The White House has not yet said what form the awards presentation, scheduled by Donald Trump for Wednesday, may take. | Carolyn Kaster/AP Photo Trump’s ‘Fake News Awards’ could violate ethics rules Little is known about what the president intends to do Wednesday, but some experts aren't taking it lightly.

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 for Wednesday, may take. But Norman Eisen , the former special counsel for ethics for President Barack Obama, and Walter Shaub , the former head of the Office of Government Ethics, have both tweeted that if White House staff members were involved, they would be in violation of the executive branch’s 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.”

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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 that he has nothing to do with the awards, saying that “it’s from a campaign,” though it was not clear exactly what he was referring to.

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.”

Federal officials who violate ethics rules can face discipline from their agencies, ranging from censure to suspension to dismissal. While the Office of Government Ethics sets forth the regulations and can urge the White House to act, it does not have the power to actually enforce them. That means that the White House, essentially, polices itself.

Early in his administration, Trump outraged ethics experts by failing to seriously discipline Kellyanne Conway, his senior counselor, when she promoted his daughter’s clothing and jewelry line on “Fox & Friends” and told viewers, “Go buy Ivanka’s stuff.”

That case, unlike this one, Briffault said, was a clear violation, since Conway was using her position to promote a product line that has nothing to do with governing.

But as Clark, the Washington University professor, said: “We’ve already seen that this White House, really, unlike its predecessors, does not impose significant discipline on those who violate the ethics rules in ways that the president approves of.”

Eisen conceded that any action related to the “fake news awards” would be unlikely.

“It’s ultimately tried in the court of the public opinion,” he said.

Painter, the Bush ethics lawyer, said that he believed that First Amendment issues could be at stake, something more serious than the ethics rules. Problems could arise, he said, if Trump threatened any sort of action against media outlets he dislikes — as he has in the past — during the awards.

“He has First Amendment rights himself, but he can’t use those to threaten newspapers with official action if they don’t do what he wants,” Painter said.

Trump has mused on Twitter about whether NBC should lose its broadcasting license , and tied together the Washington Post’s coverage and tax policies related to Amazon, both owned by Jeff Bezos. Speculation has also swirled around whether the president’s animus toward CNN affected the Justice Department’s decision to oppose the merger between its parent company, Time Warner, and AT&T.

Frederick Schauer, a First Amendment expert at the University of Virginia Law School, said that nothing about the awards themselves would cause First Amendment problems, but that trouble could arise if Trump used them as an occasion to issue legal threats.

“The First Amendment’s speech and press clauses would be implicated if the administration threatened prosecution or other legal action, but not by mere differential criticism, condemnation, and praise,” he said in an email.

Rebecca Tushnet, a First Amendment professor at Harvard Law School, said that any sort of threat — including those similar to the ones Trump has previously made — would be a problem.

“Part of what the First Amendment is about is we want to avoid a chilling effect,” she said. “If NBC curtails its coverage as somebody reasonably might do after the president says he wants to go after you, he doesn’t actually have to do it to create the harm that the First Amendment is designed to combat. The threats themselves are problematic.”

“I don’t know that you could succeed in court,” she continued. “But is it the kind of thing the First Amendment is concerned about? Obviously.”

Even if nothing comes of these discussions, said Clark, they point to the bizarre nature of the “Fake News Awards” and the dangers of the president’s war on the press.

“I think that the government ethics issue,” she said, “is, frankly, another hook for raising the issue of the more fundamental way the Trump administration is trying to undermine democracy by undermining the press.”

