There is no question President Trump’s appointment of his daughter Ivanka and son-in-law Jared Kushner to highly sensitive government posts as his key advisors has skirted traditional ethics and nepotism laws.
Now that they are in the White House, to obey the law they are obligated to recuse themselves from areas where they are known to have financial and business interests. That may not be easy to do.
According to an article in USA Today by former ethics lawyers for George W. Bush, President Obama, and President Clinton who reviewed Kushner’s recently released filing about his finances, they have to stay out of many important discussions. Those include international trade issues – anything to do with China – as well as tax reform and Wall Street deregulation – all of which are high on the Trump agenda over the coming months.
“Any undetected lapses will impair the public interest. Detected violations could expose the couple to criminal prosecution,” states the article, “and the White House and all of us to more Trump scandal.”
That means if they advise Trump on anything having to do with these areas, they would violate the law and be subject to penalties including stiff fines and from one to five years in prison.
The USA Today article is by Richard Painter, who was chief White House ethics lawyer for President George W. Bush; Norman Eisen, who was the ethics lawyer for President Obama; and Virginia Canter, an associate counsel for ethics to both Presidents Obama and Clinton.
Their scholarly analysis was triggered after Kushner’s recent filing to the Office Of Government Ethics, which shows that he has assets worth as much as $700 million by himself and with his wife and three children. Under the law, both Kushner and his wife face interlocking ethics obligations based on holdings by one or both of them.
While Kushner and Ivanka Trump have resigned hundreds of corporate positions and promised to divest dozens of their holdings to take their White House jobs, that is not enough.
“Jared and Ivanka are now legally committed to the service of our country and are fully accountable under the federal conflict of interest laws,” write the ethics lawyers.
“Even so,” they continue, “there are still serious ethics concerns regarding the couple because (like the president) they have chosen not to divest all their assets or place them in a blind trust to be sold by the trustee to meet the ethics requirements of the law.”
It is not just the ethics laws that could trip up President Trump’s daughter and son-in-law. For instance, Ivanka Trump gets income of as much as $5 million a year from the Trump hotel in the Old Post Office not far from the White House. That could lead to a violation of the Foreign Emoluments Clause of the Constitution because foreign governments and diplomats regular stay at or hold events there. For instance, Kuwait recent held its National Day event in the hotel.
Ivanka could also be in conflict with the law by simply visiting the hotel or attending an event because the conflict of interest statute does not allow her to take any official action related to her investment, even if she is on official business.
Ivanka’s company has been turned over to others to run, and some assets are in trust, but the fact is that the companies still do business in China, among many places. That requires her to recuse herself from anything having to do with China policy, or for that matter anything related to trade policies, especially those connected to the textiles or fashion industry.
In Kushner’s case, he still has a lot of real estate holdings in New York, Chicago, Philadelphia, New Jersey and elsewhere, some of which have loans with banks including Bank of America, Citigroup, and the troubled German-owned Deutsche Bank, so he should recuse himself from anything having to do with these multi-national financial institutions.
Kushner also has personal lines of credit but doesn’t disclose the lenders. They reportedly include Goldman Sachs, the Blackstone Group, and banks in France and Israel, among others. So he should recuse himself on advising on anything having to do with Wall Street, or the financial services industry, including Trump’s plan to repeal the Dodd-Frank Act passed under President Obama.
“They both will also have to recuse from any decisions about tax benefits for the real estate industry,” adds the article, “and because the tax code is chock full of them, this will probably mean recusal from the entirety of tax reform. ”
“There are also many investors in Jared’s holdings whose identities are unknown who further create conflicts of interest,” says the article. “The mystery investors must be identified to gain a fuller understanding of these conflicts.”
This means to obey the law, Mr. and Mrs. Kushner must stay out of many of the most crucial discussions facing the Trump administration, which may turn out to be impossible given the loose way the President interprets the rules. Even a discussion over dinner about current events could violate the law.
If there is no timely action while Trump is President, these potential violations of the laws could create a long-term liability for Kushner and Ivanka, even into a future Democratic-controlled Congress or a new administration.
The Trump family seems to think they are above the law, but in the end, no one in the U.S. is above the law, no matter how rich or arrogant they may be, or what position their father holds in the government.