When President Trump appointed his son-in-law Jared Kushner as a senior advisor, the appointment appeared to run afoul of the federal anti-nepotism statute. The statute specifies both that the prohibition against hiring family members applies to the president and that sons-in-law are family members.[i] Given the even closer proximity of their relationship, President Trump’s more recent hiring of his daughter Ivanka Trump seems to be an even more apparent violation of the statute. Overturning decades of precedent,[ii] however, the Department of Justice’s Office of Legal Counsel released an opinion shortly after Mr. Kushner’s appointment concluding that, based on another statute, the president is exempt from the anti-nepotism statute when hiring White House employees.[iii]

Whether or not this legal analysis holds up, President Trump’s hiring of his son-in-law and daughter undoubtedly violates the intended purpose of the anti-nepotism statute. Originally passed after President Kennedy appointed his brother as attorney general, the statute manifestly aims to prevent the president from appointing family members to government positions.[iv] Allowing nepotism – especially at the highest level of government – undermines the integrity of the Administration’s policy making.[v] President Trump’s appointments of his daughter and son-in-law make clear that he is not interested in selecting the most qualified candidates, and also may violate President Trump’s own Ethics Pledge.[vi] Neither Mr. Kushner nor Ms. Trump has any significant experience in policymaking.[vii] For example, Mr. Kushner has little experience in his expanding portfolio of assigned areas of responsibilities, which include: brokering Middle East peace, solving the opioid crisis, improving government through data and technology, reforming the criminal justice system, reforming veterans care, and managing diplomatic relations with Mexico and China.[viii] These appointments also are likely to inhibit the ability of other government employees to give candid opinions about policy proposals and personnel matters for fear of alienating the president’s family members.[ix]

Moreover, serving as a presidential advisor to a close family member raises a larger and more serious question about whether Ms. Trump’s and Mr. Kushner’s primary allegiance is to the Constitution or to President Trump personally and his brand. In a monarchy, these interests may be one and the same, but not necessarily in a democracy.

President Trump’s nepotism is especially concerning given this White House’s lax approach to ethical misconduct.[x] The White House counsel has already failed to take significant disciplinary action for clear ethics violations by Kellyanne Conway (violations that expressly benefitted Ms. Trump, though Ms. Trump was not implicated in them), and it is not known whether the White House Counsel made the appropriate referral to the Department of Justice’s Office of Public Integrity in another incident of apparent ethical misconduct. Based on this track record, it is even less likely the president’s own family members would be held accountable.

Mr. Kushner’s and Ms. Trump’s appointments as presidential advisors are all the more concerning because of the high risk that they carry their own significant conflicts of interest. Like the president, both have refused to put their assets in a blind trust to be sold – the most effective method to avoid conflicts of interest.[xi] Although they have taken some steps to reduce possible conflicts of interest,[xii] their many remaining assets place them in an ethical minefield. Mr. Kushner retains extensive real estate properties in multiple American cities, and has reported large lines of credit with several major banks for which he retains personal liability.[xiii] Ms. Trump retains sole ownership and veto power over her international fashion franchise, and recently received preliminary approval for several trademark applications in China.[xiv] She also has a large stake in the Trump International Hotel in Washington, D.C.[xv] In addition, the fact that they are married complicates the risks; under the applicable criminal statute they share any conflicts of interest that arise, even if that conflict arises from the other partner’s assets.[xvi] The fact that their financial interests overlap in some cases with those of the president further complicates the web of conflicts they may face since they may have duplicative and reinforcing incentives to advance those interests.

To avoid conflicts arising from these holdings, Mr. Kushner and Ms. Trump should recuse themselves from a wide variety of issues likely to be addressed by the Trump administration, including many related to the real estate industry, the financial services industry, taxes, trade matters involving China, and intellectual property.[xvii] However, using recusals to address their conflicts of interest does not account for their wide-ranging areas of responsibility, the fluid nature of the policy-making process, and the reality of situations where it is difficult to step out of the room when the president needs and is seeking advice from his most trusted advisors. They would also need to avoid anything to do with the Trump Washington, D.C. hotel, including even suggesting that an official event be held there.[xviii] If such conflicts of interest arise – which seems all but inevitable given their wide spheres of influence – and one or both of them fail to recuse themselves, they may subordinate America’s interests to their own and even open themselves to criminal prosecution.[xix]

The concern that the couple’s financial interests and their official positions would intersect has already materialized. On April 6, the same day that Ms. Trump and Mr. Kushner dined with Chinese President Xi Jinping and his wife at a dinner hosted by the president at Mar-a-Lago, the Chinese government provisionally approved three new trademarks for the Ivanka Trump brand.[xx] Having approved these trademarks, the Chinese seemingly sent a message that they are prepared to engage with Ms. Trump and Mr. Kushner by providing them with business favors. Ms. Trump’s acceptance of these benefits highlights the significant conflicts of interest she and her husband will face and her susceptibility to potential violations of the foreign emoluments clause of the U.S. Constitution.

Moreover, the public does not know the full extent of the possible conflicts of interest Mr. Kushner and Ms. Trump may face. Mr. Kushner has yet to disclose many of the investors and creditors for the family real estate holdings in which he reports a financial interest, which may well create further conflicts, and there is little transparency or limitation placed on the overseas activities of Ms. Trump’s businesses or on the benefits that may be conferred by foreign governments to enhance her brand marketability and consumer access while she serves as a federal official.[xxi]

In addition, Mr. Kushner’s failure to report foreign government contacts on his national security questionnaire, including his meetings with Russian Ambassador Sergey Kislyak and with the head of a Russian state-owned bank during the transition period, raise separate national security and conflict of interest concerns.[xxii] Mr. Kushner’s attorney called the omissions “an error,” [xxiii] and informed the FBI that he will be providing supplemental information.[xxiv] Punishment for failing to disclose foreign contacts on a national security questionnaire or in an FBI interview can be severe.[xxv] Officials can lose access to intelligence or face criminal penalties for making a false statement.[xxvi] Several House members have also called for Mr. Kushner’s security clearance to be suspended.[xxvii]

 

[i] 5 U.S.C. § 3110.

[ii] Susan Hennessey and Helen Klein Murillo, Ivanka Trump’s West Wing job isn’t just unethical. It’s also dangerous, Washington Post, Mar. 23, 2017, available at https://www.washingtonpost.com/posteverything/wp/2017/03/23/ivanka-trumps-west-wing-job-isnt-just-unethical-its-also-dangerous/?tid=ss_tw&utm_term=.0411bc8cecf6.

[iii] DOJ’s argument was based primarily on 3 U.S.C. § 105(a), which authorizes the president “to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service,” as long as the employees’ pay is within certain salary caps. Memorandum for the Counsel to the President from Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Application of Anti-Nepotism Statute to Presidential Appointment in White House Office (Jan. 20, 2017), available at https://www.justice.gov/opinion/file/930116/download.

[iv] Alan Yuhas, Jared Kushner cleared for Trump job, breaking with decades of legal advice, The Guardian, Jan. 20, 2017, available at https://www.theguardian.com/us-news/2017/jan/21/jared-kushner-donald-trump-job-white-house-nepotism.

[v] Hennessey and Murillo, Washington Post, Mar. 23, 2017.

[vi] Executive Order 13770, Ethics Commitments by Executive Branch Appointees, Jan. 28, 2017, sec. 1(8) (“I agree that any hiring or other employment decisions I make will be based on the candidate’s qualifications, competence and experience.”)

[vii] Samantha Wilson, “Ivanka Trump Scores Official White House Job Along With Husband – Is That Fair?,” Hollywood Life, Mar. 29, 2017, available at

http://hollywoodlife.com/2017/03/29/ivanka-trump-official-white-house-job-unpaid-president-assistant-fair/.

[viii] Ashley Parker and John Wagner, Kushner has a singular and almost untouchable role in Trump’s White House, Washington Post, April 3, 2017, available at https://www.washingtonpost.com/politics/kushner-has-a-singular-and-almost-untouchable-role-in-trumps-white-house/2017/04/03/df4e7cf8-1897-11e7-855e-4824bbb5d748_story.html.

[ix] Editorial, Pick Your Favorite Ethics Offender in Trumpland, New York Times, Apr. 1, 2017, available at https://www.nytimes.com/2017/04/01/opinion/sunday/pick-your-favorite-ethics-offender.html.

[x] Lauren Evens, Ivanka Trump Is Joining Her Father In The White House And There Are No Laws To Stop Her, The Village Voice, Mar. 22, 2017, available at http://www.villagevoice.com/news/ivanka-trump-is-joining-her-father-in-the-white-house-and-there-are-no-laws-to-stop-her-9800070.

[xi] Richard Painter, Norman Eisen, and Virginia Canter, Ethics laws will sideline Jared and Ivanka: Experts, USA Today, Apr. 3, 2017, available at https://www.usatoday.com/story/opinion/2017/04/03/ethics-laws-will-sideline-jared-kushner-ivanka-trump-painter-eisen-canter-column/99955864/# (“Jared, the president’s son-in-law and senior adviser, has resigned from more than 260 outside positions, including as CEO of the Kushner Companies and publisher of the New York Observer. He has divested or committed to divest approximately 80 holdings owned by himself, his spouse or their minor children. . . . Ivanka has resigned from all her officer positions with her outside companies, including those with the Trump Organization, according to the couple’s attorney. She has appointed a company president to manage her day-to-day business operations and turned over the businesses themselves to a trust managed by her brother-in-law and sister-in-law.”).

[xii] Id.

[xiii] Id. (“Jared has retained extensive real estate holdings primarily located in Chicago, Manhattan, Brooklyn, Philadelphia and throughout New Jersey. He has secured lines of credit (some of which are shared with his mother and father) through 10 banks, including Deutsche Bank, Bank of America and Citigroup.”)

[xiv] Rachel Abrams, Despite a Trust, Ivanka Trump Still Wields Power Over Her Own Brand, New York Times, Mar. 20, 2017, available at https://www.nytimes.com/2017/03/20/business/despite-trust-ivanka-trump-still-wields-power-over-her-brand.html; Erika Kinetz and Anne D’Innocenzio, Ivanka’s biz prospers as politics mixes with business, Associated Press, Apr. 19, 2017, available at https://apnews.com/d9e34f23a64947d99e4a7d757012c509.

[xv] Id.; Jill Disis, Ivanka Trump’s stake in D.C. hotel renews ethics questions, CNN, Apr. 4, 2017, available at http://money.cnn.com/2017/04/04/news/ivanka-trump-hotel-ethics/.

[xvi] Under 18 U.S.C. § 208, the financial interests of a spouse and minor children are imputed to a federal employee.

[xvii] Painter, Eisen, and Canter, USA Today, Apr. 3, 2017.

[xviii] Disis, CNN, Apr. 4, 2017.

[xix] Painter, Eisen, and Carter, USA Today, Apr. 3, 2017.

[xx] Kinetz and D’Innocenzio, Associated Press, Apr. 19, 2017.

[xxi] Painter, Eisen, and Canter, USA Today, Apr. 3, 2017; Jesse Drucker, Eric Lipton, and Maggie Haberman, Ivanka Trump and Jared Kushner Still Benefitting From Business Empire, Filings ShowNew York Times, Mar. 31, 2017, available at https://www.nytimes.com/2017/03/31/us/politics/ivanka-trump-and-jared-kushner-still-benefiting-from-business-empire-filings-show.html; Danny Hakim and Rachel Abrams, Ivanka Trump’s Global Reach, Undeterred by a White House JobNew York Times, Apr. 18, 2017 available at

https://www.nytimes.com/2017/04/18/business/ivanka-trump-trademark-brand.html.

[xxii] Jo Becker and Matthew Rosenberg, Kushner Omitted Meeting With Russians on Security Clearance Forms, New York Times, Apr. 6, 2017, available at https://www.nytimes.com/2017/04/06/us/politics/jared-kushner-russians-security-clearance.html.

[xxiii] Id.

[xxiv] Id.

[xxv] Id.; Max Greenwood, FBI interviewed Flynn shortly after Trump took office: report, The Hill, Feb. 14, 2017, available at http://thehill.com/homenews/administration/319512-flynn-was-interviewed-by-fbi-shortly-after-trump-took-office-report.

[xxvi] 18 U.S.C. 1001; see also Becker and Rosenberg, New York Times, Apr. 6, 2017.

[xxvii] Kyle Cheney, House Democrats want Kushner’s security clearance suspended, Politico, Apr. 13, 2017, available at http://www.politico.com/story/2017/04/jared-kushner-security-clearance-revoke-democrats-237177.