When Kellyanne Conway decided to “advertise” Ivanka Trump’s brand she made the kind of ethics mistake that would get you fired in the Obama/Biden White House. Or, at least, I would have thought it was worth firing an employee if they had done that on my watch.
During 2014-15, I took leave from my position as a professor of law at Georgetown University Law Center to serve as chief Counsel to Vice President Biden, and among many, many other things I did, I supervised ethics compliance for employees in the vice president’s office.
{mosads}The basic principle is simple: You cannot profit, or even have the appearance, of profiting from or exploiting a White House position. Our motto was “squeaky clean.” We spent hours and hours counseling young members of the staff about the do’s and don’ts.
Trust me, they didn’t like all those lectures, but they complied, and we were proud of it.
Kellyanne Conway is a lawyer and presumably should know the basic rule that no one in the White House can profit off what belongs to the American people. If Jared Kushner, a White House official, were to tout his wife’s products at an official event, he would commit a crime, punishable by up to a year in jail.
Under 18 U.S.C. 208, no official can have a personal financial interest in a “particular matter” on which he makes an official decision or pronouncement. In the past, presidents and vice presidents in the past have made strong efforts to comply with its dictates by divesting themselves of their businesses so as not to run afoul of the rules.
The Office of Government Ethics has specific regulations forbidding governmental officials from endorsing products.
5 C.F.R. 2635.702 says that: “An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise … including nonprofit organizations of which the employee is an officer or member.”
The principle is broader than simply profit, since we have no idea whether Conway will profit. The idea is that you can’t endorse your favorite product because you are working for all the American people. Remember the ambassador who challenged his fellow ambassadors with an “ice bucket” to benefit his favorite charity: that, too, violates the ethics rules.
He can’t pick his favorite charity because he has to act for all Americans, not just the Americans who like that charity.
Difficult ethical questions can, in some cases, arise about when an employee is acting in his or her official capacity. The Conway interview, however, does not present a difficult question. She was introduced as a White House official.
Presumably, the network only wanted to interview her because of her official job. The White House was in the background of the interview. It would be hard to say that this does not give an appearance that the White House is endorsing Ivanka Trump’s clothing line given that the words used were specifically “I’m going to give a free commercial here. Go buy it today, everybody.”
The Center for the Responsibility of Ethics in Washington has filed a complaint with the head of the Office of Government Ethics, citing Conway’s violation of the anti-endorsement regulation. Other than such a complaint, however, there may be no way to enforce the anti-endorsement principle.
Current statutes bar many ethics violations as a matter of criminal law and allow the attorney general to bring actions for civil penalties for specific unethical behavior.
There is no specific law, however, that bars product endorsements and enforces that prohibition with criminal or civil penalties. I expect this is because most White House staffers would not think of endorsing their boss’s favorite clothing.
Perhaps Congress should consider adding new provisions demanding greater penalties for officials who violate ethics rules. Title 18 is awash with minimum mandatory penalties applied to drug use, a very serious offense.
One wonders why there are no minimum mandatory financial penalties for clear violations of ethics rules by the highest officials in the White House.
Victoria Nourse is a professor at Georgetown Law. From 2014-15 she served as counsel to Vice President Joe Biden, and previously served as his senior advisor when he chaired the Senate Judiciary Committee.
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