On the campaign trail, Donald Trump honed his craft of slamming media organizations that covered him critically, a practice he’s carried over to the White House.
His efforts will culminate soon in the so-called "fake news awards," an idea Trump first floated last November on Twitter.
"We should have a contest as to which of the Networks, plus CNN and not including Fox, is the most dishonest, corrupt and/or distorted in its political coverage of your favorite President (me). They are all bad. Winner to receive the FAKE NEWS TROPHY!" he tweeted Nov. 27, 2017.
We should have a contest as to which of the Networks, plus CNN and not including Fox, is the most dishonest, corrupt and/or distorted in its political coverage of your favorite President (me). They are all bad. Winner to receive the FAKE NEWS TROPHY!— Donald J. Trump (@realDonaldTrump) November 27, 2017
Trump’s idea got poor reviews from government watchdogs, who warned White House staff that the event would breach federal ethics rules designed to keep government honest and impartial.
"WARNING to White House staff: the president may be exempt from the rules at 5 CFR § 2635.701 et seq. on misuse of position BUT YOU ARE NOT. If you help @potus with the below, you risk violating §§ 702, 704 & 705 forbidding use of gov time & $$$ to harm some media & aid others," Norm Eisen, President Barack Obama's former ethics czar, tweeted on Jan. 7.
WARNING to White House staff: the president may be exempt from the rules at 5 CFR § 2635.701 et seq. on misuse of position BUT YOU ARE NOT. If you help @potus with the below, you risk violating §§ 702, 704 & 705 forbidding use of gov time & $$$ to harm some media & aid others. https://t.co/gHxzJcCEAW— Norm Eisen (@NormEisen) January 7, 2018
Experts who practiced government ethics at the highest levels told us the fake news awards could land White House staffers in hot water, for violating government rules and encroaching on the First Amendment.
Eisen, now chair of the Citizens for Responsibility and Ethics, referred to a set of federal regulations that lay out the ethical conduct of executive branch employees. (As Eisen noted, Trump, as president, is exempt.)
These rules are overseen by the U.S. Office of Government Ethics, or OGE, an executive branch agency whose 4,500 ethics officials serve as watchdogs over the executive branch to prevent (or resolve) conflicts of interest, with the aim of safeguarding governmental integrity.
Eisen specifically pointed to a section of the rules that deal with executive branch employees misusing their government jobs. The section states that an executive branch employee "shall not use his public office for the endorsement of any product or enterprise."
Because of that rule, the ethics office also has long considered it improper for an executive branch employee to condemn a company, said Walter Shaub, who led the OGE until his resignation in July 2017.
"You can't use your government position to endorse a company, and you can't trash a company to the advantage of a different company," said Shaub, who is now the senior director of ethics at the Campaign Legal Center.
It's unclear if Trump’s event is being held by the White House or the Trump/Pence campaign, and neither organization replied to our questions. (Eisen's tweet — and this analysis — deals with official government events. A separate set of laws, including the Hatch Act, would apply if White House staffers participated in a campaign event, sources said.)
Absolutely, according to Shaub, who retweeted Eisen’s warning to White House press secretary Sarah Huckabee Sanders.
"Hey @PressSec & @RajShah45, Norm is right. If you or ANY WH staffers work on this or post it on the WH website, it will be a violation of the Standards of Conduct. Beware of laws on using federal appropriations too, if there are any visuals, certificates, handouts, or trophies," Shaub tweeted Jan. 7.
Hey @PressSec & @RajShah45, Norm is right. If you or ANY WH staffers work on this or post it on the WH website, it will be a violation of the Standards of Conduct. Beware of laws on using federal appropriations too, if there are any visuals, certificates, handouts, or trophies. https://t.co/3tlyrkNc9H— Walter Shaub (@waltshaub) January 7, 2018
Shaub told PolitiFact that a staffers' participation in an official Trump administration event designed to publicly humiliate certain media outlets would clearly constitute a misuse of their government position.
"It’s not even a close call," he said. "Sending out tweets talking about how great Fox News is, which is a business, and now he’s going to give awards trashing CNN and others, which are businesses, is preferential treatment."
Richard Painter, the chief White House ethics lawyer in the George W. Bush administration, said that while some ethics rules can be ambiguous, a Trump staffer's participation would be out of bounds.
"The endorsement of some news outlets and the condemnation of others crosses the line under the OGE regulations," he said. "It’s hard to show where that line precisely is, but what I can tell you is it has been crossed in this instance."
Absent some kind of serious government study showing systemic failures by certain media organizations, there’s no compelling government interest that justifies the staging of fake news awards, he said.
Painter said Trump’s tweets, as well as other administration actions affecting the media industry, raise First Amendment concerns. This makes it more likely an ethics official would find a staffer broke the rules by participating in Trump's fake news awards, he said.
During his time in office, scores of Trump’s tweets have followed a familiar pattern: praise for Fox News and scorn for its competitors.
On Twitter, Trump mentioned Fox News, its programs or its hosts in more than 70 tweets that describe the right-wing media outlet in positive, if not glowing, terms. Trump uses Twitter to promote Fox News reporting, highlight favorable coverage of him and his administration and lavish praise on the network while condemning their competitors.
"The fake news media is going crazy with their conspiracy theories and blind hatred. @MSNBC & @CNN are unwatchable. @foxandfriends is great!" Trump tweeted Feb. 15, 2017.
Over the same period, Trump has mentioned Fox News' rivals more than 50 times. Aside from two tweets promoting his own interview on ABC News, these tweets have ranged from negative to scathing.
"The FAKE NEWS media (failing @nytimes, @NBCNews, @ABC, @CBS, @CNN) is not my enemy, it is the enemy of the American People!" Trump tweeted Feb. 17, 2017.
In addition to Trump's tweets, Painter said there’s other evidence the administration has used its power to play favorites in the media industry, raising First Amendment concerns that bolster the case that the fake news awards are out of bounds.
He pointed to the Justice Department's antitrust suit against Time Warner, which has raised questions about whether this was done as retribution against CNN; Trump’s threat against NBC's license over reporting he disputed; and Trump’s repeated — and false — attacks on Amazon and its chairman Jeff Bezos, who owns the Washington Post.
Painter also noted Trump congratulated Rupert Murdoch, who co-chairs 21st Century Fox, over a deal to sell significant Fox assets to Disney, after Trump reportedly sought reassurance that Fox News wouldn’t change hands.
"There's some concrete evidence that they're playing favorites with the media organizations in official action, and penalizing those who do not give them the news coverage they like," Painter said. "Couple that with the president's tweets, including several that suggest he wishes he were in a country without the First Amendment, and this is viewed as a part of a pattern of conduct."
Both Painter and Shaub noted the ethics rules also require loyalty to the rule of law and the constitution.
"In effect the president is trying to establish official news media, establish that Fox is good and CNN is bad," Painter said. "That does loop back into what's a reasonable application of the OGE rule if what you're doing is treading really close to a First Amendment problem."
Eisen and Painter are chair and vice chair, respectively, of the Citizens for Responsibility and Ethics in Washington, which unsuccessfully sued Trump for violating a constitutional bar on presidents and federal officials accepting gifts and payments from foreign governments.
Eisen said the White House staff risks violating federal ethics rules if they participate in Donald Trump’s "fake news awards."
Two experts, who practiced government ethics at the highest levels, said participation by White House staffers would violate federal ethics rules. Trump, for the record, is exempt. They added that the president and his administration’s pattern of playing favorites among media outlets raises First Amendment issues that would subject this event to heightened scrutiny by ethics officials.
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