If you need confirmation that much of the American establishment is lining up behind the Trump Administration, and is purposely overlooking the break it represents with democratic norms, you should read a story in Tuesday's Times about the appointment of Jared Kushner, Donald Trump's son-in-law, as a senior White House adviser.The appointment itself wasn't a surprise—since the election, sources inside the Trump transition have been saying that Trump wanted Kushner, who advised him throughout the campaign, by his side in the White House. The eye-catching bits of the Times article were twofold. First, there were the questionable steps that Kushner is taking to comply with federal conflict-of-interest statutes, as well as an anti-nepotism law that, on its face, appears to bar him from working in the Administration. Then there was the identity of Kushner’s lawyer, who is making the case that all is above board: Jamie S. Gorelick, a former deputy attorney general in the Clinton Administration. "He will be treated as any other person entering public service,” Gorelick, who is now a partner at the law firm WilmerHale, said.But "any other person entering public service" doesn't get an office in the West Wing of the White House while sharing a home with the President's daughter. And "any other person entering public service" hasn't spent the past few years running a New York-based real-estate empire that has raised bags of money from rich foreigners, some of whom want things from the U.S. government.A federal anti-nepotism statute from 1967 states that no federal official can appoint a relative to “a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control.” In claiming that this language doesn't apply to Kushner, Gorelick, a former president of the District of Columbia Bar who served as one of BP's top outside counsels following the Deepwater Horizon oil spill, in 2010, is effectively saying that the White House isn't a federal agency, and that Congress doesn't have the power to abridge the President's constitutional right to pick his own staff. In a 1993 case stemming from Hillary Clinton's appointment to run a federal task force on health-care reform, a federal judge provided some support for this argument.But as Susan Hennessey, the managing editor of the influential Lawfare blog, pointed out over the weekend, "This is not a matter of settled law." The judge in the case said merely that the 1967 statute "perhaps" didn't bar a spouse from holding a role like the one that Hillary Clinton took up. Other top lawyers, including Richard Painter and Norman Eisen, who were senior ethics lawyers in the Administrations of George W. Bush and Barack Obama, respectively, believe that the anti-nepotism statute applies to Kushner. Gorelick said that the Trump Administration would seek an advisory opinion from lawyers at the Justice Department. Of course, by the time such an opinion is issued, Trump's close ally Jeff Sessions will likely be running the Department.In any case, the federal conflict-of-interest statutes, which aren't part of the 1967 legislation, clearly do apply to Kushner. To comply with them, he has announced that he will resign as chief executive of his family’s real-estate firm, Kushner Companies, and divest himself of “substantial assets,” including his ownership stake in an office tower at 666 Fifth Avenue and in the New York Observer.But this will be a very limited form of divestment. Gorelick told the Times that, rather than selling his assets and placing the proceeds in an independently managed trust, which is what Rex Tillerson, the former ExxonMobil C.E.O. who has been nominated as Secretary of State, has pledged to do, Kushner will transfer ownership in some of his assets—not all of them—to his brother and to a trust overseen by his mother. Meanwhile, Ivanka Trump, Kushner's wife, will keep her businesses, and Kushner will pledge to recuse himself from any government matters that relate to them, or to his own remaining assets.This arrangement, which Gorelick has been discussing with the Office of Government Ethics, certainly jibes with an informative new New York magazine profile, which reported that Kushner's motto is "family first." Perhaps, as Painter indicated to the Times, having Kushner in an official role in the White House is preferable to the alternative, in which Kushner acts as informal adviser to his father-in-law, wielding great power but not being subjected to the conflict-of-interest laws at all. Indeed, following the example of New York Mayor Bill de Blasio, some people may welcome Kushner's appointment and hail him as a calming influence on Donald Trump. (On Monday, de Blasio said that he had known Kushner for years and that he considers him a “very reasonable
person.”)If you step back a bit, however, it's clear that Kushner's divestment strategy, far from quelling concerns, will only accentuate the glaring potential for conflicts of interest at the heart of the Trump Administration. To borrow the words of the former chief counsel to Rand Paul's Presidential campaign, Matthew T. Sanderson, "It sounds like a shell game to me.”As high-profile New York developers, Trump and Kushner are like two peas in a pod. They both engage in large real-estate projects that are partially financed by foreign banks and overseas investors. A timely Times report published a few days ago detailed how, a week after the election, Kushner had a celebratory dinner with the chairman of Angbang Insurance Group, a big Chinese company that has close ties to the Chinese government and is mulling an investment in the Kushner-owned 666 Fifth Avenue. The New York profile, meanwhile, said that Kushner's companies have also raised tens of millions of dollars through a controversial federal program that offers green cards to foreign investors.With Trump and Kushner both working in the White House, and with their family businesses still substantially intact and operating normally, the temptations and opportunities for interested parties to curry favor with the new Administration will be many. Gorelick, having pocketed her hefty legal fees, will no longer be on hand to police them.How serious is the situation? The "deep entanglements of Trump’s children and Jared Kushner with undisclosed foreign financial investments elevates the issue to one of national security," Hennessey wrote. She went on, "The peril goes far beyond the scope of traditional ethics—inviting waste, fraud, and abuse—and represents a profound threat not only to our national security but to the basic legitimacy of our government."
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