Last week, the New York Times reported that the president’s daughter and son-in-law “remain the beneficiaries of a sprawling real estate and investment business still worth as much as $740 million.” Jared Kushner’s business depends on “foreign investment from undisclosed sources.” And to top it off, Ivanka Trump still has her stake in her father’s Washington, D.C., hotel, where foreign governments book rooms and events. Like President Trump, they have ceded management roles in their businesses but not their ownership stake. They are, therefore, in danger of running afoul of both constitutional and statutory prohibitions.
The emoluments clause applies not only to the president but also to “any person holding any office of profit or trust under the United States.” Surely that includes senior advisers to the president. Ethics experts Richard Painter and Norman Eisen explain:
Ivanka has reported rental income of $1 million to $5 million from the Trump Old Post Office LLC investment. This raises the same constitutional conflict of interest issue as for her father. The Foreign Emoluments Clause of the Constitution bars any federal official from receiving any payment of “any kind whatever” from a foreign government. Several diplomats representing foreign governments have participated in events at the Trump International Hotel, including Kuwait which recently held its National Day event there. Unless she divests her interest, Ivanka runs a similar risk of running afoul of the Constitution. The hotel is also a problem for Ivanka under the federal conflict of interest statute, which bars her from taking any official action relating to her investment — even going to the hotel on official business.
Unlike the president, Ivanka Trump and Jared Kushner also are subject to federal ethics laws including the key provision barring an employee “by criminal statute, 18 U.S.C. 208(a), from participating personally and substantially in an official capacity in any particular matter in which, to his knowledge, he or any person whose interests are imputed to him under this statute has a financial interest, if the particular matter will have a direct and predictable effect on that interest.” Likewise, as Treasury Secretary Steve Mnuchin found out when he tried publicly touting a movie he had produced, the Kushner-Trump duo cannot use their government positions to benefits themselves. (“An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity, including nonprofit organizations of which the employee is an officer or member, and persons with whom the employee has or seeks employment or business relations.”) Again these are criminal statutes.
This raises a host of questions, including whether they are recusing themselves from any matters, and whether Ivanka Trump will be touting her fashion lines. Eisen tells Right Turn that “there will have to be very broad recusals for both Jared and Ivanka under federal ethics law. (Remember, the holdings of one spouse or imputed to the other under that law.)” He observes, “They hung onto wide ranging interests in or relating to finance (many bank loans), real estate and foreign trade, and they will need to have substantial recusals in those three areas, and in tax policy as well to the extent it directly affects their investments (which is a substantial extent).” He continues: “Then there is the million (or in this case the many trillion) dollar question: Will those recusals be enforced? I am sorry to say I doubt whether the White House can be trusted to enforce those recusals and detect and punish violations given its woeful ethics enforcement record to date.”
Now, Kushner has recused himself from a specific issue, Section 8 vouchers, given that he owns apartment complexes that receive federal vouchers. But now that Kushner is charged with reforming the entire government, there are myriad tax, regulatory, budget and other policy issues that would affect someone with vast holdings, including those with foreign investors.
If there were a functioning House Oversight and Government Reform Committee, this would be a top priority for oversight hearings. Instead, the committee’s chairman, Rep. Jason Chaffetz (R-Utah), remains seemingly uninterested in pursuing any matter that might make the Trump family squirm.
The ranking Democrat, Rep. Elijah Cummings (D-Md.), and Sens. Thomas R. Carper (D-Del.) and Elizabeth Warren (D-Mass.) requested in a letter that Kushner provide information about potential conflicts. The Baltimore Sun reported:
“Neither the White House nor Mr. Kushner’s attorneys … has confirmed which financial assets Mr. Kushner still controls — rendering oversight of Mr. Kushner’s recusals and compliance with conflict-of-interest law impossible,” the letter from the three Democrats said.
The White House said Kushner was fully complying with ethics rules, had divested of substantial assets and recused himself in the case of interests that he still owned.
In their letter, the legislators also sought more information on the assets of Ivanka Trump, the president’s daughter and Kushner’s wife. … They asked which issues the White House counsel would advise Kushner to recuse himself from to avoid benefitting his wife’s financial holdings.
Cummings’s office tells us the lawmakers received no response. Their request should be renewed and expanded to include detailed information on Ivanka Trump’s holdings and planned recusals. In the near run, sadly, House Speaker Paul Ryan and Senate Majority Leader Mitch McConnell (R-Ky.) remain so consumed with partisan defense of the White House and fixated on enlisting Trump’s help on legislative priorities (as if he could be of any help) that they are likely to be disinclined to ensure the integrity of the federal government, insist on enforcement of our ethics laws or require meaningful oversight when it comes to the Trump family’s finances.
Sen. Sheldon Whitehouse (D-R.I.), who has taken a lead role in ethics issues afflicting the Trump administration, tells Right Turn, “Scandal follows conflict of interest like night follows day. This administration’s disregard for ethics standards could spell huge gains for Trump officials and family members — and big trouble for our nation.” It is hard to argue with that sentiment, given what we have already seen in this administration.
As with the Russia scandal, Republicans should do some soul-searching and decide whether they want to defend a morals-deficient White House or fulfill their constitutional obligations. History will not treat them kindly if they continue turning a blind eye on conflicts, allowing the Trump family to shred the ethics architecture that administrations of both parties have built. Being the most powerful legislative leaders in the GOP should require some higher obligation to Congress and the American people beyond pushing a tax bill or constructing a budget. Ryan and McConnell should raise their sights. Otherwise, voters may decide Republicans do not deserve to hold the majority of either house.