Soon after Donald Trump became president, he began running into a whole set of rules about how government works, like demands that he divest assets or put them in a blind trust, and rules about whether he could hire family members for top jobs. For Trump, who had just won the election while disregarding most of the rules of political campaigning, these rules seemed antiquated at best and punitive at worst.
The Trump team treated these rules and norms as artifacts of a hidebound and ineffective Washington, obstacles that had kept qualified, inventive people from the business sector out of public service on mere technicalities. The president-elect also clearly viewed the hue and cry of ethics experts—from Norm Eisen and Richard Painter to Walter Shaub—as efforts to delegitimize his presidency.
What the last few weeks, and especially the last few days, have brought home is that the rules exist in part to protect the people who are supposed to follow them. Just like your elementary-school teacher told you not to run in the hallways not because she was a martinet but because you’re liable to trip and hurt yourself, ethics rules and norms can help an administration protect itself and the country. This week, the cases of White House senior adviser Jared Kushner and Secretary of Housing and Urban Development Ben Carson show what happens when they aren’t followed.
On Tuesday, Politico was the first to report that Kushner would be losing his clearance to view top-secret information. (He can still view information classified secret, a lower level.) Kushner, who is the president’s son-in-law, has been operating on an interim security clearance since Trump took office, with various issues preventing his obtaining a permanent clearance, including complicated business ties and incomplete early disclosures. CNN reported last week that Kushner was unlikely to receive a permanent clearance until Special Counsel Robert Mueller’s probe is complete, which is a matter of months if not years. In the aftermath of the Rob Porter fiasco, the White House is cracking down on interim clearances. Until he was forced to step down as staff secretary amid domestic-abuse allegations, Porter was operating on an interim clearance, even though the FBI had already informed the White House he would not be recommended for clearance.
The Kushner case showcases at least three examples of how deciding to ignore longstanding norms and rules has hurt the Trump White House.
The first is the norm against using interim security clearances indefinitely. It’s common for administrations to use interim clearances, especially early on—the system is notoriously slow, and a president needs staff to function. But the Kushner and Porter cases are unusual, in that in both cases the White House appears to have decided to treat interim clearances as a replacement for permanent clearances that wouldn’t be granted. The mishandling of Porter, including initially standing by him, and then offering an apparently untrue account of steps to get rid of him, was deeply damaging to the White House, and especially to Chief of Staff John Kelly. Indeed, Kelly seems to have been the prime advocate for new rules that scaled back Kushner’s clearance. By taking away his access, the White House is effectively acknowledging that someone who should not have been allowed to see top-secret information did so for more than a year. That’s disturbing as a matter of national security, and politically damaging too.
The second is the norm that people in the White House should divest themselves from business assets because of the potential for conflicts of interest. Trump himself set the standard, handing his business empire over to his sons, but falling short of the usual measure of selling off assets and placing the proceeds in a “blind trust,” which allows an official to keep assets, but also prevents him or her from knowing how they’re being managed, to avoid such considerations weighing on his political decisions. Trump not only didn’t do that; he embraced the conflicts of interest, staying at his resorts as president and offering fundraisers and more at his hotel in D.C.
Kushner, like his father-in-law the scion of a New York real-estate family, followed suit. Though he divested some assets, he retained many others, and his family continues to control the business. In spring of 2017, Kushner’s sister created a furor by dropping his name during a pitch meeting in China; he said at the time he had divested from the development in question, but actually retained some ties to it.
Why do these conflicts matter? It’s not just the danger that Kushner might enrich himself using his ties in government, though that’s a real issue. (Last year, the Office of Government Ethics recommended that Trump aide Kellyanne Conway be disciplined for using the White House to boost Ivanka Trump’s clothing line.) Tuesday night, The Washington Post added some details on why Kushner had been unable to get a permanent clearance:
Officials in at least four countries have privately discussed ways they can manipulate Jared Kushner, the president’s son-in-law and senior adviser, by taking advantage of his complex business arrangements, financial difficulties, and lack of foreign policy experience, according to current and former U.S. officials familiar with intelligence reports on the matter.
Among those nations discussing ways to influence Kushner to their advantage were the United Arab Emirates, China, Israel and Mexico, the current and former officials said.
Rules and norms about conflicts of interest exist because without them, they open the federal government up to manipulation—by domestic interests, and by foreign governments. The Post also reported that Kushner had flouted procedures for ensuring the National Security Council was informed about interactions with foreign officials.
The third norm is against hiring relatives to work in the White House. After John F. Kennedy appointed his brother Robert as attorney general, Congress established laws preventing the president from appointing relatives to certain posts. In the case of Kushner (and his wife, Ivanka Trump), the Trump team circumvented the rules in two ways. First, it pointed to a precedent set by Hillary Clinton that the White House was exempt from the rules, and second, it announced that Kushner would work without pay.
But the question of Kushner’s clearance has pitted him against Kelly, which creates a tense dilemma for Trump. The well-sourced Jonathan Swan reported that Donald Trump Jr. is angry at Kelly for hanging his brother-in-law out to dry, and quoted one official as saying, “Javanka and Kelly are locked in a death match. Two enter. Only one survives.” It’s a battle that pits two aides with little political experience and no accomplishments, one of whom faces serious legal risk from Mueller’s probe, against a chief of staff whose own limitations have become clear, but who has established greater discipline in Trump’s White House than anyone else. For most presidents, this would be a no-brainer: You keep Kelly and let Kushner go. But that’s harder to do when Kushner is your son-in-law. Once again: The rules are there to protect you, if you’re willing to let them.
A miniature version of this drama is playing out at the Department of Housing and Urban Development. Secretary Ben Carson, who before accepting a nomination said he was unqualified because of lack of experience with housing, relied on his wife, Candy, and son, Ben Jr., as top advisers, upsetting HUD employees. As The Washington Post reported in January, he was warned by HUD officials about letting Ben Jr. organize an event in Baltimore but did it anyway. On Tuesday, The Guardian reported on a lawsuit from a career staffer who alleges she was demoted after refusing to break the law by approving an expensive redecoration of Carson’s office. Later that day, The New York Times added on, noting that Carson spent $31,000 on a dining set. The enormous spending comes as HUD slashes budgets; Carson has also warned against public housing being too nice. These are all embarrassing stories, which make Carson and the administration look like they are living lavishly on the taxpayer dime at best, and like callous plutocrats at worst. Yet every one of these errors could have been avoided by simply sticking to the rules.
There is an irony to how this is shaking out. The Trump administration decided early on that the rules did not, or ought not to, apply to them, and that the rules were punitive. Slowly, it’s becoming clear that even if you don’t obey the rules, the imperatives that created them don’t go away—and if you ignore those, you may indeed be punished for it.