It was bad enough when Hillary Clinton as secretary of state agreed to have meetings with people who had given to her foundation. Now, according to news reports, Ivanka Trump, while a federal employee, is soliciting donations for a new fund from foreigners. This comes on top of instances in which she sat with heads of state (from Japan and China) at a time that her business was doing deals in their countries.
Mike Allen reports: “Ivanka Trump told me yesterday from Berlin that she has begun building a massive fund that will benefit female entrepreneurs around the globe. Both countries and companies will contribute to create a pool of capital to economically empower women. … Canadians, Germans and a few Middle Eastern countries have already made quiet commitments, as have several corporations, a source said.”
If true, this is egregious and potentially illegal, according to multiple ethics and legal experts. “If the donation would be a quid pro quo bribe, then asking for it is certainly solicitation of a bribe, which is every bit as criminal as the bribe itself,” Harvard Law professor Laurence Tribe tells me via email. “But I started that sentence with ‘if’ because I don’t have enough facts about the donation request to opine on the ultimate bribe issue.” Nevertheless, he says:
At the very least, though, a donation is a “present,” which – if made by a foreign government or an agent of such a government or an entity controlled by it – is expressly banned by the text of the Foreign Emoluments Clause with respect to anyone holding “any Office of Profit or Trust” under the United States. Whether it counts as an “emolument” becomes irrelevant if it’s a “present,” which any donation would at least be.
Tribe explains, “Even if the First Daughter and Assistant to the President somehow manages to create formal distance between herself and that version of the Clinton Foundation, which of course her father denounced endlessly during the campaign, the hypocrisy of the move is jaw-dropping.” He adds, “Such contributions would surely constitute a financial benefit to … her brand, and her family’s brand even if she is unable to spend a penny of the contributions themselves. As such, soliciting such contributions violates at least the spirit of the Foreign Emoluments Clause.”
Even more explicitly, the Office of Government Ethics rules, former Republican ethics counsel Richard Painter tells me, “prohibit use of official position to solicit for ANY charity or other private entity.” The OGE guidelines specifically state: “Executive branch employees are subject to restrictions on the gifts that they may accept from sources outside the Government. Unless an exception applies, executive branch employees may not accept gifts that are given because of their official positions or that come from certain interested sources.” The rationale for this is obvious (except to Trump). “Even if a gift is from a person or organization that has no official dealings with the employee’s agency, accepting a gift offered because of the employee’s official position may create an appearance of using public office for private gain,” the OGE guidelines explain. “Moreover, if an employee receives a payment from an outside source in some circumstances, the public may believe that the employee is serving two masters or is distracted by outside activities.”
It’s stunning, really, that she apparently would behave in ways so flagrantly in violation of ethical and legal norms, especially in an administration promising to drain the swamp and after a campaign in which the Clinton Foundation was vilified. Certainly, as ethics guru Norman Eisen tells me, “The devil is in the details” with these arrangements. That said, coupled with the Trump family’s ongoing web of conflicts perpetuated by their refusal to sell assets (as Cabinet secretaries were required to do), this takes on, as Eisen puts it, the appearance of “a slow-motion Train wreck unfolding before our eyes.” Eisen adds: “The worst thing of all is that the goal is a very noble one that the Trumps have made it impossible to honestly pursue because of the kleptocratic baggage they’ve brought to government.”
The solution is simple: Ivanka Trump should leave the administration and refrain from actions every other executive branch employee is prohibited from undertaking. If we only had some sort of body, an independent branch of government perhaps that was explicitly tasked with oversight responsibilities. Alas, may after the 2018 elections one will appear.
UPDATE: The Post’s David A. Fahrenthold reports, “The World Bank is in discussions with Ivanka Trump about establishing a kind of World Bank-managed fund to help women entrepreneurs, according to bank officials. Discussions are at a very early stage, and almost no details of the plan have been agreed to, said the officials, speaking on the condition that their names would not be used. The fund’s name and specific mission had not been chosen, they said, and no money has been raised.” It’s not clear what is being contemplated here or how it would comply both with U.S. ethics rules and World Bank procedures. Ivanka Trump’s lawyer, Jamie Gorelick, declined to answer a series of questions about how this complies with applicable law but insisted, “This is a World Bank fund, not an Ivanka Trump fund.” For now, it sounds like an idea someone dreamed up, without much thought to specifics.
UPDATE II: Now Ivanka Trump will have no role in such a fund, soliciting or otherwise. Hmm. It almost seems like in the course of a day someone figured out this was a horrible, if not illegal, idea.