White House Ethics Loophole for Ivanka ‘Doesn’t Work,’ Say Watchdogs
That’s the message from government watchdogs Citizens for Responsibility and Ethics in Washington (CREW), Democracy 21, and the Campaign Legal Center, in a letter (pdf) sent Friday to White House counsel Don McGahn.
The ethics advocates express “deep concern about the highly unusual and inappropriate arrangement that is being proposed for Ivanka Trump, the President’s daughter, to play a formalized role in the White House without being required to comply with the ethics and disclosure requirements that apply to White House employees,” arguing that the “arrangement appears designed to allow Ms. Trump to avoid the ethics, conflict-of-interest, and other rules that apply to White House employees.”
The letter, signed by former White House legal counsels Norm Eisen and Richard Painter, goes on to describe the myriad ethics problems with Ivanka’s role:
As described in published reports, Ms. Trump in her role as White House adviser is assuming many of the indicia of a White House employee—she will have a West Wing office; she will receive a security clearance; she will be issued government communications devices and, according to these reports, she will participate in high-level White House meetings on a regular basis and provide advice to the President on a broad range of issues.
Under her arrangement, however, as the New York Times reports, she will “not hold a formal job at the White House and therefore is not likely to be considered a federal employee under the ethics rules, which prohibit government workers from participating in matters that can enrich their personal business interests…”
“The basic problem in the proposed relationship is that it appears to be trying to create a middle space that does not exist,” the letter explains. “On the one hand Ms. Trump’s position will provide her with the privileges and opportunities for public service that attach to being a White House employee. On the other hand, she remains the owner of a private business who is free from the ethics and conflicts rules that apply to White House employees.”
Citing a prior decision from the Justice Department’s Office of Legal Counsel (OLC) regarding President Donald Trump’s appointment of his son-in-law, Ivanka’s husband Jared Kushner, to an advisor role, the groups say that the president “cannot have it both ways” when it comes to giving family members prominent roles in his staff.
The letter quotes the OLC decision on the matter:
A President wanting a relative’s advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany formal White House positions; or to appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest.
“That is the core problem with the proposed arrangement for Ms. Trump,” the letter notes. “[S]he is seeking the ‘status’ of assuming what is in fact, if not in name, a ‘formal White House position’ (one that includes a West Wing office, a security clearance, and an issues portfolio), but at the same time the arrangement avoids the ‘set of legal restrictions’ that accompany such positions.”
The letter continues:
Published reports quote Ms. Trump’s attorney as saying that her job “will be to serve as the president’s ‘eyes and ears’ while providing broad-ranging advice, not just limited to women’s empowerment issues.” The description of what will be provided to Ms. Trump in her White House role, combined with the broad portfolio she will have, makes her a government employee under the applicable standards.
The watchdogs also address Ivanka’s claim that she will “voluntarily” follow ethics rules for White House employees. “If voluntary compliance with the law was sufficient to safeguard the public interest embodied in the ethics and conflicts rules, then all federal employees could be similarly held to a voluntary standard,” they write. “But of course that is not, and should not be, the law.”
“In sum,” the groups conclude, “under the proposed arrangement for Ms. Trump, she will not be a White House employee and will continue to own businesses that emphasize her brand name. As such, she will not make the commitment set forth in the oath of office that White House employees take and will remain unbound by government ethics and conflicts of interest rules, except to the extent that Ms. Trump voluntarily chooses to comply with them. This arrangement does not work and needs to be revised.”