I recently discussed the ethics complaint filed against Presidential Advisor Kellyanne Conway by 15 ethics law professors. For full disclosure, Conway is one of my former students at George Washington University Law School (she graduated in 1995). I criticized the complaint as highly political with little foundation. The only aspect of the complaint that was not frivolous was the allegation that Conway violated the federal rule against endorsing commercial products in light of her comments about Ivanka’s line of clothing and jewelry. As I stated, Conway did violate the rule though I viewed the violation as part of a tongue-in-cheek retort to the controversy. It still warranted a formal reprimand in my view but not an ethics charge or more serious action. The White House appears to have reached essentially the same conclusion though there is no indication of a formal reprimand as opposed to a public confirmation that Conway has been “counseled” and will not commit such a violation again.
Conway was not appearing as a lawyer but still allowed her rhetoric to overwhelm her judgment in saying on Fox and Friends “It’s a wonderful line. I own some of it. I fully — I’m going to just, I’m going to give a free commercial here: Go buy it today, everybody. You can find it online.” Given the ongoing controversy over conflicts in the Trump Administration, it was a particularly ill-considered response. Indeed, the handling of a product line of a Trump family member should have been a subject that a presidential adviser declined to address entirely.
The White House counsel’s office issued a letter to the Office of Government Ethics that it has determined that Conway acted “without nefarious motive” when she called on people to buy Ivanka products. Stefan C. Passantino, a White House deputy counsel for compliance and ethics states “[u]pon completion of our inquiry, we concluded that Ms. Conway acted inadvertently and is highly unlikely to do so again. It is noted that Ms. Conway made the statement in question in a light, off-hand manner while attempting to stand up for a person she believed had been unfairly treated and did so without nefarious motive or intent to benefit personally.”
Of course, that still leaves a violation under the clear rules set out 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.
There should be a reprimand for such an overt, on-air endorsement of a product line. It is important to maintain a bright-line rule under the ethics standards. However, as I have previously noted, this was more of a venial than mortal sin and any legal standard must have some ability to distinguish between the two. Accordingly, I obviously agree with the view of the White House ethics office on the lack of nefarious intent but it should demonstrate greater fealty to the rule with a formal reprimand. Moreover, Conway should issue her own letter apologizing for the slip and confirming that she is now fully versed on the ethics of executive service. Indeed, the most effective response should have been a letter from the President warning all staff that they are not to address or comment on the business interests or product of the Trump family.