By JASON SCHWARTZ
01/15/2018 07:24 AM EST
Every awards show has its critics, but President Donald Trump’s much ballyhooed “Fake News Awards” has drawn attention from a group beyond the usual peanut gallery: ethics experts who say the event could run afoul of White House rules and, depending on what exactly the president says during the proceedings, the First Amendment.
The White House has not yet said what form the awards presentation, scheduled by Trump Norman Eisen for President Barack Obama, and Walter Shaub Standards of Ethical Conduct , which ban employees from using their office for “the endorsement of any product, service or enterprise.”
Richard Painter, an ethics lawyer in the George W. Bush administration, agreed, telling POLITICO that there were plenty of valid reasons for executive branch employees to use their position to criticize private enterprises — if a bus company were violating federal safety regulations, for instance — but that helping put on an event to bash the media would not qualify.
“There has to be a legitimate official government reason for the position you’re taking with the respect to the particular company,” Painter said. “But here the only reason is they don’t like the coverage of the president.”
The president is not subject to the executive branch ethical standards, but all other White House staffers are. Ethics experts say that if the undertaking were carried out exclusively by political staff from the Trump campaign or the Republican National Committee — and not government employees in the White House — there would be no problem.
The issue, Eisen said, is “if the president enlists others in government to use government time or government resources to attack certain media outlets, while implicitly preferring others.”
The White House did not respond to questions asking whether any staff members would be involved. The Republican National Committee also did not respond to requests for comment.
Dan Scavino, the White House director of social media and an assistant to the president, has tweeted
A Washington University School of Law ethics expert, Kathleen Clark, said that she agreed with Eisen and Shaub: Targeting specific news outlets by giving them “fake news awards” would represent a sort of “anti-endorsement,” she said, and would break the rules.
Not all experts agreed that the awards would violate executive branch standards. Richard Briffault, a professor at Columbia Law School and an ethics expert, said that White House staff members would be breaking the rules only if they endorsed or criticized an enterprise that had nothing to do with their jobs.
“Put me down as skeptical,” he said. “It’s got to be unrelated to the office. Criticizing the president’s critics strikes me as related to the office.
It is not reasonable to fully separate politics from governing, he said, “so long as we assume staff can be used for some political purposes, so long as there is a White House communications office and a White House political office — we’ve crossed that line a long time ago.”
Briffault said he did not see a particular difference between criticizing the media on Twitter or in an interview or briefing — as press secretary Sarah Huckabee Sanders does on a nearly daily basis — and being involved in Trump’s awards.
Eisen argued that if the president creates a whole show around bashing specific media outlets, “there is more formality to it.”
“When you elevate it into a program,” he said, “it becomes harder and harder to say it’s just the president bloviating and it feels more and more like official government activity.”
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