New FOIA Documents Show How OGE Responded – and Couldn’t Respond – to White House Ethics Violations
New documents obtained by the Campaign Legal Center under the Freedom of Information Act (FOIA) show how lawyers for the White House and the Office of Government Ethics (OGE) scrambled to respond to President Trump and a top aide who used their official positions to promote First Daughter Ivanka Trump’s fashion line.
The newly released documents raise serious concerns about the White House’s approach to longstanding ethics rules, which are complicated by the extensive financial interests continuing to be held by the President and his family.
February 8: OGE Immediately Responds to the President’s Tweet
On Feb. 8, President Trump tweeted:
In documents uncovered by CLC through the FOIA request, lawyers at the Office of Government Ethics (OGE) quickly scrambled to respond to the president’s tweet, which sounded ethics alarm bells.
That afternoon, the top lawyer at the Office of Government Ethics, David Apol, asked Trump's White House ethics lawyer to discuss "an issue that has come up." Trump's lawyer, Stefan Passantino, called the ethics office five minutes later.
The documents made public include a summary of their discussion about “POTUS’s tweet concerning the decision of Nordstrom to stop carrying a family member's line of products.”
The president’s tweet would be a clear violation of OGE regulations at 5 CFR2635.702, which prevents any executive branch employee from using his official position to endorse any product for the private gain of a friend or family member, if done by any other federal employee. However, the president is not formally subject to OGE rules. Nevertheless, according to OGE’s summary of the conversation with the White House:
“During the call, we reiterated OGE's recommendation that POTUS should conduct himself as though he is covered by the Standards of Conduct, including 2635.702 . . . Stefan responded that he understood our concerns.”
February 9: OGE Immediately Responds to Kellyanne Conway’s Public Endorsement of Ivanka’s Brand
The next morning, the OGE and the White House were on the phone again.
White House Senior Advisor Kellyanne Conway declared in an appearance on “Fox and Friends” from the White House briefing room, “Go buy Ivanka’s stuff. . . I’m going to give a free commercial here: Go buy it today, everybody; you can find it online.”
Unlike the president, Conway is clearly subject to OGE ethics rules and, according to new OGE records, after Conway’s statement White House Counsel Passantino called OGE and assured the agency the White House would “be taking appropriate action to address her conduct.”
OGE’s Apol summarized the conversation in an email to the White House’s Passantino, according to documents obtained by CLC. Apol wrote:
After Kellyanne Conway encouraged the public to buy the products of the President’s daughter this morning, you initiated a call to me. You expressed that you wanted to reassure OGE that, as the Counsel to the President for Ethics and Compliance, you will be taking appropriate action to address her conduct and that of the individuals we discussed yesterday. I thanked you initiating this call and for your reassurance. I also recommended that you counsel all White House staff regarding the misuse of position rule.
OGE’s Apol also made reference to the extremely high volume of public requests that were flooding into the office about this ethical lapse and asked that the White House inform OGE as soon as possible about what action was taken.
Later on Feb. 9, the Chair and Ranking Member of the House Committee on Oversight and Government Reform, Rep. Jason Chaffetz, sent a letter to OGE asking the agency to review Conway’s statements.
February 10: White House “Counsels” Conway On Feb. 10, CLC called on the Office of Government Ethics (OGE) to investigate the matter and recommend disciplinary action against Conway, such as reprimand, suspension, demotion or dismissal.
However, on Feb. 10, White House Press Secretary Sean Spicer announced that Conway had been ‘counseled’ over comments regarding her promotion of Ivanka’s fashion line.
February 13: OGE Claims Its Authority is Limited, Urges White House to Take Action
On Feb. 13, OGE Director Shaub responded to the House Committee on Oversight, noting that it was taking the matter seriously, but that its authority is limited:
Shaub noted that OGE’s first step is to make an informal recommendation to the White House that it take disciplinary action against Conway, and if that fails, OGE can undertake a process to make a formal, but ultimately non-binding, recommendation.
In a letter sent to the White House’s Passantino that same day, OGE advised that “there is strong reason to believe that Ms. Conway has violated the Standards of Conduct and that disciplinary action is warranted:”
Shaub noted that Conway’s actions were a “clear violation” of OGE rules, and recommended that “the White House investigate Ms. Conway’s actions and consider taking disciplinary action against her.”
February 28: White House Claims No More Action Needed Against Conway’s Ethical Violation
On Feb. 28, the White House responded to the recommendation, declaring that "Upon completion of our inquiry, we concluded that Ms. Conway acted inadvertently and is highly unlikely to do so again."
"It is noted that Ms. Conway made the statement in question in a light, off-hand manner while attempting to stand up for a person she believed had been unfairly treated and did so without nefarious motive or intent to benefit personally."
“Nefarious intent” is not required for an ethics violation—if it were, than it would be almost impossible to prove a violation.
March 9: OGE Warns No White House Action Undermines Ethics Program
OGE fired back on March 9 that “not taking disciplinary action against a senior official under such circumstances risks undermining the ethics program.” Importantly, OGE’s letter took particular issue with a much broader assertion in Passantino’s letter suggesting that White House employees are beyond the reach of OGE’s ethics rules:
White House employees have always been subject to OGE’s executive branch-wide ethics rules since they were first enacted in 1992, an understanding that was formalized when the White House enacted 3 cfr 100.1 almost two decades ago.
Today: CLC Will Continue to Demand Transparency and Ethics Compliance
The White House’s effort to dodge ethics rules reflect a concerning view about the rules designed to ensure that public officials are working for the public rather than for private interests. CLC will continue to work to hold government officials accountable and continue to make information we obtain public.