In the catalog of horror and national humiliation that constitutes the first 20 days of Donald Trump’s presidency, Kellyanne Conway’s squalid shilling for Ivanka Trump merchandise is a fairly small thing. It pales beside the stories of families torn apart by Trump’s executive order on immigration; the botched raid in Yemen; Trump’s refusal to extricate himself from his labyrinthine conflicts of interests; his ostensibly “lighthearted” threat to invade Mexico; his idiotic feud with the prime minister of Australia; his elevation of conspiracy-obsessed white-nationalist cranks to the highest levels of government power; and the numbing fusillade of lies about matters both grave and petty that issue from his administration every day. Nevertheless, it is rare—even, so far, under Trump—for a high official to unambiguously violate the law on national television. Conway’s transgression may not be terribly serious, but the urgency of holding her to account is.
Let’s recap. This is day two of the Trump administration’s dispute with Nordstrom, the department-store chain that has stopped carrying Ivanka Trump’s clothing line because of poor sales. On Wednesday, Trump tweeted an attack on Nordstrom from his personal Twitter account, then retweeted it from his @POTUS account. His hapless press secretary, Sean Spicer, defended Trump’s conduct, saying that Nordstrom’s refusal to sell the president’s daughter’s fashion line was “a direct attack on his policies and her name.” Thursday morning, Kellyanne Conway appeared on Fox and Friends and urged viewers: “Go buy Ivanka’s stuff … I’m going to give a free commercial here. Go buy it today, everybody; you can find it online.”
All of this was a shameful farce, but only Conway’s comments appear to be illegal. Federal ethics law for administrative employees says this:
An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.
There is simply no question that Conway was endorsing Ivanka Trump’s product.
Usually, demonstrating official misconduct is more complicated than this. There are paper trails to examine and explain, or narrative ambiguities that allow sufficiently motivated partisans to at least argue that nothing untoward happened. Conway’s statement was so clearly and frankly egregious that it even earned a rebuke from Peter Schweizer, author of Clinton Cash and a close associate of Trump aide Steve Bannon. “To encourage Americans to buy goods from companies owned by the first family is totally out of bounds and needs to stop,” he told the Washington Post. Larry Noble, general counsel of the Campaign Legal Center, tells me: “This reminds me a little bit of Donald Trump’s statement during the campaign that he could shoot somebody, and nobody could do anything about it. It’s pretty blatant.”
It’s so blatant, in fact, that House Oversight Committee Chairman Jason Chaffetz, a Republican, told the Associated Press on Thursday afternoon that Conway’s behavior was “wrong, wrong, wrong, clearly over the line, unacceptable.” He said that he and Democratic Congressman Elijah Cummings were sending a letter to the White House and the Office of Government Ethics asking for an investigation.
Ultimately, though, unless Congress wants to open an investigation itself, disciplinary action against Conway would have to come from the White House or the Department of Justice, and it’s not clear that either would put the law above loyalty to the Trump family. The Office of Government Ethics can write a letter recommending some sort of sanction, but according to Noble, it doesn’t see itself as an enforcement agency. “The system is based on the assumption that people are going to want to follow the law or enforce it,” he says. In 20 days, this administration has exploded that assumption. “They are stress-testing our democracy,” says Noble. “What happens if the administration just refuses to follow the laws and Congress doesn’t want to do anything about it?” We might be about to find out.
Update, Feb. 9, 6:40 p.m.: Chaffetz and Cummings have sent a letter to the director of the Office of Government Ethics, Walter M. Shaub Jr., requesting a review of Conway’s “unacceptable” statements.