Kellyanne Conway has jumped into President Trump’s ongoing, one-sided feud with Nordstrom department stores, which have stopped carrying his daughter Ivanka Trump’s fashion line.
“Go buy Ivanka’s stuff, is what I would tell you,” Conway said on Fox & Friends, while standing at the podium in the White House briefing room on Thursday morning.
The Nordstrom saga has now crossed the line from a somewhat vague conflict of interest (Trump seemed like he was defending his daughter, but his company, the Trump Organization, also owns the Ivanka Trump brand) to a seemingly more clear-cut violation of federal ethics rules.
Federal employees in the executive branch, including Conway, aren’t allowed to “endorse any product, service or enterprise.”
The rules are strict, and even cover things like writing book blurbs for authors the federal employees admire. (Not allowed.) When The Revenant, a novel written by Michael Punke, Obama’s ambassador to the World Trade Organization, was made into an Oscar-nominated movie, Punke couldn’t even talk about the film because to do so might violate federal conflict of interest rules.
Even US Rep. Jason Chaffetz, the chairman of the House Committee on Oversight, who has been reluctant to investigate Trump, called Conway’s remark “clearly over the line,” according to the Associated Press. Communications director Sean Spicer addressed the issue at a press briefing: “She's been counseled, and that's all we're going to say.”
The Office of Government Ethics just got its first big test under Trump
The good news for Conway is that she appears to have broken the rules but probably not committed a federal crime. Criminal ethics violations are limited to financial conflicts of interest, accepting bribes, supplementing government salaries, getting involved in lawsuits against the federal government, and being paid in connection to matters affecting the government, as well as restrictions on what government employees can do after they leave office.
Still, complaints poured into the Office of Government Ethics, the independent executive branch agency charged with implementing federal ethics rules:
1/OGE’s website, phone system and email system are receiving an extraordinary volume of contacts from citizens about recent events.— U.S. OGE (@OfficeGovEthics) February 9, 2017
2/OGE works to prevent ethics violations. OGE does not have investigative or enforcement authority.— U.S. OGE (@OfficeGovEthics) February 9, 2017
3/Congress, GAO, the FBI, Inspectors General, and the Office of Special Counsel have the authority to conduct investigations.— U.S. OGE (@OfficeGovEthics) February 9, 2017
As these tweets point out, the office’s hands are largely tied. The matter has been referred to the White House, according to the Office on Government Ethics.
If the White House refuses to discipline Conway, the Code of Federal Regulations gives a few options for what can happen next:
- If the ethics office thinks Conway did commit a crime, its director, Walter Shaub, can refer the matter to the Department of Justice for prosecution.
- Alternatively, Shaub can recommend an investigation by a federal agency (in this case, the White House). If the investigation isn’t completed in a timely fashion, he can inform the president.
- After the investigation, or when Shaub decides a “reasonable time” has passed without a conclusion, the matter could be dismissed or go to the Office of Government Ethics’ general counsel or to a hearing before an administrative law judge.
- Either way, Shaub then would review the counsel’s or judge’s recommendation and could suggest (but not require) that Conway be disciplined, a decision that will be made public. (If the ethics violation is ongoing, Shaub can also order a federal employee to stop doing it.)
The problem with this process, for ethics watchdogs, is that the buck stops with the president. Shaub’s only trump card, if his recommendations (which aren’t binding) aren’t followed, is that he can tell the president a federal agency is refusing to discipline its employees.
But Conway is a top adviser, not a low-level federal employee whose misdeeds are generally beneath the president’s notice. And Trump himself tweeted angrily about Nordstrom’s decision. In a January 12 tweet, he endorsed L.L. Bean:
Thank you to Linda Bean of L.L.Bean for your great support and courage. People will support you even more now. Buy L.L.Bean. @LBPerfectMaine— Donald J. Trump (@realDonaldTrump) January 12, 2017
He doesn’t seem inclined to take Conway’s ethics violation particularly seriously.
Shaub showed a willingness to take on the president before he was inaugurated, blasting Trump’s plan for leaving his adult sons charge of his businesses rather than selling them and putting the proceeds into a blind trust. It was an unusually public statement that stopped just short of calling Trump unpatriotic. But Shaub’s office, known for its pointed tweets before Trump took office, has been relatively quiet in the first few weeks of the administration. That might be about to change.