Law Professors File Ethics Complaint Against Kellyanne Conway

A group of 15 ethics law professors from around the country has filed bar charges against  White House counselor Kellyanne Conway.  For full disclosure, Conway is one of my former students at  George Washington University Law School (she graduated in 1995).   The letter from 15 professors alleged ethical violations of government rules as well as  “conduct involving dishonesty, fraud, deceit or misrepresentation.”  Most of the allegations in the letter are, in my view, without merit and seem overtly political.  The one issue that has already been raised in Congress and has a legal foundation is the alleged endorsement of Conway of the product line of Ivanka Trump.  That is a technical violation of federal rules, but the question is whether it was a venial rather than mortal sin.  The “violation” was the result of a side comment by Conway on television criticizing the decision of Nordstrom to drop the line.  The White House Counsel’s office let it be known that Conway had been “counseled” over the infraction.  However, ethics charges should not be a form of politics by other means and, with all due respect to these accomplished academics, this letter strikes me as raising largely political objections to Conway’s work as a spokesperson for the Administration.

 Some of the allegations are highly suspect as the basis for an ethics charge. Focusing on prior misleading or false statements, the professors accuse Conway of violating Rule 8.4(c) which states, “It is professional misconduct for a lawyer to [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”
For example, the professors  take  Conway to task for her false statement that there was a “Bowling Green Massacre.”  However, Conway soon thereafter apologized for misstatement.  The professors however suggest an intentional lie:
On several occasions, including in an interview on MSNBC in early February, 2017, Ms.Conway referred to the “Bowling Green Massacre” to justify President Donald Trump’s executive order banning immigrants from seven overwhelmingly Muslim countries. Not only was there no “massacre” in Bowling Green, Kentucky (or Bowling Green, New York, for that matter), but Ms. Conway knew there was no massacre. 

Although Ms.Conway claimed it was a slip of the tongue and apologized, her actual words belie her having misspoken: “I bet it’s brand-new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country,
were radicalized, and were the masterminds behind the Bowling Green Massacre. Most people don’t know that because it didn’t get covered.” See generally Clare Foran, The Bowling Green Massacre that Wasn’t, THE ATLANTIC, February 3, 2017, at Moreover, she cited the nonexistent massacre to media outlets on at least two other occasions. See Aaron Blake, The Fix: Kellyanne Conway’s ‘Bowling Green Massacre’ wasn’t a slip of the tongue. 

She has said it before.
WASH. POST, February 6, 2017, See Here 
The inclusion of such a controversy in my view wholly undermines the credibility of the ethics charge.  The professors are asking that the bar presume that Conway intentionally lied eve though such a lie would be immediately challenged and she later apologized.  Moreover, she was acting not as a lawyer but as a political spokesperson in such a capacity.
The letter also charges that Conway lied about the record under the Obama Administration.
Compounding this false statement, in that same MSNBC interview Ms. Conway also made a false statement that President Barack Obama had “banned” Iraqi refugees from coming into the United States for six months following the “Bowling Green Massacre.” Id. However, President Obama did not impose a formal six-month ban on Iraqi refugees.
He ordered enhanced screening procedures following what actually happened in Bowling Green—the arrest and prosecution of two Iraqis for attempting to send weapons and money to al-Qaeda in Iraq. 

The two men subsequently pled guilty to federal terrorism
charges and were sentenced to substantial prison terms. See Glenn Kessler, Fact Checker: Trump’s facile claim that his refugee policy is similar to Obama’s in 2011, WASH. POST, January 29, 2017, See Here.

This was not the first time Ms. Conway had engaged in conduct involving “dishonesty, fraud, deceit, or misrepresentation.” On January 22, 2017, on the NBC television show Meet the Press, Ms. Conway said that the White House had put forth “alternative facts” to what the news media reported about the size of Mr. Trump’s inauguration crowd. She
made this assertion the day after Mr. Trump and White House press secretary Sean Spicer accused the news media of reporting falsehoods about the inauguration and Mr. Trump’s relationship with intelligence agencies. See Nicholas Fandos, White House Pushes ‘Alternative Facts.’ Here are the Real Ones. N.Y. TIMES, January 22, 2017, at As many prominent commentators have pointed out, the phrase “alternative facts” is especially dangerous when offered by the President’s counselor. Moreover, “alternative facts’ are not facts at all; they are lies. Charles M. Blow, A Lie by
Any Other Name, N.Y. TIMES, January 26, 2017.
Once again, this reads like a political retort.  Are these professors seriously arguing that a White House aide inartfully discussing “alternative facts” is an ethics violation or misstating the Obama action is a punishable violation for an attorney?  The point of the Obama reference is that the prior Administration based such special measures on the basis of nationality, which is the central controversy in the Immigration Act.

These allegations destroy the legitimacy of the complaint.  The professors do raise one viable issue of improper conduct, but not one that ai view as suited for bar resolution.  During a Fox interview, Conway reacted to Nordstrom’s recent decision to drop Ivanka product line.  She clearly viewed the decision as political and struck out with what I took as a fairly tongue in cheek comment: “It’s a wonderful line. I own some of it. I fully — I’m going to give a free commercial here. Go buy it today, everybody. You can find it online.”

That was a clear mistake and a violation of federal rules.  The law is clear about barring such an endorsement under 5 C.F.R. 2635.702 barring the use of public office for private gain:

An  employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or  persons with whom the  employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the  employee is an officer or member, and  persons with whom the  employee has or seeks employment or business relations. The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.

While Conway can claim that this was an effort at being cheeky or humorous, she expressly endorsed a product line and, in light of the ongoing controversy over conflicts of interest in the Trump Administration, it was remarkably ill-considered and reckless.  However, this is a matter for investigation in the Executive Branch.  I assume that there is some discretion in distinguishing between violations that are substantive efforts to endorse a product and a passing statement like Conway’s.  I would expect that such a comment would generate at least a formal reprimand and the Administration has already stated obliquely that Conway was “counseled.”
The question is whether the Bar is the proper forum for such transgressions but a staff member who is new to executive service.  There are a host of such problems that arise in new administrations but one can make logical distinctions.  Again, I fail to see the basis for a formal ethics charge based solely on the product endorsement and view the other references as bordering on frivolous as the foundation for an ethics complaint.
What do you think?


229 thoughts on “Law Professors File Ethics Complaint Against Kellyanne Conway”

    1. I expected to find something about the ethics charges of Conway not some other unexpected …… I’ll pass.

    1. Some how I didn’t connect whatever that was with the Gang of Fifteen conversation. Are we reframing and redefining again? As i said never ask for facts they don’t exist in liberal land.

    2. I see the nominee for Secretary of the Navy has withdrawn citing family interests and business concerns. I cannot blame them. Why give up something successful to put up with a very large gaggle of failures especially those who are both failures and losers. More and more I’m thinking the only one’s trained to have the steel to put up with the crap are the professional military which does not exactly embody the notion of civilian control of the military – but then the only one of those required is the President. Perhaps the founders were trying to tell us something in the context of their own times. When you think about it those same trained to the environment senior leaders are also the one’s that are at the same time being trained to live in a very adversarial city where no one can be trusted. Not at all like the comfort of one’s own squad or platoon or company or even regiment. After that….it’s important to have something strong, a moral compass or even just some understanding of morals. We of course had and have our oath to the Constitution. Sad…the rest of you have nothing. .

  1. I’ll be light on you today. It may have been factual back then. It was somewhere around there when when Immigration and Naturalization etc. changed the rules on the meaning natural citizen etc. and many people, myself included, suddenly became eligible to run for President. The key wasthe wording on the Certificate of Ctiizenship issued to foreign born with US parentage. if it said naturalized in the last sentence no if like mine it said natural citizen since birth good to go.

    Now all you have to do is your due diligence research which if your doing more than C&B BS will be a natural thing to do. But if it’s just C&B BS meaning you are a subjectivist believer in fairy tails and other worlds etc. then you won’t.

    Since your stuff is generally only half donkeyed instead of all donkey nalga like the others I’ll give you that much but I won’t change your diapers….time to grow up and do a little stab a responsibility.

    1. That’s my ‘nice’ for the week the rest of the days I go back to being grumpy pedantic and factual. etc.

    1. The only reason to have a special prosecutor is when your entire Justice Department is suspect. Let’s see short of the new Secretary aren’t the rest all Obaminites?

      Issa may have a point. Sessions needs a bit of time to flush the main toilet valve

      1. Uh,

        No. The top tier are all Trump appointments and the lower level are career bureaucrats appointed by Bush, yes there are some Obama holdovers that are critical to National Intelligence. So, if you want to call critical employees Obama holdovers feel free to.

        I would trust the Bush and Obama bureaucrats more than I would anything Trump appointed. Simple reason, Trump and the Administration have made it clear that the Rule of Law, the Constitution and Country are subservient to anything that gets in the way.

        Side Chatter says more investigation are forthcoming for Trump and the Administration. There are some here that remember the Nixon investigations.

        1. side chatter? what is that? Is that like ‘I made it up myself or someone else made it up for me and I want to pretend it has some validity? You went to all that trouble when you could havejust said, Duuh?

          Let’s see 113,543 and you make up side chatter about which percent of that number of Dept of Justice Employees and offer side chatter as a source?

          Stupid is as stupid does but thanks for helping us gain even more votes. By the way have any of you done anything at all besides side chatter on getting rid of the electoral college ?

          Or explaining why you went the popular vote route three times in twenty years?

          Should have read the Constitution. Marx, Lenin and Adolf aren’t doing you much good.

          113, 543 is the number of employee(2012) not available for 2016 – in the Department of Justice Sessions has been Secretary since Feb 9th Today is Feb 25th. Fourteen days counting weekends. Sorry.. I forgot the Congress took a vacation.

          side chatter? is that out of the same PC fictionary as pushback?

            1. No I just say who is going to be the next leftist to not betray his or her oath of office. That would be headline news.

      2. Trump was very happy with Comey’s performance prior to the election and wanted to keep him on.

        1. And that has what to do with the subject of the discussion and the Gang of Fifteen who apparently stepped on their tweeters?

          Or is this going to be – can’t handle the facts but we have sidechatter and pushback. Is that code for fairy tails?

        2. He may have been selectively happy. You think he was happy when Comey gave her a pass on criminal charges by creating an intent requirement not in the governing statute?

          1. and the new President said, “i’m not going to go after them but I’m not going to get in your way so do the job.” I’m sure he isn’t spiteful but there has to be a tiny little measue of payback pleasure in the current continuing investigations and seeing his road block of last year on the new list of ‘persons of interet..

            1. Yes, Trump is the New Person of Interest. Could not happen to a more dishonest sloth.

              1. Your wrong. It could happen to you. But thank you for a perfect name Progressives? = Dishonest Sloths.

                1. See, you won’t want to demand a Sloth to make a Trump comparison. A Sloth pretends to be nothing it’s not, Trump on the other hand is a pretender. But the Pretender in Chief forgot the first rule of pretending, never lie about people, places or things. They will always raise an ugly head at the most inconvenient time.

                  Trump pretends well, he has had a full life of rehearsals. The reason he does so well is he is pathological and he has swarmed himself with psychologically damaged people that give him advice. They are a full food chain, the feed off of each other, ready to devour at the first weakness. At least Bush and Obama surround themselves with people who were good at doing the assigned take. Trump, feeding his ego and unable to focus can’t get past his own shadow, he as Hitler could never satiate the ego, always having to have everything grandiose or somehow someone cheated them or they were not properly listened to. Sad indeed.

                  The ACA will be in place despite the actions of congress and the Tweet in Chief cannot do anything substantial, it will not get done and signed by the Toddler in Chief because he did not think of it, or will claim that it was his idea regardless of the real facts. You have see much of this behavior already. Too much to say, and the sore winners are too busy being megalomaniacs to figure out the next step.

                  It’s sad, and I thought Ronald was bad. Wasn’t it Trump that started the whole birther thing? Could Trump have been classified as a sore loser? Interesting that the roles reverse and he’s still a sore winner. Why, because he didn’t get his egos satisfaction. So, everything has to be that much more grandiose. Poor Child.

                  1. Can’t win a whole article with a half wit. But you can enocurage a half wit into publicly demonstrating a lack of any wit. Often times the key points of a debate are made by letting the loser define the loss.. for this one the bar was set lower than even Hillary could manage.

                    Thans for the help sport……you did an amazingly great job of increasing our voter strength.

                    1. Good move Paul. One can always count on the left to forget about minor things like proof and accuracy and realism. After all it is so much easier just to repeat the programming when your a helpless clonette in a collection of collectives. What do you bet he spends any time at all trying to repudiate their own false story which last I looked hadn’t changed from the latest Immigration and naturalization ruling. but a valuable lesson learned. NEVER believe anything the left says.

                      Ever checked the numbers on the balanced budget with a surplus story? Had a guy who worked for Treasury explain it. Three budgets. OMB, CBO and White House. Pick the one that fits the story and if it doesn’t change it a little. Tip off? How can there be a surplus when the debt went up not down and no payments were made? Second tip off. Moving debt forward is a simple as rolling T Bills into higher percentage of return with a maturity date of sometime during the next guys administration.

                    2. And the raw material was cock-and-bull that his publisher put into promotional circulars back in 1995.

                    3. and you of course have samples of cock and bull pubications finest to share with us?

                    4. dds – are you talking about the blurb on his publication about being from Kenya?

                    5. I thought it meant Cruz but who knows they attack so many ….hard to keep track….. then when the inevitable reversal occurs it’ s more confusing. Just ask for something factual and it usually dries up rather quickly.

                    6. This is one case where it is safe to say “At this point does it really matter?” I thought about that? Would it stop the pension and save some money?

                    7. His mother hadn’t yet finished her dissertation and never held a faculty appointment anywhere and his father was never the Finance Minister (he was a 2d echelon official of the Transportation ministry, IIRC). His agent was hopelessly inept or hopelessly mendacious.

                    8. He also does not come from a disadvantaged or poor background. His Grandmother in Hawaii was bank Vice President for one. I would re-categorize it to a family background that learned how to take advantage….

                    9. This is one case where it is safe to say “At this point does it really matter?” I thought about that? Would it stop the pension and save some money?

                      What are you talking about? Sober up.

  2. Really, your interpretation seems like you are describing the President and the Administration.

    The administration is like being schizophrenia on steroids.

  3. I believe in the Country, the Constitution and the Rule of Law.

    This is supposed to be a given for the President. However, Trump and his staff consider themselves above the above quoted. We cannot have a democracy nor a just Republic if anyone of the above are not met.

    1. I believe in the Country, the Constitution and the Rule of Law.

      Raoul Berger and Nat Hentoff were the last pair of Democratic voters for whom this wasn’t a lie.

      1. Implication that the rest of the voters believe in neither, a Democracy or a Just Republic. Doesn’t say much for the Truth or the Trump Administration.

        1. Democratic voters fall into two categories:

          1. People not that invested in public affairs

          2. People who want what they want and have no interest in procedural norms or legal security. Invocations of “The Constitution” have no more substantive content than saying ‘abracadabra’. It’s just a signal that the speaker is striking attitudes.

          Catagory 3 might include Jerilyn Merritt or Alan Dershowitz, at least some portion of the time. That’s it.

        2. Why do I have a huge problem believing you? if you are looking for a home you won’t find it waving little red books around while conducting pogroms.

    2. We do not have a democracy. We have a Republic based on a foundation of the principles of democratic representation and direct representation. Those who make that mistake are not well read enough to comment. There is a Democracy or pure Democratic form of government. there is a pure republic form and there is the Constitution of the United States of Americ which uses the principles of both to form A Constitutional Republic.

      We are NOT a Democracy nor will you find that word used that way in our founding documents.I did not see it in the false version floating it around. .

  4. On this site, it always comes down to people that believe party over country every time.

    1. Well, you and the other witless partisans could always decamp elsewhere.

    2. No it does not and you are making the classic mistake that got the Democrats butts kicked out of office everywhere at every level and got an outsider in. Big problem is your PC definitions don’t work.

      Let = Government over people and citizens
      Center = Constitution in a Constitutional Republic
      Right = the old Ruler by grace of God etc until Louis IV got his head chopped off and left that area blank

      Right now and since 1776 is, as described by the founders the home of the ultimate power the self governing independent thinking responsible individual citizen and it’s overlapped with the center the Constitution.

      Nowhere in that definition does it say democrat Dino republican rino liberal or conservative.

      But we managed to find each other, knit our groups together and come up with some easy to follow goals.

      1. Crush Clinton and with her the secular progressices with their foreign philosophies
      2. Demolish the Democrats aka a dozen other names but all controlled by the secular progressives
      3 Ravage the Republicans who for the most part were the right wing of the left.

      You think one party playinng footsie with another until they were not two partys but one two faced party.

      We thought of it is a clear choice of a base of the principles of representative democracy supporting a Constitutional Republic VERSUS a Totalitarian Socialist Autocracy.

      Now if you are still living in the dark ages with such a silly ass notion your problem we are in a clear cut openly stated counter revolution and we use what tools we can to get the job done.

      Trump happened to fit the mold perfectly.

      The rest was simple

      Quit Enabling
      Take Control
      Make Changes

      and for our comrades in the military Remember two things your oath office and we support you fully.

      To support and defend the constitution against all enemies foreign and domestic.

      If that means tanks in the streets so be it.

      But we prefer a straight up counterrevolution using ballots not bullets.

      Our side carried the day. Clinton was Crushed, Democrats demolished and the Repubican s ravaged no mattere what face they put on it today. and the small group who were decent citizens are now running tht party – not McCain and the left over RiNOs.

      As for the other side don’t know don’t care they either find the way to get in firm touch with the center the Constitution or we’ll do them in again.

      In Ukraine they are using real bullets trying to find freedom and independence. Here we are using the bote etc to win back our freedom. So what party is that?

      Constitutional Republic Party – which is convenient made up name there isn’t one……YET.

      and you other witless partisans can decamp anywhere else. Not here.

      1. in tribute to dyslectic keyboars. ‘are using the vote etc’, ‘Not here, Not on our watch. But hey! life is looking good from the moderate center and all our varied groups learned a great lesson. Our majority is greater than your parts.

  5. JT is a wise and judicious man. Ms. Conway’s politics are far from his. But he vouches for her intellect and ethics. That’s all I need.

    1. Conway, Spicer and Priebus are all sent out to defend the president’s lies. The fish rots from the head.

      1. Nick it was exactly that point that led me into examining the nature of the attack and it’ substance. That’s when the wording fell apart. But had it been presented any other way that due diligence might not have occured. Happily the entire episode was laid bare and hopefully to rest since the results seem to have sent the accusers into hiding. All of that, the meat of it, thanks to some of our regular participants who took the time to assist in the explanaiton of it all.

        One cannot real survive here if their efforts are not truthful or worse are slothful.

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