Watchdog Groups Challenge White House Counsel Over Terms of Arrangement to Permit White House Role for Ivanka Trump
Democracy 21, joined by Citizens for Responsibility and Ethics in Government (CREW) and the Campaign Legal Center, sent a letter today to White House Counsel Donald McGahn, challenging the arrangement approved by the Counsel’s office regarding Ivanka Trump’s role in the White House.
The watchdog groups expressed “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.”
The letter called on Mr. McGahn to revise the arrangement with Ms. Trump to comply with previous opinions issued by the Justice Department’s Office of Legal Counsel and “to ensure that any potential conflicts of interest between Ms. Trump’s service in the White House and her ownership of her businesses are properly addressed.”
Signers of the letter included Norman Eisen, former White House ethics lawyer for President Obama, and Richard Painter, former White House ethics lawyer for President George W. Bush.
According to published reports, under the arrangement approved by the White House Counsel, Ms. Trump will have a West Wing office, receive a security clearance and government communications devices, regularly participate in high-level West Wing meetings, and provide advice to the President on a broad range of issues – many of the indicia of a White House employee.
But, nevertheless, Ms. Trump will not become a White House employee and will not take the oath of office required for White House employees.
The letter from watchdog groups stated:
This arrangement appears designed to allow Ms. Trump to avoid the ethics, conflict-of-interest and other rules that apply to White House employees.
As described by Politico, “In everything but name, Trump is settling in as what appears to be a full-time staffer in her father’s administration, with a broad and growing portfolio—except she is not being sworn in, will hold no official position and is not pocketing a salary, her attorney said.”
There are multiple problems with the arrangement that Ms. Trump has negotiated. But according to the report in Politico, a spokeswoman for Ms. Trump said “her role was signed off on by the White House counsel’s office. . . .”
The letter to Mr. McGahn continues:
It is hard to believe that the White House Counsel’s office has approved this arrangement, given previous opinions by the Department of Justice’s Office of Legal Counsel (OLC). If you have given approval to this arrangement, however, we urge you to reconsider your position in light of the issues discussed in this letter.
In an opinion issued by OLC regarding Jared Kushner, the spouse of Ms. Trump, OLC said that a President cannot have it both ways. The opinion stated:
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. In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office. Any appointment to the staff, however, carries with it a set of legal restrictions, by which Congress has regulated and fenced in the conduct of federal officials.
According to the letter from the watchdog groups:
That is the core problem with the proposed arrangement for Ms. Trump: she 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 says that “Ms. Trump is either a White House employee subject to the rules that apply to other White House employees or she is not entitled to the rights and opportunities for service that are available to White House employees.”
The letter also stated that Ms. Trump’s statement that she will voluntarily comply with the ethics rules does not solve the problems. The letter said:
Of course, voluntary compliance with the law is just that—voluntary. This means that Ms. Trump is free to comply or not, as she sees fit and with no legal sanctions for not complying. 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. But of course that is not, and should not be, the law. The fact that Ms. Trump is not accepting a salary does not change the need for mandatory compliance.
The letter concluded:
In sum, under the proposed arrangement for Ms. Trump, she will not be a White House employee and will continue to own businesses that emphasis 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.
Copies of the letter to Mr. McGahn were sent to Walter Shaub, head of the Office of Government Ethics, and to Chairman Jason Chaffetz and Ranking Democrat Elijah Cummings of the House Committee on Oversight and Government Reform with requests to examine this matter and take whatever steps may be approrpriate.
