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.
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 https://www.theatlantic.com/politics/archive/2017/02/kellyanne-conway-bowling-greenmassacre-alternative-facts/515619/. 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
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 https://www.nytimes.com/2017/01/22/us/politics/president-trump-inauguration-crowdwhite-house.html. 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.
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.