Little Arabella is as poised and beautiful as her mom. But the rest of this whole situation is a giant festival of yuck.
First off, even people who couldn’t tell a trademark from a postmark can probably sense something amiss here. I mean Ivanka works in the West Wing. She’s involved in everything. And last I checked, “trade with China” is a huge part of “everything.” It’s very sweet that her lawyer, Jamie Gorelick, has assured everyone that, “Ivanka will not weigh in on business strategy, marketing issues, or the commercial terms of agreements,” and that Ivanka and Jared will be sure to “steer clear of specific areas that could impact her business, or be seen as conflicts of interest.” The only problem is that Gorelick has also been clear that from where she sits, Ivanka is “under no legal obligation” to step away from all things trade and China.
Quite a few lawyers, including Richard W. Painter, who served as chief White House ethics lawyer under President George W. Bush, seem to disagree. Painter told the Associated Press that Ivanka Trump should “put the business on hold and stop trying to get trademarks while you’re in government.” That would certainly be the more conservative way to go, ethically-speaking. But Ivanka’s lawyer has only committed to a recusal from “conversations about duties on clothing imported from China,” and to a “case-by-case” assessment of what Ivanka will and won’t do.
Whether or not there is a specific law prohibiting Ivanka’s dual role as West Winger and Chinapreneur, it is indisputable that the Trump presidency has positively impacted Ivanka’s fashion empire. Sales have been reported of 771 percent in February 2017 over the same month last year, after White House counselor Kellyanne Conway inappropriately told Fox viewers to “Go buy Ivanka’s stuff.” The bump doesn’t seem to be short-lived either. March sales are reported up 262 percent from last year.
There’s no indication of any sinister timing regarding the Trademark-A-Lago extravaganza, but the coincidence underscores an uncomfortable truth: those running our government are profiting from doing so. Whether that profit rises to the level of true, criminal “conflict of interest” is a matter for more specific inquiry. For now, one thing is clear: the dusty old Emoluments Clause is getting the 2017 award for “Best Newcomer.”
The “foreign emoluments clause” has been a topic of much debate since President Trump took office. The clause itself, contained in Article I of the Constitution, states:
“No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
Very few lawyers or judges are Emoluments Clause experts, because there hasn’t been any litigation on this subject. Ever. It’s certainly worth pointing out that one reason “emoluments” weren’t on the tip of the average American’s tongue until now is that presidents pretty much always divested themselves of business entanglements prior to taking the oath of office. The situation of a president’s daughter-turned-executive-staffer who happens to be a fashion maven whose products are hawked in the press room is, to say the least, unprecedented. I’ll say this, though, by way of arms-length analogy. Former President Barack Obama sought permission from the Office of Legal Ethics (“OLE”) to accept the $1.4 million award as part of the Nobel Peace Prize. In 2009, the OLE released a memorandum specifically opining that Obama’s acceptance of the prize did not violate the Emoluments Clause, because the prize had been awarded by a private institution, and not by a foreign government. President Obama accepted the award and donated the proceeds to a number of charities, probably because he felt it was important to avoid even the appearance of impropriety. By contrast, Ivanka Trump’s acquiring a monopoly for eponymous lines of wristlets while dining with the leader of the country providing that monopoly has an appearance that may be more fashionable, but is also, way closer to an emoluments violation.
Editor’s Note: This piece has been updated to include additional legal analysis.