Office of Government Ethics Director Walter Shaub proved himself to be a partisan hack a few months ago when he, in a stark break from tradition, started tweeting public criticism of then-President-elect Trump. Of course, partisan hackery is a dime a dozen inside the Beltway, but with his March 9 letter to Deputy White House Counsel Stefan Passantino, Shaub proved himself to also be ignorant of the very law on which he is charged to provide guidance.
The nuanced legal point that raised the ire of Shaub and Rep. Elijah Cummings, D-Md., was Passantino’s footnote in a letter regarding Kellyanne Conway’s praise of Ivanka Trump’s products, and whether such public praise was a violation of the legal prohibition against using one’s public office for private gain.
Passantino correctly explained that the referenced prohibition only applies to employees of executive agencies, and employees of the White House Office are not considered employees under the rule.
Passantino explained that White House employees in the Trump administration are counseled that they are nonetheless subject to executive branch standards of ethical conduct. In response, Shaub emoted concern about Passantino’s recitation of statutory analysis because in Shaub’s view, White House employees should be held to the same standard of ethical accountability as other executive branch authorities.
No lawyer would dispute the importance of strong ethical standards, but the history of determining whether the White House falls under the definition of an agency demonstrates that Shaub is cherry-picking when and how to apply regulations to persons acting within the White House in order to fit Shaub’s agenda.
Courts have found that the White House does not fit into the category of an executive agency in several instances.
In 1993, when deciding whether the first lady was an officer or employee in regard to the anti-nepotism law, the D.C. Circuit court expressed doubt that Congress intended to include the White House or the Executive Office of the President in the definition of an executive agency. The court relied on prior decisions, and though each dealt with different topic areas, such as whether the president was an agency under the Administrative Procedure Act and whether a President’s advisers were an agency under the Freedom of Information Act (FOIA), the court relied on the general premise that the president and those surrounding the position are not an agency.
Again, in 1995, the D.C. Circuit found that the rule limiting who can be appointed to a government agency does not apply to the White House Office. And in 2009, a U.S. Court of Appeals held that the White House Office of Administration is not subject to FOIA. Most recently, in January, the Office of Legal Counsel at the Department of Justice concluded that the prohibition against appointing family members does not apply to the White House Office.
These examples of diverse court opinions demonstrate the established legal principle that the White House Office is not an executive agency. Shaub completely disregards the history of this interpretation and instead engages in spouting truisms and ad hominem attacks. The legal concept that the White House Office is not an executive agency has been upheld by courts in a variety of contexts for the last 20+ years.
Reasonable people can disagree about what ethics rules should be voluntarily instituted by any administration, but Shaub loses moral authority to comment on government ethics when he misstates the law in furtherance of his opinions.
Charlie Spies (@cspiesdc) is a contributor to the Washington Examiner’s Beltway Confidential blog. He previously served as counsel to the Republican National Committee, Mitt Romney’s 2008 campaign and Jeb Bush’s Right to Rise USA super PAC. He currently leads Clark Hill’s national political law practice and is member in charge of the Washington, D.C. office.
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