Thursday, February 09, 2017

Government Ethics and Product Endorsement

Kellyanne Conway has recently gotten into some trouble from comments on a TV show:

Conway used an interview with Fox News on Thursday morning to criticize the decision by Nordstrom to discontinue Ivanka Trump’s clothing line from its stores. Conway said, “I do find it ironic that you have got some executives all over the internet bragging about what they have done to her and her line, and yet, they are using the most prominent woman in Donald Trump’s, you know, most prominent his daughter, using her, who has been a champion for women empowerment of women in the workplace, to get to him,” Conway said. “I think people could see through that. Go buy Ivanka’s stuff! I hate shopping, and I will go get some myself today.”

Because of this, an ethics complaint has been filed against her. The reporting on this is, incidentally, atrocious; I had to click through a number of news reports before I discovered who had filed the complaint (Citizens for Responsibility and Ethics in Washington), and no news report that I encountered at any point identified the regulation she was said to break (5 CFR 2635.702, and also 31 USC 1301, although I think CREW is obviously stretching and straining with the latter). There is no excuse for covering an ethical or legal violation and not telling people exactly what regulation or law was violated and, in this day and age, there is no excuse whatsoever for failure to link to the relevant regulation or law. But to continue.

There's no question that she violated the ethical standard here:

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.

Her comments were explicitly an endorsement of a product, and as the CREW complaint correctly notes she pretty clearly did so while serving in an official capacity, and the particular exceptions allowed later, in 702(c), do not apply (she wasn't fulfilling a statutory requirement nor was she giving an official recognition of compliance or achievement in the context of an agency program).

It's perhaps worth pointing out that ethical regulations do not exist to identify moral culpability, but to avoid even the neighborhood of it. Even if you think that what she did was morally acceptable, and that she isn't really guilty of anything, and even if you were right, it would not matter; moral guilt is not the issue. You don't create ethical regulations to catch the ethically blameworthy but to keep people away from doing things that are ethically blameworthy in the first place. The violation of the ethical standard is clear enough. (It's also perhaps worth noting that this kind of ethical violation is not particularly uncommon; it's just not usually this public.)

One question that should be asked by reporters, but that apparently is not being asked, because journalists are apparently not very good at their jobs, is whether Conway has received the ethics training that executive branch employees are supposed to receive. One of the several minor scandals that were orbiting the big Clinton scandal (and thus obscured by it) was that it turned out that there was no record of several senior members of the Clinton state department, including Clinton herself, having ever undergone the required ethics training. Getting official records on this sort of thing is not easy, due to privacy issues, but there are plenty of people -- Conway herself, White House representatives -- of whom one could at least ask the question.

The CREW complaint is addressed to the Office of Government Ethics and the White House Counsel. I confess I was puzzled for a while as to why the complaint was addressed to USOGE, which is an advisory and training agency, and still am not fully sure of why this was done (this should not be taken as any sort of negative comment; getting a full grasp of what investigates and enforces what in government ethics law is not particularly easy, and I certainly do not have a complete grasp of it). The proper investigative authority is the agency in question -- since Conway's official role is Counselor to the President, the White House itself is the investigative authority, which is why CREW addressed the letter to White House Counsel. To be sure, since it's not criminal violation, the Director of USOGE can recommend investigation or disciplinary action to the agency in question -- which would be the Office of the President -- and if the agency does not follow the recommendation, he can notify the authority capable of forcing the agency into compliance -- but that's always the President, which makes that rather moot here. The Director can also initiate proceedings, but this is pretty clearly for ongoing ethical violations (and the employee's return to compliance even in those cases normally stops the proceedings, so it's typically only obstinate ongoing ethical violations); Conway's violation was a one-time event. I suppose the point is just to request that the USOGE makes a recommendation to the White House; I'm not sure what else the Director of USOGE is supposed to do on receiving the letter. [ADDED LATER: And actually the House Oversight Committee, which also sent a letter to OGE (PDF), says exactly that: they request that the Director make a recommendation on disciplinary action to the White House.]

And what will be the upshot? Again, the point of government ethics regulations is not to rule on whether it was strictly ethical or not, nor to go around punishing people -- the point is to enforce compliance with standards to prevent certain kinds of unethical things from happening. So Conway is bound to get a talking-to (and according to some reports the White House claims she has), and in principle more serious action could be taken, if the White House decided it was appropriate. I suppose Congress could get involved, but it's pretty much impossible to determine beforehand what the upshot of that would be. And that's pretty much the whole story. It may seem a bit disappointing, but, again, the point of government ethics regulations is not to make a dramatic show or go around punishing individuals but to increase compliance with standards that protect the integrity of government.

Conway got into this hot water because she went beyond barely explaining the President's own now-infamous Nordstrom tweet, in response to (I believe) Nordstrom removing Ivanka's clothing line:



This does not violate government ethics regulations -- 5 CFR 2635.702 does not apply to the Office of the President. The President is an elected official receiving authority directly from the people whose powers are determined by the Constitution, and this is quite a significant difference. There is no regulation preventing a President from giving product endorsements, for instance -- although it is the sort of thing that Congress could count as a "high crime or misdemeanor" for the purpose of impeachment. But this wasn't even a product endorsement; it was a criticism of a business action. Even if there were regulations that applied, which there aren't, there is no possible way you could have a regulation delineating what the President can and can't criticize in public.

To say that no government ethics regulation was violated, however, does not eliminate the question of whether this was an action appropriate for a President to engage in. That is not government ethics, in the strict sense; it is political ethics. And the primary standard for what is acceptable in political ethics is less statute and regulation and more the standard to which the citizens hold their elected officials. I confess I find myself going back and forth on this particular one; I can see the argument for it being inappropriate, but the tweet itself is not an official government communication of any kind. (It was retweeted by the official POTUS account, and that is certainly a plausible ground for criticism. But (a) it could very well not be President Trump himself who decided to retweet it, since the account is handled by someone somewhere in the bureaucracy, and (b) it raises the questions of what a government Twitter account is officially supposed to be doing, and what its ethical purpose should be, and I don't actually know the answer to those questions.) The Presidency is not like a civil service job; the President is President all the time no matter what he does, so 'inappropriate to his office' is a far more complicated notion than it is when we are talking a political appointee or civil servant. However, it undeniably raises conflict of interest issues -- it would be very ethically wrong for a President to go around bullying businesses into carrying his daughter's line of clothes, and while it's difficult to argue that a tweet with a bare criticism does much in that direction, it's also a step in a bad direction. On the other hand again, though, creating a conflict of interest or the appearance of one is not in itself a form of ethical wrongdoing; it is a form of ethical risk, which is not the same thing. Going beyond risk to culpability is not always straightforward, and I think would require more than just this tweet.

In the end, I think I regard this as being a form of intemperance; intemperance is not usually a matter of violating a strict obligation, but of not reining oneself in when it would have been better to do so. Intemperance has characterized Presidential actions in various degrees for a very long time; I don't think it's at all a controversial thing to say that we are likely to see a lot of it over the next several years.

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