The Washington PostDemocracy Dies in Darkness

Trump confidants serving as presidential advisers could face tangle of potential conflicts

Trump's Transition: Who is Carl Icahn? (Video: Peter Stevenson/The Washington Post)

Billionaire investor Carl Icahn will have the ear of President-elect Donald Trump as an adviser focused on cutting government regulations. But Icahn also stands to benefit if his advice is taken: It could make the energy companies and others in which he has a stake more profitable.

Trump’s daughter Ivanka, who’s a major figure in her father’s business, has been present at transition meetings and is expected to continue to counsel him at the White House. So, too, is her husband, Jared Kushner, who has a web of business interests of his own that could be affected by Trump administration policy.

And another Trump intimate — his former campaign manager Corey Lewandowski — is making no secret of his desire to profit on his continuing closeness to Trump, setting up a new lobbying firm with an office just a block from the White House.

With confirmation hearings set to start for Trump’s Cabinet, ethics experts are voicing alarm about several other confidants of the president-elect — dubbed the “shadow Cabinet” by one — who might not be subject to such scrutiny and could face a tangle of potential conflicts between their personal interests and those of the public.

His lawyer said this weekend that Kushner is preparing to resign from his position overseeing his family’s real estate empire and to divest “substantial assets” if he takes a role in Trump’s White House.

In other cases, it’s unclear whether the usual safeguards of public disclosure and divestment will come into play to prevent those serving the president from profiting personally from their work. The concerns have been amplified by the fact that they will be reporting to a Republican president who has been slow to address the potential conflicts stemming from his own real estate holdings and other business interests.

Some of the advisory roles Trump has set up or is openly contemplating fall into “very murky territory,” said Norman Eisen, who served as the chief White House ethics lawyer under President Obama.

Richard W. Painter, who held the same position as Eisen under President George W. Bush and now sits with him on the board of Citizens for Responsibility and Ethics in Washington, said “it poses an enormous risk to have a shadow Cabinet.”

Trump transition officials did not respond to requests for comment. An attorney for Icahn said he will “follow the law as he always has,” while Kushner’s attorney said he is consulting with the Office of Government Ethics regarding the steps he would take.

The appointment of Icahn — whom Trump praised as “someone who is innately able to predict the future, especially having to do with finances and economies” — has drawn the sharpest criticism. Painter said Icahn’s status as an unpaid adviser is “disingenuous.”

The billionaire investor made his name on Wall Street as one of the most successful corporate raiders of the 1980s, including making nearly $500 million from his stake in Trans World Airlines. As an investor in Trump's hotels, he has clashed with the president-elect over business deals in the past but also provided financing at critical moments to keep Trump afloat. Icahn ranks among the 50 richest people in the world, according to Forbes.

In the wee hours after Election Day, as supporters celebrated Trump's victory in a ballroom at the New York Hilton in Midtown Manhattan, Icahn ducked out of the festivities. He was tracking the initial plunge in financial markets over Trump's upset win and decided to make a bet.

The Post’s Ed O’Keefe explains how confirmation hearings in the Senate work. (Video: Bastien Inzaurralde/The Washington Post, Photo: Matt McClain/The Washington Post)

“I couldn’t put more than $1 billion to work,” Icahn told Bloomberg TV the day after the election. “The world was going into a panic for no reason. I think Donald coming in is a good thing for the economy, not a bad thing.”

Trump's presidency also stands to be particularly good for Icahn. He has long railed against regulation from Washington, most recently in the energy sector. Now he is being tasked by Trump to help him slash government regulations in the newly created role of special adviser for regulatory reform.

Trump's transition team emphasized that the title comes with no official duties and no salary — and is therefore not subject to federal disclosure requirements or conflict of interest laws. In an interview on CNBC, Icahn said that he will simply be "talking to Donald as I've talked before."

The confirmation process is designed in part to air potential conflicts. For example, Trump’s incoming commerce secretary, Wilbur Ross, who made a fortune in the steel industry, will likely be asked to explain how he will oversee a department that has significant oversight of that sector.

While White House staff members do not face confirmation hearings as Cabinet secretaries do, they must file disclosure forms revealing their finances. They also have to divest assets that create conflicts of interest or abide by rules requiring them to recuse themselves from decisions that could affect those assets.

Icahn’s role is so nebulous that it is difficult to tell how it should be categorized. The nature of his work could make him a de facto government employee — subject to disclosure requirements and conflict of interest laws — even if he is not paid.

“Is it in the public interest for him to take that position and for us to not know what he’s doing?” said James Thurber, director of the Center for Congressional and Presidential Studies at American University.

Watchdog groups have raised concerns about how much influence Icahn might wield over rolling back regulations that could benefit him personally. In the CNBC interview, he expounded at length over what he deemed "insane" rules dictating how much ethanol refineries should blend into gasoline. Shares of CVR Energy, a petroleum refinery in which he holds a significant stake, have almost doubled in price since the election.

In addition, it is unclear whether Icahn's position could provide him special access to political intelligence. Legislation passed in 2012 prohibits members of Congress and certain positions within the executive branch from trading based on nonpublic political information.

Democrats are already questioning whether Rep. Tom Price (R-Ga.), Trump's nominee to lead the Department of Health and Human Services, violated that law by trading health-care stocks during the crafting of the Affordable Care Act.

Trump’s unusual willingness to intervene in the business decisions of individual companies could also create greater potential for conflicts of interest. On Thursday, Trump criticized Toyota for building cars in Mexico and selling them in the United States, sending the company’s stock plunging.

“The fear would be that he could be privy to knowledge that could affect the market in some ways or different corporations he has a stake in or against,” said Jordan Libowitz, a spokesman for Citizens for Responsibility and Ethics in Washington. “He could make a move before the rest of America knows about it.”

In an email, Jesse Lynn, general counsel of Icahn Enterprises, said Icahn’s title was not intended to formalize his role in the new Trump administration but to acknowledge the long-standing relationship among two New York dealmakers.

Jan Baran, a campaign and elections lawyer at Wiley Rein, said conflict of interest laws only cover information that has the potential to affect a specific company, not a broad industry. And he said that many presidents often have a coterie of unofficial advisers, many of whom lack real power.

“It kind of reminds me of Peter the Great when he was the czar of Russia” in the late 1600s and early 1700s, Baran said. “He didn’t have much in the way of money that he could give to anybody, so he started giving blue ribbons. This might be Trump’s version of a blue ribbon.”

Trump has not made formal announcements about the role his daughter and son-in-law will play in the administration. But those around him have suggested that Ivanka Trump could be involved in policies affecting working mothers, while Kushner’s portfolio could include advising the president on foreign policy, particularly the Middle East.

What would happen to their business interests remains unclear. Ivanka Trump has played a leading role in her father’s business and has a clothing line. Kushner has a web of business interests of his own, focused heavily on real estate development.

Though Kushner’s company is focused primarily on development in New York and New Jersey, it has often relied on foreign investment, and its earnings could be influenced by Trump administration trade and foreign relations policies.

Kushner’s lawyer, WilmerHale partner Jamie Gorelick, said Saturday that Kushner would recuse himself from matters that would have a direct impact on his remaining financial interests and abide by other federal ethics rules.

A federal anti-nepotism statute enacted in 1967 could also complicate the fate of the couple, who recently purchased a house in Washington. The law, which came about after President John F. Kennedy named his brother as attorney general, forbids public officials from hiring family members in agencies or offices they oversee.

There’s some disagreement among lawyers as to whether appointments to White House positions are exempt — Hillary Clinton’s role in the health-care reform proposal during her husband’s presidency is cited by those who take that view. Gorelick declined to comment on that matter.

But both Eisen and Painter say they counseled their respective presidents to avoid appointing relatives to administration positions. Painter argued that the ideal solution — if Trump wants to put his daughter and son-in-law in positions of influence — would be to ask Congress to amend the anti-nepotism law and give them formal roles.

Lewandowski remains in regular touch with the president-elect and is expected to continue to do so when Trump enters the Oval Office.

There is a long tradition in Washington of lobbyists trading on their access to powerful figures, but ethics experts were taken aback by how bluntly Lewandowski pitched his new lobbying shop. A news release issued by the firm, Avenue Strategies, touted its location “just a block from the White House” on Pennsylvania Avenue and quoted Lewandowski saying, “I will always be President-elect Trump’s biggest supporter.”

“We’ve been overly desensitized to shock, but we should be shocked,” Eisen said.

“How did Trump not repudiate that announcement?” Eisen asked. “I think he should repudiate it. I doubt he will.”

Chico Harlan contributed to this report.