Welcome to a new series, “I’m not a Lawyer, but . . .”
I’ve found that I keep having to dig down into legal codes to get to the bottom of a story. At least, more than I thought I would when I started the blog.
Because the media has a nasty habit of just repeating stuff without doing any fact-checking at all.
So, I get to do it.
So, today, we’re looking at this accusation:
Sarah, I know you don’t care even a tiny little bit about the ethics rules, but using your official account for this is a clear violation of 5 CFR 2635.702(a). It’s the same as if an ATF agent pulled out his badge when a restaurant tried to throw him/her out. https://t.co/Fj6OfBAdew
— Walter Shaub (@waltshaub) June 23, 2018
So, briefly, I just want to point out that you can respect someone’s right to do something and also think they’re behaving poorly.
I think the restaurant owner has the right to kick Sanders out, for any reason.
That being said, I think her reason is crappy. I don’t believe it was a deeply-held moral conviction since the owner put it up to a vote with her employees. The strongest convictions in our lives drive us to do things, often without thinking. This was measured, calculated in a way that suggests it wasn’t. Now, I can’t know their intent, but there are reasons to doubt it was what they said it was.
Additionally, the owner followed Sanders’ family out of the restaurant, “called people, and organized a protest yelling and screaming at them from outside the other restaurant and creating this scene,” according to Mike Huckabee.
That’s awful behavior. Clearly.
So, there’s a couple of things we’re going to have to put to the side before we dig in.
First, we’re going to have to put aside the fact that Sanders is regularly attacked for just doing her job. A job, I might point out, in which she is only the third woman, compared to 28 men.1
We’re also going to have to put aside the fact that the person alleging that she was appointed to his governmental ethics position during Barack Obama’s presidency. And that he also now works at the Campaign Legal Center, a left-leaning organization that has taken money from George Soros’ Open Society Foundations, which itself often supports far-left organizations.
There are definite reasons to suspect that Walter Shaub is not completely unbiased here.
Luckily, he’s already given us everything we need to debunk what he’s saying.
I’m not a lawyer, but Sarah Huckabee Sanders did nothing wrong.
Before we did into the legal code that Walter cites, we need to look at the second half of his tweet.
“It’s the same as if an ATF agent pulled out his badge when a restaurant tried to throw him out.”
The implication is that the ATF agent is using his badge to prevent himself from being thrown out.
Let’s play Mad Libs and transfer the same idea to the Sanders situation.
The implication is that Sanders is using her Twitter account to prevent herself from being thrown out.
Well, that’s not what happened.
Sanders left when she was asked to leave.
And the first two words of her tweet are “[l]ast night.” She is literally telling a story about something that happened to her, after the fact. There’s no way she can change what happened. She can’t prevent herself from being thrown out.
So, Walter is wrong. It’s not like that at all.
But, there’s a chance that his specific example is horrible and the legal code in question still applies.
The full text of 5 CFR 2635.702(a) can be found here. I recommended you give it a read. It’s not that long, but it is kind of wide ranging, so I am going to pull out what I consider to be the most relevant excerpts. Again, you should read it for yourself in case I missed something.
The name of this particular code is “Use of public office for private gain.”
The first part reads “[a]n employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise . . . The specific prohibitions set forth in paragraphs (a) through (d) of this section apply this general standard, but are not intended to be exclusive or to limit the application of this section.”
The four prohibitions are:
- Inducement or coercion of benefits
- Appearance of governmental sanction
- Performance of official duties affecting a private interest
- Use of terms of address and ranks
Right off the bat, we can eliminate (e), as there’s no way it could apply.
(d) applies to relations between government employees and their friends, so it can go, too.
Sanders is clearly not endorsing the Red Hen, so (c) doesn’t apply.
Sanction in (b) appears to be using the “authoritative permission or approval” meaning of the word. Again, it doesn’t appear to apply.
(a) Inducement or coercion of benefits might apply. It reads “[a]n 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.”
Is eating at the Red Hen a benefit?
Given that, as far as I am aware, there are no other instances where the Red Hen has refused service to anyone, it would be hard to make the case that eating there is a benefit. It’s not exclusive, you just walk up, get a table, and eat. It’s something that literally anyone can do.
But, we can posit that eating there is a benefit, just for the sake of argument.
Then we would have to prove that Sanders intends to use her official position to get that benefit.
Sanders’ tweet, as written, doesn’t support that conclusion. It’s literally a story about what happened with a little bit of moralizing tacked on. There’s no threats or attempts at coercion that I can see. Furthermore, why would she want to eat there again? I wouldn’t, if I were here.
Though, you could suggest that putting it out on Twitter was a call to action for her followers. That would hard to prove, as she doesn’t explicitly do it.
So, if you assume she actually wants to go back to the Red Hen, she is using her official position to coerce the Red Hen into letting her eat there, and that eating at the Red Hen is a benefit, then you’d have a case.
As things stand, though, you don’t have that case without a lot of assuming.
It’s disappointing that Walter Shaub was ever in charge of the Office of Government Ethics, because, at least in this instance, his case is built on flimsy, hyper-partisan ground. It doesn’t say good things about his integrity or character.
I’m no lawyer, but this argument has no merit.