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Why Trump and Kellyanne Conway probably won’t face consequences over the Ivanka-Nordstrom flap

US President Donald Trump with his Counselor Kellyanne Conway
Mark Wilson | Getty Images
US President Donald Trump with his Counselor Kellyanne Conway

Let's not beat around the bush. It was unethical, unbecoming, and just plain stupid for President Donald Trump and White House Counselor Kellyanne Conway to personally use their prominent public platforms to weigh in on Nordstrom's decision to pull Ivanka Trump's clothing line from their stores.

Trump earlier this week tweeted that "My daughter Ivanka has been treated so unfairly by @Nordstrom. She is a great person – always pushing me to do the right thing! Terrible!" (And it was retweeted by the official @POTUS account) The next day, on "Fox & Friends, " Conway said, "Go buy Ivanka's stuff, is what I would tell you."


Their actions unleashed a firestorm of criticism — as well as ethical concerns that they may have just broken a law. So what's going to happen to President Trump and Conway — could they be sued or lose their jobs?

Both are highly unlikely. Here's why.

Let's start with the president. As stupid and peevish as President Trump's tweet was, it's not likely actionable on Nordstrom's part for a number of reasons. (No, presidential immunity is not one of them.) The precedent that a president cannot be sued while in office stems from Nixon v. Fitzgerald and that is only over "official actions" he or she takes as president. Trump's tweet about Ivanka was not even close to an official executive act.

The real reason why Nordstrom won't be able to go very far with any possible legal action against the president is because the existing slander and libel laws just won't support them. First off, for such a lawsuit to be successful, the plaintiff must prove that it's suffered in some real and financial way. So far, with so many celebrities and other groups vowing to start buying more at Nordstrom stores this week, the chain may end up gaining financially from the Trump attack. And even if that doesn't quite happen, anyone who covers the retail industry knows that it's often hard to really pinpoint the cause of declining sales. Retail chain earnings reports are infamous for playing games with excuses for weaker numbers, including simultaneously blaming good and bad weather for discouraging shoppers during the same quarter!

But it goes further than that. James Nuzzo, a legal scholar and founder of The Colchester Group consulting firm, took a closer look at President Trump's tweet and noticed something very important was missing: Specifics. All the tweet accuses Nordstrom of "doing" is being "very unfair," Nuzzo points out. Any lawsuit the company brings against Mr. Trump would have almost no chance of success. Moreover, the U.S. Supreme Court has gone further in recent decades to make it even more clear that only factual misrepresentation, in other words specific lies — not opinion — would be considered libel or slander. And the tweet almost seems to have been crafted very wisely with that precedent in mind. Someone saying another person or company is "unfair" is almost the definition of an opinion as "fairness" cannot really be defined legally or otherwise. In short, don't expect President Trump to get a slap on the wrist or any other kind of slap from the courts over this.

Congress is a different matter. A much stronger argument could be made that Congress could officially censure President Trump for his conduct connected to the tweet against Nordstrom and several others like it that specifically attacked or demeaned businesses and individuals.

However, as long as Congress overall and entities like the House Oversight Committee are controlled by Republicans, that scenario is also unlikely. President Trump may not have strong approval ratings overall, but he remains popular enough to keep his fellow Republicans from jumping ship en masse. Throw in the fact that Trump won the overwhelming majority of the states where Senate seats are up for grabs in 2018, and you realize that both Republican and Democratic candidates are going to have to be careful about how they attack and challenge the White House. That doesn't mean that this Nordstrom incident couldn't come back to harm the Trump administration in the long run, but the political map of Washington and those 30 red states that President Trump won in November will have to change first.

That brings us to Conway. Her position is simply not as strong as President Trump's, but the likelihood of her paying a real price for hawking Ivanka's products is also remote. Ethically, Conway is on shaky ground by making such a specific and brazen call for consumers to buy Ivanka's clothing line. There is a rule in the Code of Federal Regulations that states a federal employee shall not use his or her office "for the endorsement of any product, service or enterprise."(The president and vice president, incidentally, are exempt from this rule.)

But just like the president, Conway is not likely to be admonished officially by any congressional panel while the GOP still controls both Houses on Capitol Hill. And, ultimately, it would be up to the president to determine any disciplinary action of a federal employee. Trump is 1) probably not inclined to do that and 2) has an inherent conflict of interest in the matter since it is over his daughter, Ivanka.

However, if certain Republican leaders like House Oversight Committee Chairman Jason Chaffetz decide that going after Conway would be politically worth it, look out. Chaffetz might actually be thinking of a way to challenge the Trump White House without targeting the president himself after he was confronted by shouting audience members at his local town hall event in Utah Thursday night. Again, Conway is probably not in real danger of that happening to her right now. But she's clearly more expendable than the president will ever be to the GOP establishment and leaders in Congress.

Speaking just from a point of right and wrong, the president and Conway are both in the wrong in this Nordstrom matter. Yes, it really looks like Trump's tweet was expertly crafted to avoid those libel laws. And, yes, Conway likely knew she wouldn't really ever face an ethics charge for what she said. Politically and legally, it's a big stretch to think President Trump or Conway will pay any real price for it right now. But it's all still conduct unbecoming the office, and it gives the president's hysterical enemies yet another reason to hyperventilate.

A more likely scenario is that the White House team learns from this experience and self-regulates on matters like this going forward. We're already seeing some forms of moderation from President Trump from his endorsement of the "One China" policy to more circumspect statements about Middle East peace. Lawsuits or now lawsuits, censures or no censures, simply look for the president and his messaging team in the coming weeks to stop saying and tweeting a lot of the more outrageous things it's been saying and tweeting so far. The election is over, and uniting the country will soon become more of a goal for the communications team in addition to the policy folks.

No matter how politically experienced new presidents are, taking over the Oval Office has always been a learning experience. This learning experience just happens to be on a steeper curve.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

For more insight from CNBC contributors, follow @CNBCopinion on Twitter.