The director of the Office of Government Ethics says there is “strong reason to believe” presidential counselor Kellyanne Conway broke an ethics law, and is urging the White House to consider disciplinary action against her.

In a Feb. 13 letter from Walter Shaub to Deputy Counsel to the President and Designated Agency Ethics Official Stefan Passantino, the OGE director said that Conway’s comments about Ivanka Trump’s clothing line, made while she was interviewed in the White House’s James S. Brady Briefing room and in front of the White House seal and an American flag “establish a clear violation of the prohibition against misuse of position.”

“I note that OGE’s regulation on misuse of position offers as an example the hypothetical case of a Presidential appointee appearing in a television commercial to promote a product,” Shaub said. “Ms. Conway’s actions track that example almost exactly.”

“Under the present circumstances, there is strong reason to believe that Ms. Conway has violated the Standards of Conduct and that disciplinary action is warranted,” Shaub said in his letter, adding he wanted a response by Feb. 28.

Shaub also referred to a conversation between Passantino and OGE General Counsel David Apol, in which the latter required notification of any disciplinary action or corrective action that would be taken “in connection with Ms. Conway’s public statements regarding the business interests of the President’s daughter.”

“OGE has not yet received notification of any disciplinary or other corrective action against Ms. Conway,” Shaub said.

White House Press Secretary Sean Spicer said during a Feb. 9 press conference that Conway had been “counseled, and that’s all we’re going to go with.”

That afternoon, OGE reported a surge in phone calls and emails, to the point where many users trying to access the site were put in a queue or their connection to the site timed out.

1/OGE’s website, phone system and email system are receiving an extraordinary volume of contacts from citizens about recent events.

— U.S. OGE (@OfficeGovEthics) February 9, 2017

Limited authority

In another letter sent Feb. 13 to House Committee on Oversight and Government Reform leaders, Shaub confirmed OGE will be looking into whether it would recommend any disciplinary action.

But it will likely take until late April or May for OGE to complete its own investigation into Conway’s comments — thanks in part to the limited authority OGE was given by Congress.

“As you know, Congress has not provided OGE with any actual investigative authority or resources for hiring investigators,” Shaub said in his letter to Oversight committee Chairman Rep. Jason Chaffetz (R-Utah) and Ranking Member Elijah  Cummings (D-Md.). “Unlike the Committee, OGE cannot issue subpoenas, question witnesses, compel the production of documents, or take action against individuals who refuse to cooperate. Unlike employing federal agencies, OGE cannot take disciplinary action against an executive branch employee other than an OGE employee. Thus, OGE is limited with respect to the actions it can take.”

OGE is authorized only to make informal recommendations to the agency that employs the worker under investigation.

“Only in the event that this informal process fails to resolve the matter does the law authorize OGE to recommend disciplinary action,” Shaub said. “Even in that case, however, Congress limited OGE’s authority by requiring that, before OGE may make a recommendation, OGE must provide the employee with written notice of the alleged violation and an opportunity to respond either orally or in writing.”

The employee has 30 days to respond, and then OGE’s General Counsel must provide written findings and recommendations to the OGE director.

Even then, the director can only issue “nonbinding recommendations” that the employee’s agency can take against them.

“OGE is also authorized to notify the President if the agency fails to take appropriate disciplinary action; however, such notice would be ineffective in this case because any decision not to take disciplinary action will have been made by the President,” Shaub said.

In a statement, Rep. Gerry Connolly (D-Va.), a member of the oversight committee, called Conway’s comments an “infomercial for President Trump’s daughter,” and an “egregious violation of the federal Standards of Conduct.”

“This dereliction of basic ethical conduct from a senior Administration official is behavior that has come to characterize the Trump White House,” Connolly said. “I applaud the U.S. Office of Government Ethics’ action today and urge the White House Counsel to investigate immediately this unacceptable behavior and exercise appropriate discipline.”

More power

The Project on Government Oversight [POGO] also sent a letter to Chaffetz and Cummings,  thanking the lawmakers for investigating Conway’s comments, but pointing out OGE’s inability to issue anything more than nonbinding recommendations.

“We believe that for OGE to be effective, Congress should expand the law to ensure OGE has clear, independent authority to investigate complaints and to issue binding corrective and disciplinary actions when there is an ethics violation,” said POGO Executive Director Danielle Brian. “Alternatively, if the agency does not act on the disciplinary recommendation in a timely fashion, then OGE’s authority could closely mirror that of the Office of Special Counsel [OSC], which can investigate complaints of alleged prohibited personnel practices [PPP] to the extent necessary to determine whether there are reasonable grounds to believe the PPP has occurred.”

The agency also tweeted at Trump, which Chaffetz said “blurred the lines” between PR and official ethics guidance.

Republicans eventually backtracked on their effort.

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