Ivanka Trump's new White House position could be an ethical minefield
First daughter Ivanka Trump is set to assume a "voluntary" position in the White House described as her father's "eyes and ears," but experts say it could put the Trump administration in questionable ethical territory.
She will get an office in the West Wing, security clearance, and government communications devices, all while maintaining ownership of her eponymous fashion and jewelry brand.The latest move by Trump's White House has some legal ethics experts wondering whether the administration has breached boundaries that govern conduct in the country's highest office.
Ivanka Trump has long been a trusted adviser to her father, from her capacity as executive vice president of real-estate development and acquisition in the Trump Organization, to her past involvement in Trump's administration.
Before her arrival in the West Wing, Ivanka participated in a number of events with the president, including meetings with German Chancellor Angela Merkel, Canadian Prime Minister Justin Trudeau, and Japanese Prime Minister Shinzo Abe; trips with the president and his cabinet members; bill signings in the Oval Office; and meetings in the West Wing.
Trump's decision to further involve Ivanka in his inner circle, reported on Monday, is already raising red flags for scholars who have voiced concern over the first daughter's growing influence in her father's administration.
A gray area
The first and most frequently raised question is whether the Trump White House is flouting antinepotism laws by giving his daughter an office in the West Wing. The federal antinepotism statute prohibits public officials - including the president - from appointing relatives to positions in agencies over which they preside.Based on the text of the law, one might think it would be illegal for the president to give his daughter - and his son-in-law Jared Kushner - a position in the White House.
However, whether this administration has crossed a line is still a gray area that goes back to a 24-year-old judicial ruling involving Hillary Clinton when she was first lady. At the time, President Bill Clinton appointed Hillary to head up a healthcare task force. After a lawsuit brought by the Association of American Physicians and Surgeons against Hillary Clinton, two federal judges ruled that the federal antinepotism statute did not apply to the White House in the same way it did to other federal or executive agencies.
In other words, "it appears based on [the ruling] that certain positions in the White House may not be considered [executive-agency] positions" because the White House hasn't always been classified as an agency, "which is what the law was limited to," said Scott Amey, a lawyer at the Project on Government Oversight.
"We doubt that Congress intended to include the White House or the Executive Office of the President" within the constraints of the antinepotism law, Judge Laurence Silberman wrote in the 1993 ruling involving Hillary Clinton.
He added: "So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant ... The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government."
Though it's been disputed by legal scholars, the 1993 decision could have paved the way for Trump to appoint his son-in-law Jared Kushner to a White House position, and it may apply in Ivanka's situation as well, particularly because she will not be a paid government employee, and the judges' interpretation of the law stipulates that it may apply only to paid positions.
The Department of Justice's Office of Legal Counsel, which serves as an interpreter of federal law as it applies to the president, decided in 1972 that the antinepotism statute covered the White House in the same way as it did federal agencies, thereby preventing former President Richard Nixon from appointing a relative to his White House staff.
However, the day after Trump was sworn in, the OLC changed its decision to exclude White House staff from the statute, saying in a legal opinion that the president "enjoys an unusual degree of freedom" when selecting his staff, "which Congress found suitable to the demands of his office." It pointed to a separate 1995 ruling by the DC Circuit Court of Appeals, which said the antinepotism law's definition of an executive agency did not include the executive residence of the White House."It doesn't make much sense to exclude the White House from an antinepotism statute, but that's the law's interpretation as it stands," said Jon Michaels, an expert on the government, constitutional law, and national-security law at the UCLA School of Law. "Why exempt White House staff from the law when they're part of the federal government?"
He added that things are further complicated by the fact that Ivanka, unlike Kushner, is serving in a voluntary capacity and will not hold an official title, nor receive a salary.
But calling it "voluntary" could raise other ethical and legal questions about Ivanka's role. The Antideficiency Act is a 1982 law that prohibits federal employees from, among other things, accepting voluntary services rendered to the US, except in cases involving the safety of human life or the protection of property.
An 'open question'
Given that she will hold no official position or receive any compensation from the government, Ivanka's role may be classified as a voluntary service, Michaels said, and could be in violation of the Antideficiency Act, depending on how the law is interpreted.
"It's an open question on whether you can volunteer in the White House," Amey said. "Other agencies can't have volunteers, but again, it can get down to the definition of agency and some other terms."
Perhaps anticipating the questions that would be raised when she began working in the White House, Ivanka highlighted that she would "voluntarily comply" with ethics rules that would apply if she were a government employee.
Being a volunteer, however, may allow Ivanka to be exempt from the same ethical standards as White House staff. Paid employees are bound by a number of provisions involving ethics and transparency, as well as laws prohibiting conflicts of interest.
"By not becoming a government employee, it makes it easier to avoid nepotism laws and exist outside the scope of ethics laws. She can comply voluntarily, and she can theoretically decide not to if it suits her," Michaels said.The Department of Justice and the Office of Government Ethics should weigh in on whether or not Ivanka should serve in the West Wing and how best to manage any conflicts of interest regarding the law, Amey added.
The Associated Press reported that government watchdogs are already concerned about the "middle space" created by a voluntary position in the White House. To voice their concerns, they sent a letter to White House counsel Don McGahn, signed by two former White House lawyers and three transparency advocates, urging him to reconsider the appropriateness of Ivanka working in the White House. A spokeswoman said her role was approved by the White House counsel's office and that ethical conflict issues were "worked through" with the OGE.
"We addressed the appropriate way to approach the ethics issues deriving from Ivanka Trump's assets," Ivanka's attorney, Jamie Gorelick, added when Business Insider reached out to her.
A spokesperson for the OGE told Business Insider that "the OGE was essentially notified of the general contours of her plan." Notification, however, is not the same as formulating and approving a plan to avoid ethical issues.
'Toeing the line'
The first daughter's appointment to an informal position in her father's administration could be extending the executive branch's power beyond what Congress intended and threaten the separation-of-powers doctrine.
Congress maintains power of the purse, meaning that it provides funding for White House staff and appointments.
"If those funds are insufficient for what the president wants ... if he wants more power or more personnel, he has to ask Congress," Michaels said.
He added: "If you're soliciting or accepting voluntary services, you're empowering the executive branch beyond what the legislative branch intended."Of all the questions raised by Ivanka's appointment in the Trump administration, the most important one is, what exactly will Ivanka's responsibilities be?
We don't know much about Ivanka's role, other than that she will function as her father's "eyes and ears" in the White House.
"She is intending to spend some time on initiatives that she cares about, particularly with regard to women in the workplace," her lawyer, Jamie Gorelick, said in an NPR interview.
It is unclear to what capacity Ivanka will be involved in meetings with foreign diplomats and leaders, or how much she will be involved in policy debates and legislation. That ambiguity has some scholars concerned.
Ivanka's role is "officially unofficial" and breaches ethical standards while threatening national security, wrote Susan Hennessey and Klein Murillo in an op-ed for the Chicago Tribune. Murillo is a Lawfare contributor and editor of the Harvard Law Review, and Hennessey is a national-security fellow at the Brookings Institution and a former lawyer for the National Security Agency.
"My biggest concern is that this is yet another erosion of government ethics standards in this White House," Kathleen Clark, a law professor at Washington University in St Louis and a specialist in government ethics, told NPR.In the event that Ivanka's or anyone else's role in the White House is found to be unethical or a legal violation, it's unclear whether it would be prosecuted in the courts, which are typically more likely to hear cases in which there is evidence of damage or injury to one party. In a case like this, they may consider the issue a political conflict and decline to hold a hearing.
"A lot of these things are settled practice and no one has come close to toeing the line or breaking the law," Michaels said. "But now we're toeing the line pretty often, and all these legal questions that haven't been tested much are becoming important."