“We haven’t see a daughter in presidential history playing this kind of role before,” Katherine Jellison, an expert in first lady studies at Ohio University, told TPM in a Wednesday interview.
What role Trump’s daughter could legally play in the White House, if she may play one at all, hinges on how one reads a 1967 federal anti-nepotism statute holding that elected officials, including the president, cannot “appoint, employ, promote, or advance” a relative to an “executive agency.”
Questions linger about whether the statute applies to White House positions, potentially opening the door for Ivanka Trump to serve in an official advisory role. The President-elect has signaled that he’d like his daughter to focus on “women’s issues,” like child care policy, and his son-in-law to help negotiate the Israeli-Palestinian conflict.
Ethics experts say interpreting the statute as allowing relatives to serve in the White House disregards the spirit of the law and leaves serious conflicts of interest unresolved.
“We would certainly argue that the nepotism statute clearly ought to apply to White House jobs,” Noah Bookbinder, executive director of the Citizens for Responsibility and Ethics in Washington, told TPM.
“One of the precipitating factors for it was John F. Kennedy appointing his brother as attorney general. So that was not a White House appointment, but the concern was about a president bringing a relative in to essentially work for them,” he added.
During the campaign, Trump’s adult children played key roles helping to shape policy proposals, travel plans and personnel decisions. The President-elect’s reliance on their advice also violates the spirit of the anti-nepotism law, according to Bookbinder.
“There are a lot of people who have real qualifications, experience and expertise who can be and hopefully will be advisors to the president," he said. "But if he’s ignoring them in favor of people who he trusts more because they’re family, that’s a problem in terms of him making the best decisions for the American people."
Payment is another concern. The anti-nepotism statue forbids elected officials’ relatives from receiving salaries. Even if Trump's daughter chose to forgo a salary, Scott Amey, general counsel for the Project on Government Oversight, said she would “violate the Antideficiency Act, which essentially says you can’t have volunteers work for the federal government.”
“She could be like the $1 employees that get some kind of minimal pay,” Amey expanded. “But this all still leaves aside the conflicts of interest with the family business. It actually raises even bigger conflicts of interest because now you’d have multiple people working inside the administration that also have an ownership interest in the family business, who are in contact with the family members who are still operating that business.”
The New York Times reported last week that Donald Trump planned to keep a stake in his business as president and that Ivanka Trump would take a leave of absence from the Trump Organization. Two people briefed on her plans told the Times that she was also assessing how to remove herself from her apparel and licensing brands.
Yet even if she disentangles herself from her personal brands, or tries to put them in a genuine blind trust operated by an independent manager, she will face the same ethical conflicts as her father in regards to the family business that she has helped run for her entire adult life.
The Ivanka Trump Collection, Trump's transition team, and a Trump spokeswoman did not respond Wednesday to TPM’s requests for comment.
Trump told Fox News on Sunday that his team was currently looking into whether his daughter could be involved in his administration “from a legal standpoint.”
Newt Gingrich, an executive committee vice chairman on Trump’s transition team, had previously suggested Kushner could get a “waiver” to the anti-nepotism law in order to work for his father-in-law. Ethics experts doubted such a waiver would be feasible or that Ivanka Trump could seek such a waiver.
Amey noted that speculating Kushner could get a waiver to work in the White House suggests Gingrich believes the anti-nepotism law does in fact apply to jobs in the West Wing, not just federal agencies.
Bookbinder said the possibility for a waiver appears "extremely limited," pointing to a provision in the law for temporary employment of “individuals whose employment would otherwise be prohibited” in the event of “emergencies resulting from a natural disaster or similar unforeseen event.”
For legal precedent, Trump allies could also point to Hillary Clinton’s involvement in health care policy during her husband’s administration. In 1993, the U.S. Court of Appeals for the District of Columbia Circuit upheld Bill Clinton’s decision to appoint his wife to lead his health care task force.
But the court's decision explicitly brought up the historical, unique role that the first lady plays in the White House. Unlike first children, first ladies receive West Wing offices and full-time staff. They are expected to meet with visiting foreign dignitaries, keep busy calendars and work on policy issues of their choosing.
Ivanka Trump has already taken on many of these duties, sitting in on a meeting with Japanese Prime Minister Shinzo Abe and helping to shape her father’s maternity leave plan. Meanwhile, Trump’s wife, Melania, plans to stay in New York City for at least part of her husband's first year in office so that her son Barron can finish the school year.
With the last-minute postponement of a planned Thursday press conference to address how he would disentangle himself from the family business, until January, all we can do is guess at President-elect’s plans for his eldest daughter.