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Kellyanne Conway's Ethics Breach Is a Mild Outrage

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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White House counselor Kellyanne Conway broke federal ethics rules Thursday by endorsing Ivanka Trump’s clothing line -- that much is open and shut. If Conway worked for a regular government agency, she’d be temporarily suspended for a first offense, and fired for a second. But because her punishment depends on President Donald Trump, she has been “counseled,” not sanctioned.

There’s a lesson here about difference between law and morals. It may seem worrisome that ethics rules can be so easily ignored by an administration that chooses to do so. But the truth is that, ultimately, ethics rules are only as good as the administration that applies them. If we don’t like the administration’s morality, we have only one real option: vote it out of office.

The ethics rule at stake here, 5 CFR 2635.702, doesn’t come from the U.S. Code, which contains laws passed by Congress and signed by the president. It comes from the Code of Federal Regulations, a body of rules adopted by the executive branch itself, typically following some congressional authorization. Regulations often have the force of law, but the penalties for violating them vary, and are set either by Congress or at the discretion of the executive.

The rule says that “an employee shall not use his public office … for the endorsement of any product, service, or enterprise.” That’s what Conway did during an interview on “Fox and Friends” when she urged the public to go out and buy Ivanka Trump’s products that had been pulled from Nordstrom stores. Conway even described what she was doing as a “free commercial” -- the very definition of an endorsement.

But the penalties for violating the rule are vague. The code provision says that breaking the rules “may be cause for appropriate corrective or disciplinary action to be taken under applicable Governmentwide regulations or agency procedures.” And it places responsibility for punishment with the “employing agency” -- in this case, the White House. That means discipline is up to the president.

Some agencies -- but not the White House -- lay out the penalties in advance. The U.S. Fish and Wildlife Service, to take a truly random example, publishes a useful “Table of Penalties” that covers a variety of ethics violations. It says that for a first offense of using public office for private gain in violation of 2635.702, the employee should get something between a five-day suspension and removal from office. A second offense should be punished by removal.

In contrast, Conway the counselor has not been disciplined but “counseled” -- a term so benevolent that it strongly suggests she was simply told that she’s not supposed to endorse products.

Not much more is likely to happen. Technically, under the code, the director of the Office of Government Ethics could recommend disciplinary action after an investigation or order “corrective action.” But given that the White House has taken what might be characterized as corrective action already, a separate investigation likely won’t have any practical consequence.

How upsetting is this outcome? To begin with, it isn’t a violation of the rule of law. Conway broke the rules, but the rules don’t require punishment if the president chooses not to give it. In Conway’s defense, she presumably didn’t know that the endorsement was a rule violation.

If Conway had violated a federal law that comes with a punishment, the situation would be different. The Department of Justice would presumably initiate an investigation. Charges could be brought, provided the prosecutor thought they were warranted.

If the president instructed prosecutors not to bring criminal charges, that would begin to count as a rule of law violation. True, the executive branch has broad discretion over whom to prosecute. But by long-standing tradition, prosecutors, not the president, make those decisions. For a president to violate that tradition would threaten the de facto independence of Justice Department lawyers.

We’re not there yet. All the White House has done is communicate a mild contempt for the federal ethics rules. It hasn’t broken any institutional division lines.

The remedy the public has for that is simply scorn -- and eventually voting against Trump. That makes a certain amount of sense when it comes to ethics rules, which are different from criminal laws.

By definition, ethical rules are guidelines for proper behavior. Following them shows that you take morality in government seriously. Disrespecting the ethics rules communicates the opposite attitude.

We send people to jail for crimes. We condemn people for ethics violations. There’s a difference. Bad ethics can eventually lead to full-blown corruption -- but on its own, without a bribe attached, Conway’s ethics violation is just bad practice. The White House’s apparent decision not to take it too seriously is the same thing -- a poor decision that reflects insufficient respect for the rules.

Critics can and should blast the Trump administration for not taking this rules violation seriously. But they should also keep their powder dry for the future if criminal statutes, not just ethics rules, get violated. Those violations probably won’t take place on national television.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net