U.S. Ethics Official To White House: No, These Rules Definitely Apply To You

By Danielle Kurtzleben

Published March 9, 2017 at 10:25 PM EST

Counselor to the President Kellyanne Conway (right) and former Sen. Jim DeMint, now president of the Heritage Foundation, walk away from the West Wing of the White House on Wednesday. The White House declined to discipline Conway for a lapse in a recent on-air interview, rebuffing the Office of Government Ethics.

The Office of Government Ethics has informed the Trump administration that the White House has an "incorrect" view of ethics laws.

In a Thursday letter, OGE director Walter Shaub contradicted what he called the White House's "extraordinary assertion," made in a recent letter, that "many regulations promulgated by the Office of Government Ethics ('OGE') do not apply to employees of the Executive Office of the President."

Shaub was having no part of that: "The assertion is incorrect, and the letter cites no legal basis for it."

The exchange over ethics rules first unfolded as a result of Kellyanne Conway's endorsement of Ivanka Trump's fashion line on Fox & Friends.

After that, Shaub informed the White House that there was "strong reason to believe that Ms. Conway has violated the Standards of Conduct" by promoting private gain for the president's family. In addition, he concluded that "disciplinary action is warranted."

White House deputy counsel Stefan Passantino responded in a letter that Conway had "acted inadvertently," and he did not say that the White House would take any disciplinary action.

In that letter, he also said this:

"We note initially that although many regulations promulgated by the Office of Government Ethics ("OGE") do not apply to employees of the Executive Office of the President, the Office of the White House Counsel has instructed all such employees to abide by 3 CFR 100.1," the segment of ethics law that pertains to Executive Office employees.

In Thursday's letter, Shaub said he "remain[s] concerned" about the White House's Conway response (or lack thereof). He was more forceful about the ethics claim, however:

"I am 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. Presidential administrations have not considered it appropriate to challenge the applicability of ethics rules to the entire executive branch."

There are some big uncertainties here: The White House has not specified what it means by "many," nor explained why it believes those rules do not apply to EOP employees. In addition, the White House has said that the rules are not binding for EOP employees, but that it has also advised them to abide by ethics rules.

When NPR first reported on Passantino's statement about ethics last week, George W. Bush ethics official Richard Painter said that OGE is entitled to know which rules the White House believes do and don't apply, as well as what, exactly, the White House is telling employees about the rules.

Ethics experts have told NPR that the White House's argument that "many" ethics rules don't apply to EOP employees may rest on the definition of the word "agency."

A number of ethics rules state that they apply to employees of government "agencies," so this definition is a crucial one in determining which rules apply to whom. Indeed, Passantino had said in a footnote that the White House Office, a subsection of the Executive Office of the President, is not an "agency."

Shaub disagreed with that as well.

Painter told NPR last week that hinging the argument on the word "agency" could be a losing fight. "I am not sure this argument is right so I never would have tried it and would not recommend that the White House do so," he said.

Likewise, Obama administration ethics official Norman Eisen said he believes the Trump White House's approach here is wrongheaded.

"This is nonsense. There are debates about whether for other purposes the [White House] is an agency," Norman Eisen wrote in an email to NPR. "Never before for ethics purposes."

The OGE did not ask any questions in its Thursday letter, but now, the top Democrat on the House Oversight Committee is.

In his own letter to White House counsel Donald McGahn, Maryland Rep. Elijah Cummings called Passantino's statement "troubling" and asked, among other things, which regulations the White House believes are "inapplicable to employees of the Executive Office of the President" and what its justification is for believing the rules do not apply to EOP employees.