White House Challenged on Claim of Ethics Exemption

By Kenneth P. Doyle

Rep. Elijah Cummings (D-Md.) is asking the Trump White House to back up its claim that employees of the Executive Office of the President are not covered by many of the government ethics regulations that apply to other federal employees.

Cummings, the ranking Democrat on the House Oversight and Government Reform Committee, challenged the claim made by the White House in response to the controversy over top Trump aide Kellyanne Conway. The congressman’s March 9 letter to White House Counsel Donald McGahn asked McGahn to provide answers by March 24 to a series of questions, including which specific ethics regulations the Trump administration believes don’t apply.

The Executive Office of the President includes the White House staff and other entities, such as the Office of Management and Budget, that work directly for the president. The U.S. Office of Government Ethics, which oversees ethics compliance government-wide, has maintained the same rules apply to the Executive Office of the President as apply to federal Cabinet departments and agencies in the executive branch.

A recent letter to the OGE from White House Deputy Counsel Stefan Passantino said “many regulations promulgated by the Office of Government Ethics (OGE) do not apply to the employees of the Executive Office of the President” but provided no details to support this assertion.

Trump Says He’s Exempt

President Donald Trump has said he personally is exempt from rules designed to prevent government employees having conflicts of interest; however, the Trump administration hadn’t previously said others also were exempt from ethics rules.

Passantino’s Feb. 28 letter to OGE Director Walter Shaub centered on Conway, a top White House aid to Trump, who created a controversy last month by advocating in a television interview that viewers buy products produced by a company owned by the president’s daughter, Ivanka Trump.

Passantino acknowledged that Conway’s comments “implicated the prohibition [in federal ethics rules] on using one’s official position to endorse” a product. He said the matter was discussed with Conway and that she was unlikely to make other endorsements, but no other disciplinary action was taken.

‘Extraordinary Assertion.’

In a March 9 response letter, Shaub expressed concern about the White House’s failure to discipline Conway. The OGE director said he was even more concerned by Passantino’s “extraordinary assertion that ‘many’ of OGE’s regulations are inapplicable to employees of the Executive Office of the President.”

Shaub said: “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. It is critical to the public’s faith in the integrity of government that White House employees be held to the same standard of ethical accountability as other executive branch employees.”

Cummings cited Shaub’s response in his letter to McGahn, asking the White House counsel to provide more specifics about the administration’s views on ethics rules.

‘Legal Fiction.’

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

In addition to asking for the administration’s legal position on which ethics rules don’t apply, Cummings asked if the White House believes the OGE has legal authority to oversee ethics compliance across the executive branch. He also asked if the White House believes that only certain employees are exempt from ethics rules depending on the specific regulation and the roles or duties of specific employees.

Finally, Cummings asked McGahn if the White House has issued any written guidance to employees of the Executive Office of the President indicating that any OGE regulations don’t apply to them.

To contact the reporter on this story: Kenneth P. Doyle in Washington at kdoyle@bna.com

To contact the editor responsible for this story: Paul Hendrie at pHendrie@bna.com

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