The views expressed are the author's own and not necessarily those of the Brennan Center for Justice
Donald Rumsfeld once famously said, “There are known knowns. There are things we know that we know. There are known unknowns. That is to say, there are things that we now know we don't know. But there are also unknown unknowns.”
If I’m being charitable, it looks like the Trump Administration may be running afoul of long standing ethical norms. There are lots of ethical and legal rules that apply to the West Wing, but the Trump team just may be such neophytes that they don’t know where the lines are.
From the now-deleted reference to her QVC jewelry line on the First Lady’s White House webpage, to Kellyanne Conway hawking Ivanka’s products live from the White House briefing room, to Trump’s use of his Palm Beach Mar-a-Lago estate which is also the site of a private club in which he holds an interest, to his status as landlord to the Bank of China, to the President’s overall refusal to divest from his businesses, the Trump White House is stumbling over its shoe laces ethically and it seems that part of the problem is that it doesn’t know what it doesn’t know.
Now there’s news from Politico that the Trump team decided to forgo ethics training for senior White House staff, Cabinet nominees and other political appointees. Apparently, the training was a casualty of when Vice President Mike Pence took over the transition from Chris Christie. Perhaps Pence did not believe the training was worth its $1 million price.
But if any administration needed some ethics training, it’s clearly one where the president, his chief of staff (Rence Priebus), and his chief strategist (Steven Bannon), have no government experience. And although White House Counsel Donald McGahn once was a commissioner on the Federal Election Commission, he has no White House experience. While their ethics specialist, Deputy White House Counsel Stefan Passantino, has provided ethics training to House members, he also has no government or White House experience. Since the White House skipped the training, here are a few pointers.
The Presidential Records Act now covers electronic messages. So it’s a no-no for White House staffers to send messages that self-delete. Also problematic is deleting Tweets sent by the President or other White House staffers.
The new administration is still subject to federal campaign finance laws. So they cannot raise more than the federal limits for Trump’s 2020 reelection campaign, which he has already started, even already declaring its slogan: “Keep America Great Again.” So no checks more than $2,700 per donor.
Also Team Trump can’t solicit money from the White House unless they want to get into Al Gore’s never-never land legalistic excuse for raising money from the White House. Gore claimed he didn’t violate the law because there was “no controlling legal authority,” which the Washington Post once called, the “newest weasel word to the lexicon of American political corruption.”
Oh, and a friendly reminder that foreign political donations are still illegal and so is asking for them. So no hitting up your favorite foreign dignitary. And the penalties are even worse if a member of a foreign government contributes.
As Kellyanne Conway learned the hard way, members of the administration and the President’s family can’t use the White House for personal gain. As this letter from White House ethics chief Passantino to the Office of Government Ethics shows, Conway got a stern talking to and not much else.
Yet Conway’s eager-beaver nature to defend the Trump family could have more profound consequences. Although it probably does not matter much to her, Conway has not worked as a lawyer in more than 20 years, a group of 15 legal ethics professors have filed a disciplinary complaint against her with the D.C. bar. The Ivanka transgression is only one aspect of the complaint; others include her citing of the non-existent “Bowling Green Massacre” to justify Trump’s executive order on immigration, and her use of “alternative facts” in discussing the size of the Inauguration crowd. As a government official, the professors write, Conway “has a higher obligation to avoid conduct involving dishonest[y], fraud, deceit, or misrepresentation.”
Also, as the attorney general learned last week, no lying to other members of the federal government. The operative section is 18 U.S.C. 1001. Solomon Wisenberg, a D.C. white-collar defense lawyer notes, “Title 18, United States Code, Section 1001 makes it a crime to: 1) knowingly and willfully; 2) make any materially false, fictitious or fraudulent statement or representation; 3) in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.”
I hope this little review has been helpful. Maybe next time, if the White House is going to cut costs, don’t scrimp on the ethics training. Like his campaign, the Trump White House seems to careen from one scandal to the next. Yet there are far more legal rules at 1600 Pennsylvania Ave. than Trump Tower. And sooner or later, one of these missteps is going to be more than embarrassing. It will cross a legal line. And the last time I checked, ignorance of the law is not a defense. Oh, and as Trump is learning to his great frustration, the White House is the world’s biggest fishbowl, so if you make legal mistakes, there’s an entire press corps to catch them.