Back in January 2018, in a post titled Harvard Law Grad Scaramucci Botches Law Discussing Trump-McGahn Discussion of Mueller , Ronn Blitzer (apparently a graduate of Cornell Law) wrote:
Enter Walter Shaub. Now, Shaub may not have gone to Harvard,
but he is an attorney and he was the Director of the
U.S. Office of Government Ethics, so he knows a thing
or two about legal matters in Washington. Shaub called
out The Mooch on Twitter, saying that he’s dead wrong
about Trump’s conversation with McGahn being privileged.
In June 2018, Walter Shaub invoked 5 CFR 2635.702(a) to say
Huckabee Sanders violated federal rules in tweeting about the “Red Hen”
incident from her official twitter account.
Rule 2635.702 is titled –Use of public office for private gain —
with part (a) stating in total:
(a) Inducement or coercion of benefits. An employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that is intended to coerce or induce another person, including a subordinate, to provide any benefit, financial or otherwise, to himself or to friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.
Example 1: Offering to pursue a relative’s consumer complaint over a household appliance, an employee of the Securities and Exchange Commission called the general counsel of the manufacturer and, in the course of discussing the problem, stated that he worked at the SEC and was responsible for reviewing the company’s filings. The employee violated the prohibition against use of public office for private gain by invoking his official authority in an attempt to influence action to benefit his relative.
Example 2: An employee of the Department of Commerce was asked by a friend to determine why his firm’s export license had not yet been granted by another office within the Department of Commerce. At a department-level staff meeting, the employee raised as a matter for official inquiry the delay in approval of the particular license and asked that the particular license be expedited. The official used her public office in an attempt to benefit her friend and, in acting as her friend’s agent for the purpose of pursuing the export license with the Department of Commerce, may also have violated 18 U.S.C. 205.
Mr. Shaub has yet to identify “what benefit” Huckabee Sanders obtained from Red Hen, or from anyone else,
by tweeting about the incident the next day. If Huckabee Sanders obtained no benefit, there is no violation of the regulation and Shaub is “dead wrong.”
One notes that part (b) of 2635.702 (NOT invoked by Shaub) states
(b) Appearance of governmental sanction. Except as otherwise provided in this part, an employee shall not use or permit the use of his Government position or title or any authority associated with his public office in a manner that could reasonably be construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another. When teaching, speaking, or writing in a personal capacity, he may refer to his official title or position only as permitted by § 2635.807(b). He may sign a letter of recommendation using his official title only in response to a request for an employment recommendation or character reference based upon personal knowledge of the ability or character of an individual with whom he has dealt in the course of Federal employment or whom he is recommending for Federal employment.
As to the text — construed to imply that his agency or the Government sanctions or endorses his personal activities or those of another — would any reasonable person construe that any governmental entity endorsed what Huckabee Sanders was talking about? Further, here, Huckabee Sanders was responding to a public disclosure of the event by a third party, which third party disclosure related to Huckabee Sanders’ status as a governmental employee.
***Entirely separately,Continue Reading ...