Ethics Office Challenges Claim That Many Rules Don't Apply to White House Staff

The Office of Government Ethics on Thursday expressed displeasure with a White House decision not to discipline presidential counselor Kellyanne Conway as well as its deputy counsel’s assertion that many ethics requirements for the executive branch do not apply to White House staff.

OGE Director Walter Shaub wrote to deputy White House counsel Stefan Passantino on both issues during the follow-up to the controversy over Conway’s Feb. 9 plug for Ivanka Trump’s fashion products delivered on camera from the White House press room. The White House had determined that while Conway’s actions were wrong, her violation was “inadvertent” and no discipline was being imposed other than her being counseled.

“I remain concerned about Ms. Conway’s misuse of the position,” Shaub wrote, citing the “prohibition on using one’s official position to endorse any product or service.” The absence of any discipline “risks undermining the ethics program,” Shaub said.

But the ethics chief said he was “more concerned about the extraordinary assertion that “many of OGE’s regulations are inapplicable to employees of the Executive Office of the President. The assertion is incorrect, and the letter cites no legal basis for it,” Shaub added, saying past administrations had never taken that view.

He made similar points in a letter to the chairman and ranking member of the House Oversight and Government Reform Committee, noting OGE’s lack of authority to impose discipline on agency employees, other than notifying the president.

Passantino had written to Shaub on Feb. 28 saying, “This administration is committed to complying with the ethical obligations set forth” in the White House Standards of Conduct, and has counseled all employees to comply with relevant sections of the Code of Federal Regulations and has conducted extensive training.

After he met with Conway, the deputy counsel wrote, she “acknowledged her understanding of the standards and has reiterated her commitment to abiding by them in the future.”

Also on Thursday, Rep. Elijah Cummings, D-Md., the oversight panel’s ranking member, wrote to White House Chief Counsel Donald McGahn II demanding an explanation for Passantino’s assertion that “many” ethics rules don’t apply at the White House.

Cummings deduced that the White House had accepted the legal argument offered by the conservative group Cause of Action, first in a Feb. 9 blog post, and then in a letter to OGE. 

Though Cause of Action did not condone Conway’s sales pitch, it cited case law and a circuit court ruling that “because the White House clearly does not fall into the other two covered categories, Government Corporations and Executive Departments, it appears that the regulation cited by many… commenters, including the former general counsel of OGE, does not cover Kellyanne Conway as counselor to the president.”

Cummings wrote that “the president’s staff need to follow ethics rules—not flout them. When they violate these rules, the president must impose discipline, not invent a legal fiction that these rules do not apply.”