by Dylan Giles
President Trump’s family appointments were not always legal; in fact, before January 20, 2017, the Justice Department found it unlawful for presidents to appoint family members to positions or commissions in the White House. The White Houses of Nixon, Carter, Reagan, and Obama all tried in various capacities, and were all rejected. But in January this year, Deputy Assistant Attorney General Daniel Koffsky overruled these memos, arguing that the statute Justice relied upon was not meant to apply to the president. Even considering this memo, the appointment of Jared Kushner to senior advisor raises ethical questions that should ultimately lead to his resignation or dismissal.
To sum the legal conclusion reached by Koffsky, the memo looks at the anti-nepotism law (section 3110 of title 5, U.S. Code) that restricted previous presidents. He argues that the interpretation is faulty because it arose from a solitary testimony that relied upon language in a draft of the bill, and not the final language. Moreover, section 105 of US Code 3 grants the President specific hiring power that Koffsky concludes overrules testimony relying upon a draft version of a bill. Finally, he notes that Congress “has not blocked, and most likely could not block, the President from seeking advice from family members in their personal capacities.” If the President intends to ask for a relative’s advice anyway, it is better to simply add the relative as an advisor, thereby conferring the responsibilities and restrictions that fall upon that role.
Logically, this reasoning makes sense. Perhaps, as Koffsky determined, the previous counsels to the President were too quick to deny a legitimate presidential power. Thus, perhaps legally, President Trump is allowed to make family appointments.
But even if Trump can do this, he has made at least one hire (and likely more) that undermines the integrity of the White House, due to Kushner’s multiple conflicts of interest. This hire was a mistake not because of now-defunct legal reasoning, but because his role raises a different set of ethical concerns.
Jared Kushner is too ensnared in various business ties to serve in the White House. He and Ivanka Trump are still benefitting from their business empire as of March. Section 208 of U.S. Code 18 delineates that a government employee cannot serve a part in a process in which they have a financial interest. As Kushner still benefits from “a sprawling business empire” with many unnamed investors, the scope of his conflicts of interest is unknown. With this fact alone, he should be disqualified. Larry Noble, a former general counsel and chief ethics officer for the Federal Election Commission, told the New York Times that, given Kushner’s broad business portfolio and high political profile, “it’s hard to see how he will recuse himself from everything that may impact his financial interest.” Noble also expressed his concern that Kushner’s filings do not indicate his business partners, who “may also have interests that will be affected by how he advises the government.” This interview was from before the Wall Street journal discovered that Kushner failed to disclose several business ties and that he has $1 billion in loans. The list of Kushner’s conflicts of interest is expanding as we probe further, raising further questions about his ability to make unbiased decisions in the White House.
But it is not just his business ties that leave him open to conflict. His connections to Russia are at best shady and at worst illegal. He was present for the infamous June 9, 2016 meeting orchestrated by Donald Trump, Jr. for a promise of damaging Clinton information. He spoke with Sergey Kislyak about establishing a back channel for the Trump transition team and Russia. These are only the publicly known meetings; former FBI Director Robert Mueller may reveal more information as he continues to investigate the Trump administration’s connections to Russia. Through turning up more meetings, Mueller’s investigation would further emphasize the role Kushner played in possible Russian collusion. Even on the off-chance that President Trump himself was not involved, at the least Kushner is unfit to serve. He has demonstrated a Russian bias that would be anti-American, given Putin’s track record with dissent, and the current political landscape in Russia. Kushner’s decisions would be colored by this pro-Russian bias, a bias that may show up in meetings, secret promises, and the like.
Jared Kushner represents the nexus of issues that arise with Trump’s hires and Trump’s connections with Russia. Even if his position is legal, he should not be in the White House—period. Even Trump’s lawyers wrote memos suggesting that Kushner, for all his connections, resign. The only person that doesn’t seem to want Kushner gone is Trump himself.