Ethics Issues and Resolutions: The Conway Case

March 14, 2017
posted by Bob Bauer

Congress, the Office of Government Ethics, and the White House have been lobbing views back and forth on whether the White House is subject to executive branch-wide ethics standards. It all started with the White House Counsel’s response to Kellyanne Conway’s exhortation to the public to” go buy” Ivanka Trump-branded line of products.

This Administration’s complex–and in the perspective of critics, troubling–position on core ethics issues would seem to make it especially important for the resolution of a case like Conway’s to go smoothly. The President has to show that he can successfully deal with the conflicts presented by his and his family’s business interests. He faces deep doubts about the structure set up for this purpose, which includes control of his interests put in the hands of his own children, one of whom recently declared that the Trump brand is “the hottest it has ever been.” Then there is the ambiguous if not dubious trail of statements from the Administration about how Mr. Trump understands ethical constraints. Early on, the President said he had been advised that he was free of any limits under federal conflict of interest regulation, while his Chief of State averred that every step would be taken to avoid any “undue influence” of business interests over the Administration’s policies and actions. And the President has not kept his executive duties apart from his commercial interests, just this last weekend holding meetings at the Trump National Golf Club in Virginia.

So all who are involved in settling or overseeing the conclusion to the Conway episode– the White House, OGE and the Congress–have had special obligations to be clear about the issue and the reasons for the disposition. The public would then learn something about the ethics Standards and rules, about how the Administration will approach their interpretation and enforcement, and about whether there are holes to be filled or procedures to be tightened.

So how has it gone? Not especially well, except for the response from one senior Member of Congress, Elijah Cummings, who has raised the key questions that now have to be answered.

The White House View: The Deputy White House Counsel for Ethics and Compliance, Stefan Passantino, advised OGE that he had considered the Conway matter and concluded that Ms. Conway’s comments “implicated” the prohibition on the misuse of official position to endorse products, services or enterprises. He concluded there was no threat of a reoccurrence, and reported that Ms. Conway had “acknowledged her understanding of the [ethics] Standards and affirmed “her commitment to abiding by them in the future.”

In short, Mr. Passantino concluded that this was enough to close out the matter, with no additional disciplinary action required.

The White House Counsel and his team are properly credited for quick attention to the issue and the public letter informing the OGE of the disposition. That office should not fare so well in an evaluation of the substance of the response contained in that letter. Mr. Passantino could have said what seems fairly clear: that Ms. Conway’s statements did not merely “implicate” the relevant rule, but violated it. He chose a slippery term when he could have been clear and precise, even if being clear rather than evasive would not have prevented him from concluding that the violation, in the particular circumstances, did not merit more formal discipline.

Mr. Passantino’s given reasons for skipping disciplinary action add to the problem of a deficient public accounting. He absolves Ms. Conway of “nefarious intent,” apparently because she was speaking in jest (in a “light, off-hand manner”), and she was, he writes, standing up for a boss whom she believed to have been unfairly treated. It is hard to follow how these intentions and motivations work together to attenuate the apparent violation. It is one thing to say she was joking, and another to say that she was out to defend the President from his critics. Is it OK to defend the President by violating an ethics Standard so long as there is a bit of humor thrown in?

The White House Counsel’s conclusion that Ms. Conway need not be formally disciplined, only “counseled,” might well be reasonable. But then a forthright statement that she violated the rule would have been in order. The Passantino resolution could have required of Ms. Conway a clear statement of responsibility. That, too, is missing, likely a result of the finding that her conduct only “implicated” the rule against commercial promotions. She merely “acknowledged her understanding” of that rule. There is a hint of responsibility-taking in her further commitment to follow the ethics Standards in the future–but that is what it is: a hint.

Something like this would have provided a crisper, unambiguous accounting:

Ms. Conway’s comments present on their face a violation of the rule against misuse of official position. We have so advised Ms. Conway, and in a letter to this office, she accepts responsibility for her actions. In that letter, she explains that [reasons for lack of intent etc]. Taking into account her acceptance of responsibility, the apparent absence of an intention to violate the rule, and her commitment to guard against these and similar comments in the future, we have concluded that no further action is required.

The Passantino letter is not crafted with any such directness.

Moreover, the letter includes a footnote in which he notes that there are “many” OGE regulations with which White House employees are not required to comply. The rule “implicated’ by Ms Conway’s statements is apparently not one of them. He says nothing about the others, or why the Standard against misuse of official position, which he concedes that the White House staff must follow, is different.

What Passantino has produced, then, is a document notable for its studied lack of clarity. It accepts that there is a binding Standard in this case, but somewhat gratuitously denies that the ethics Standards as a whole apply to the White House. There is no explicit statement that a rule was violated, only that one was implicated and Ms. Conway does not in unambiguous terms accept responsibility. The explanation for not taking disciplinary action is unfocused.

The OGE View: In letters to the White House and the Hill, the Director of the Office of Government Ethics, Walter M. Shaub, Jr. states his judgment that disciplinary action in the Conway case would have been appropriate. He advised Mr. Passantino that letting things go with a mere counseling of Ms. Conway “risks undermining the ethics program.” At the same time, in his letter to the House Committee on Oversight and Government Reform, he conceded that he was powerless to do more. It was up to the President to make the decision about imposing discipline, and, acting on his behalf, the President’s counsel had evidently made it.

Mr. Shaub also objected strongly to any suggestion that there were gaps in the application of the ethics Standards to White House employees. He stated OGE’s position that there is “no legal basis,” for the claim, and at any rate, “it is critical for the public’s faith in the integrity of government that White House employees be held to the same standard of ethical accountability as other executive branch employees.” This line of argument is consistent with his emphasis in the past on “tradition’ and “policy”, on what the President, or any president, should do.

Director Shaub undoubtedly has done well to highlight the mission of his office and the importance of its work. As a regulator, however, he would do still better to separate the appeals to tradition, policy and moral obligation from the clarification of what the rules, in fact, are. For example, he did this in a letter to the organization Cause of Action, when he pointed out that it had incorrectly disputed the application to White House staff of the rule prohibiting the promotion of commercial products. If, in his judgment, there is a gap between the Standards and traditions or sound policies, he should be free to identify the omission and recommend a solution.

One Hill View–Representative Cummings: Representative Cummings, the Ranking Member of the Committee on Oversight and Government Reform, then wrote to White House Counsel Don McGahn for clarification of the White House’s position on the extent to which White House employees were exempt from OGE regulations. Cummings cited the Shaub objections. He then puts to the White House specific questions:

Do you believe that OGE has the legal authority to oversee the ethics program for the entire executive branch?


What specific OGE regulations do you consider inapplicable to employees of the Executive Office of the President?


Does your position differ depending on the regulation and the roles or duties of different employees of the Executive Office of the President?


What is your justification for considering employees of the Executive Office of the President exempt from specific OGE regulations?


These are clear questions, and clear answers to them would supply what the exchanges over Conway’s comments, and the resolution of the case, so far have lacked.

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