02/09/us/politics/kellyanne-conway-ivanka-trump-ethics.html.

[viii] Id.

[ix] Sunlen Serfaty and Dan Merica, Kellyanne Conway Apologized to Donald Trump After Ivanka Clothing Line Comments, CNN, Feb. 10, 2017, available at http://www.cnn.com/2017/02/10/politics/kellyanne-conway-tweets-potus-supports-me/.

[x] Conway Says Trump Has Her Back Amid Ivanka Comment Controversy, Fox News, Feb. 10, 2017, available at http://www.foxnews.com/politics/2017/02/10/conway-says-trump-has-her-back-amid-ivanka-comment-controversy.html.

[xi] Julie Bykowicz and Bernard Condon, White House Adviser ‘Counseled’ After Brand Promotion, Associated Press, Feb. 9, 2017, available at http://bigstory.ap.org/article/c41ee620816a492190ee249d282cedf9.

[xii] Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics to Stefan C. Passantino, Deputy Counsel to the President, Feb. 13, 2017, available at https://pbs.twimg.com/media/C4pcNvwWcAAz3a7.jpg:large.

[xiii] Letter from Stefan C. Passantino, Deputy Counsel to the President, to Walter M. Shaub, Jr., Director, Office of Government Ethics, Feb. 28, 2017, available at https://assets.documentcloud.org/documents/3477259/WH-to-OGE-28Feb17.pdf.

[xiv] Id.

[xv] Id.

[xvi] Matea Gold, White House rebuffs ethics office recommendation to discipline Kellyanne Conway, Washington Post, Mar. 1, 2017, available at https://www.washingtonpost.com/news/post-politics/wp/2017/03/01/white-house-rebuffs-ethics-office-recommendation-to-discipline-kellyanne-conway/?utm_term=.a874a7e130b6.

[xvii] Letter from Stefan C. Passantino, Feb. 28, 2017.

[xviii] Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics to Stefan C. Passantino, Deputy Counsel to the President, Mar. 9, 2017, available at https://oge.app.box.com/s/r2t4v8ftjmkx4cfgfolqzievuhcvrfj2 .

[xix] Id.

[xx] Id.

[xxi] Jeremy Venook, Holy Ethics Disaster, Batman!, The Atlantic, Mar. 24, 2017, available at https://www.theatlantic.com/business/archive/2017/03/steven-mnuchin-lego-batman-movie/520782/.

[xxii] David Lawder, Senator seeks ethics probe of Mnuchin’s ‘Lego Batman’ comment, Reuters, Mar. 28, 2017, available at http://www.reuters.com/article/us-usa-treasury-ethics-idUSKBN16Z062.

[xxiii] Letter from Walter M. Shaub, Jr., Director, Office of Government Ethics, to Sen. Ron Wyden, Mar. 31, 2017, available at https://www.oge.gov/web/OGE.nsf/All%20Documents/282B38EF4C78AD20852580F8004D2768/$FILE/Letter%20to%20R.%20Wyden.pdf?open.

[xxiv] Id.

[xxv] Anne Gearan, State Department Website Removes Article Touting History of Trump’s Mar-a-Lago Estate, Washington Post, Apr. 24, 2017, available at https://www.washingtonpost.com/world/national-security/state-department-website-touts-glittering-history-of-trumps-mar-a-lago-estate/2017/04/24/bd298e44-292f-11e7-b605-33413c691853_story.html.

[xxvi] Jennifer Rubin, Trump’s Brazen Self-Promotion Crosses the Line, Washington Post, Apr. 25, 2017, available at https://www.washingtonpost.com/blogs/right-turn/wp/2017/04/25/trumps-brazen-self-promotion-crosses-the-line/.

[xxvii] Gardiner Harris, U.S. Embassies Post Article Extolling Trump’s Mar-a-Lago, New York Times, Apr. 24, 2017, available at https://www.nytimes.com/2017/04/24/us/politics/mar-a-lago-winter-white-house-state-department.html; Matt Shuham, Watchdog Groups File Complaints Over State Dept. Mar-A-Lago Promotion, Talking Points Memo, Apr. 25, 2017, available at http://talkingpointsmemo.com/livewire/watchdog-groups-common-cause-complaint-mar-a-lago-share-america.

[xxviii] Anne Gearan, Mar-a-Lago Article Not Reviewed Before Publication on Government Site, Washington Post, Apr. 25, 2017, available at https://www.washingtonpost.com/world/national-security/mar-a-lago-article-not-reviewed-before-publication-on-government-site/2017/04/25/2a95e418-29ef-11e7-a616-d7c8a68c1a66_story.html.