At their core, ethics rules are national security rules. They are designed to guard against conflicts to reassure the public that individuals trusted with matters of immense national importance are guided only by the best interests of the country. But from the earliest days, President Trump and his children have violated these standards. The president’s questionable conflicts-mitigation strategy put his sons, Eric Trump and Donald Trump, Jr., at the helm of his business without removing his financial interest in the companies. One need only look at photos of the two seated in the front row at the White House announcement of Judge Neil Gorsuch’s nomination to the Supreme Court to grasp how insufficiently that separates the president from his business interests.
The two Trump family members with White House roles have likewise flouted ethical norms. Shortly after the election, Ivanka Trump drew criticism for participating in her father’s meeting with the Japanese prime minister while her own business was negotiating a licensing deal with a company owned by the Japanese government. She has since officially ceded daily management of her company to a top executive and placed its assets in a trust, but she retains sole ownership and details of the extent of her control are wanting. Ivanka Trump’s husband, Jared Kushner, now a senior adviser in the White House, was similarly criticized for a post-election meeting with Chinese nationals with whom he was negotiating a commercial joint venture on behalf of his own family’s business. Kushner has also taken steps to divest from that business by transferring assets to his mother and brother, a move some have likened to a meaningless “shell game.”
The undisclosed foreign financial entanglements of Trump’s children elevate the security implications. Before now, there’s been very little dispute that foreign money could pose a threat: The implications of overseas investments are so critical that there is an interagency committee tasked with reviewing the national security risks of transactions that could render control of a U.S. business to a foreign person. The potential compromises of foreign business relationships run both ways, and the Trumps’ myriad foreign financial relationships creates the risk that in matters of national security and foreign policy, their choices will be guided by what is best for their bank accounts, not the United States.
But Ivanka Trump’s new West Wing post doesn’t only bring more financial conflicts of interest into the White House; because she’s the president’s daughter, it also makes them worse. The inherently compromising loyalty of family relationships and the necessity of genuine expertise in senior government roles are why federal law prohibits nepotism — and why that law explicitly applies to the president. Trump appeared to recognize this when he repeatedly reassured the public that his children would not have any role in the government.
In the 50 years since enactment of the anti-nepotism law, presidents have generally avoided testing its limits. The day after Trump was sworn in, however, the Justice Department’s Office of Legal Counsel (OLC) determined that the statute does not apply to the president’s hiring of White House staff. This was an affirmative change of the office’s past analysis. In 1972, OLC determined that the law did apply to White House staff and would prevent President Richard Nixon from appointing a relative. A 1977 opinion likewise concluded that President Jimmy Carter could not legally appoint his son to an unpaid position in the White House.
The about-face of the January opinion may be legally defensible; it rests on a conflicting statute that grants broad presidential authority to staff the White House “without regard to any other provision of law.” But the issue here isn’t one of legal technicalities. OLC’s job is to offer counsel on bare legality stripped of policy prescription. We can’t expect it or the statutes it interprets to substitute for an administration with sound judgment.
The issues of legality and ethics reduce down to this: Ivanka Trump’s role in the administration is possibly, though not certainly, legal under federal anti-nepotism law. It is wrong as a matter of ethics, though, and it violates the tenets of good governance. And her undisclosed financial entanglements raise the specter of decisionmaking based on individual or financial gain, rather than in the national interest.
Some have suggested in her defense that Ivanka Trump is the functional first lady. The comparison is inapt, in addition to being an insult to both Ivanka’s intellect and the actual first lady, Melania Trump. First ladies’ financial interests are considered inseparable from the president’s own, and while they are exposed to classified information by virtue of being around the president, they have not typically used that access to play substantive policy roles on national security.
Ivanka Trump’s personal relationship to the president may compromise our national security in immediate and practical terms. If she gets a high-level security clearance, that will grant her access to the nation’s more sensitive and consequential secrets — a fact that highlights the risks of compromising financial relationships and lack of expertise. It would be astounding, however, if her background investigation failed to uncover a recent article detailing her involvement in a hotel deal in Azerbaijan that “appears to be a corrupt operation engineered by oligarch tied to Iran’s Revolutionary Guard.” No ordinary person would be granted a clearance before questions of business ties to sanctioned individuals or entities were fully resolved.
The president is empowered to ignore that kind of derogatory information on a background investigation. But to do so would be a grave breach his oath of office — an oath his daughter will not take in her officially unofficial role. So the American people will now see if Donald Trump really intends to treat Ivanka like any other staffer. Will he act in the best interest of the American people in assessing whether she has demonstrated the judgment and integrity expected of those entrusted with our nation’s secrets?
Blood is thicker than water. We must now wonder if the president’s commitment to his oath of office is stronger than his family loyalty.