Ivanka Trump’s posts violated an executive branch ethics regulation prohibiting employees from misusing their official positions to endorse commercial products. As a pictorial representation of the Trump administration’s war on government ethics, both photos are perfectly clear. They scream “the rules don’t apply to us,” a central message of the Trump administration from the start.
Even before his inauguration, President-elect Trump seemed to delight in telling reporters that the ethics rules weren’t his thing. As a matter of law, he was mostly right. As a matter of norms, he could not have been more wrong. Since the early 1970s the Justice Department, based on an opinion by then-Assistant Attorney General and future Supreme Court justice Antonin Scalia, emphasized the importance of presidents acting as though the rules applied to them. The Office of Government Ethics (OGE) reiterated this advice in the 1980s and again after Trump was elected. OGE had a vested interest in doing so. Lacking any real enforcement power of its own, OGE has always depended on White House support for the ethics program. Past presidents delivered that support in abundance.
They also led by example, establishing a post-Watergate norm of presidents divesting their conflicting financial interests or placing them in blind trusts. But Trump’s very first act as president was to breach that norm. With that initial act, he made clear that even if he wanted to support the government ethics program, he would lack the moral authority to do so. And he has made clear that he doesn’t want to support that program; he and his staff are openly hostile to it.
Three weeks after Trump’s inauguration, Kellyanne Conway showed she had received the president’s anti-ethics message. Participating in a television interview from the White House, Conway told America to “go buy Ivanka’s stuff.” As the OGE’s director, I asked the White House to address this violation of the misuse of position regulation. The White House shrugged off the violation, responding that Conway had uttered her endorsement “in a light, offhand manner” and was “highly unlikely to do so again.”
But Conway did violate ethics rules again, literally dozens of times. That’s according to Henry Kerner, the Trump appointee leading the U.S. Office of Special Counsel (OSC). That agency (which is unrelated to former special counsel Robert S. Mueller III) enforces the Hatch Act, an ethics law that prohibits misuse of official position to influence partisan political elections. Conway violated that law so many times that Kerner recommended her termination. Trump rejected the recommendation.
As long as the White House protects ethics violators, presidential appointees will continue violating ethics rules. The OSC has determined that at least 13 Trump appointees have violated the Hatch Act. Ethics investigations and resignations under the cloud of ethics violations are now the hallmark of the Trump administration. Ivanka Trump’s endorsement of Goya beans is only the latest in the administration’s long string of ethics problems.
There can be no doubt that her Twitter post violated the misuse of position regulation. The OGE has adopted a “totality of the circumstances” approach in applying the misuse of position regulation to personal social media accounts. While the president’s daughter asserts in the biographical section of her account that it is a personal one, she includes her official title in that section. Her Twitter account also frequently touts Trump administration activities. The first item she posted after the Goya endorsement, for example, is a retweet of a Republican politician regarding the “White House American Workforce Policy Advisory Board,” which she co-chairs in her official capacity as a White House official. The dozen tweets and retweets she posted immediately before the Goya endorsement similarly focused on a White House employment initiative in which she participates in her official capacity. An official’s prominence in the administration is also a consideration, and there is no presidential appointee more closely associated with President Trump than his daughter.
Other factors further establish the ethics violation. A few days before Ivanka Trump’s tweet, Goya’s CEO praised President Trump, and her tweet was an obvious response to the backlash the company has faced for the CEO’s remarks. There’s a particularly unseemly aspect to both Ivanka and Donald Trump’s posts: they suggest that the government’s endorsement is for sale. Endorse the president while he’s running for reelection, and he and his staff will reciprocate by endorsing your product. This too is in keeping with the administration’s track record. Trump, after all, is the president who asked Ukraine to investigate his political rival and seemingly conditioned the delivery of hundreds of millions of dollars in desperately needed aid on the performance of that favor.
The tone taken by those at the top is everything in government ethics, and the tone from the top of the Trump administration consistently undermines the principles of government ethics. The government’s 2.1 million federal employees are told in ethics training that they should play by the rules, while those at the top of government routinely flout rules. They see the Trump administration attack anyone who decries ethics violations. With the recent resignation of Lt. Col. Alexander Vindman, they see retaliation against witnesses who expose wrongdoing. They see the president blasting whistleblowers and replacing inspectors general, the government’s internal watchdogs, with lap dogs.
Lawlessness is not just tolerated in the Trump administration; it’s virtually required. That’s a threat to the republic because the breakdown of legal safeguards is a necessary predicate to the rise of authoritarianism. So don’t think for a second that this was just about a can of beans. Ivanka Trump’s social media posts were a declaration that she and the other members of this administration stand above the rule of law.