Academia, Media, Politics, Society, Uncategorized

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 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
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 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.
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. Seems like harassment of conservatives to me.

    Only one party allowed in the WH, apparently.

  2. There was nothing “technical” about KellyAnn’s violation regarding endorsements. She did it. She didn’t accidentally do it. She didn’t do it in her sleep. She did it with gusto.

    Protect her if you must but don’t use the “technical violation” gambit.

    1. I think it is more that she wasn’t intentionally trying to literally sell Ivanka Trumps line. She was frustrated with the incessant hammering from the media and she said it out of that frustration. That Nordstrom dropped her line does not appear to be related to an actual drop in sales from what I can tell. Why are people taking it out on Ivanka Trump? Do you really think that if DJT wasn’t president that Nordstrom would have dropped the line? Should Kellyann Conway have said it? No. Was she disciplined for it? Yes. It seems like a relatively small infraction given all the other important things that are going on in the campaign, don’t you think?

        1. Amazon just sent me a refund notification they are unable to fulfill my Ivanka perfume order due to overwhelming demand.
          Normally they would put something on backorder for several weeks.
          I guess Bezo changed his mind.

          1. Bezo Boy is ALL about dollars. That’s why you can buy the manual with the instructions for the Oklahoma City Bomb on Amazon. Kindle 1.99 if I remember right. But then it was Carter that lifted the clasdification and the US Gov’t Printing Office that profited.

      2. It seemed like a visceral reaction rather than an attempt to profit anyone. Every time I hear someone on the left or right boycott something, my immediate reaction is go buy it. And encourage friends and family to do likewise.

        1. Amen. It was the controversy that got me to buy Jackie Evancho albums, the quality that got me to buy all available and her understandable for a 17 year old under pressure from the record label company to say I’m confused Mr. Prez any chance we can discuss this? The out come from that will guide my next purchase.

          As for Madonna, Arianna and that has been croaking out another boring recital of ‘People’ at a million per appearance (what’s her name?) Not one thin dime and the dog gets the bone and the meat.

    1. Isn’t there something about this hosts father being the architect of the Mideast? If so I’d like her to do a whole show on him.

  4. Quoting the late great Justice Nino in response to yet another liberal’s complaint about the SCOTUS ruling in Gore v Bush:”Get over it!”

  6. Off topic, as a combat vet maybe JT could discuss H.R. 6416 sometime along the way as a “what do you think” topic”?

  8. I like Kellyanne but she gets tongue tied sometimes. She also likes limb climbing without seeing who’s behind her. That said, she runs a good campaign.

  9. The left is bent on destroying this nation and the overthrow of a legitimate election. The constant attacks by the left and refusal to accept the results of the election will ultimately result in something they have not planned on. They forget the election was held according to the laws of this nation and the will of the electorate. No Putin was not in the booth pressing buttons and the popular vote is not how we elect a president. It week or so it will be a another bogus attempt.

  10. She has told so many lies that she is unwelcome in some venues. She has no credibility. But, of course, lawyers will say anything in support of their clients.

    1. She has told so many lies that she is unwelcome in some venues. S

      This is a tolerant venue, so you haven’t been s***canned, sister. Don’t test everyone’s patience so much.

  13. Where are the moderate liberals? Why are they not speaking out? And how long is going to take more of them to see through this? I am a moderate liberal and don’t like it. I don’t like the constant attacks on every single person and thing in this administration. Even if you disagree with every policy of Donald Trump, what is the point of trying to malign the character of everyone and anyone he choses to advise him, people with records of service to the country, people that are highly educated and have informed opinions to support their beliefs. So many people I know on the left have no support for their opinions. They just “feel” that it is the right thing or they have gotten it from their social media feed. Not kidding. They are educated, but they do not watch the news, “its toxic”, they don’t read newspapers or try to look at opposing viewpoints, and if I try to play the devils advocate to get them to open their mind I get jumped on. Nobody is listening. For other liberals out there, it is going to backfire. I think we need to speak out as a group.

  14. These partisan attorneys should be careful about using the ethics sword to attack their opponents – it is two edged and could cut the Pinkos just as badly.

  15. I agree with Prof. Turley’s analysis here. It’s a contemptible political ethics complaint.

    I do want to add, however, that I’m waiting for Prof. Turley’s analysis of the speech rights of student protesters at the next campus on which Milo Hebephiliopoulos attempts to lecture. 🙂 I’m sure NAMBLAs bugging him for a mixer.

  16. She does an amazingly good job of defending Mr Trump’s positive qualities. Unfortunately, she is supporting someone who is obviously, even to the medically-unschooled, a DMS-defined “malignant narcissist”, which is dangerous to the country and to the world. Between George W Bush and Trump, the rest of the world views the US much differently than they did in the past half century.

    1. “even to the medically-unschooled, a DMS-defined “malignant narcissist”, which is dangerous to the country and to the world.”

      And for the constitutionally unschooled, we have a system of government designed to check the powers these people have at their disposal. Unfortunately these same unschooled people couldn’t be bothered with enforcing these constitutional limits as long as it’s THEIR “malignant narcissist” in power. For the rest of us that do not align with either major political party and actually will NOT SUPPORT abuse of power, we’ll have to endure all you hypocrites that put party ideology far above constitutional principles.

  18. She lies like a rug and is smarmy and petulant when she does it. However, she’s no worse [although a lot more annoying] than the average political hack. This complaint is silly.

  20. What, there are shysters and pettifoggers on this nation’s law faculties? Say it ain’t so…

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