President-elect Jimmy Carter (right) chats with his advisor of long standing, Atlanta lawyer Charles Kirbo, on Dec. 7, 1976. | AP Carter-era ethics rulings loom over Trump kids According to the Justice Department, it's up to the president to make sure anyone acting like an appointee actually takes an oath of office.

President Donald Trump's daughter Ivanka is getting a West Wing office and a security clearance – both key trappings of an official White House job.

But she's moving in without being sworn into a formal role, despite Justice Department legal opinions that urge the president to make sure that individuals engaged in government work hold some type of official federal post, in part to guarantee that they are clearly subject to nepotism and conflict-of-interest rules.


The Justice Department has held the same position for decades, and reiterated it in a highly-publicized January opinion blessing Ivanka Trump's husband, Jared Kushner, taking on an official role as a senior adviser to his father-in law. "A President wanting a relative’s advice on governmental matters...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," Deputy Assistant Attorney General Daniel Koffsky wrote in the Kushner opinion.

Koffsky also pointed to and appeared to reaffirm a 1977 Justice Department opinion issued to President Jimmy Carter's White House that a longtime adviser to Carter who was holding meetings and coordinating White House work should be given an official post as either a part-time or full-time government employee. "In either case, he should be formally appointed and take an oath of office," Acting Assistant Attorney General John Harmon wrote in that opinion.

The issue could have ramifications well beyond President Trump's family, touching a number of the people the president has turned to for advice on issues ranging from deregulation to infrastructure to antitrust policy.

When Trump took a jaunt to southern Virginia earlier this month to show off a new U.S. aircraft carrier, he brought along a billionaire private equity investor he considered inviting to oversee intelligence reforms, Stephen Feinberg. There's former New York Mayor Rudy Giuliani advising on cybersecurity and two prominent real estate industry players—Richard LeFrak and Steven Roth—working on an infrastructure plan. All may be reluctant to accept formal roles, which come with strict disclosure and ethics requirements.

Ivanka Trump said Monday through her lawyer, Jamie Gorelick, that she plans to voluntarily comply with rules governing conflict of interest and impartiality of government officials, but not assume an official post.

However, ethics experts said that arrangement still falls short of the existing legal opinion, as well as years of precedent.

"What they're trying to do is install her in the White House while not giving the public assurance that she will be bound by the same standards as any other employee of the White House... It is inconsistent with this 1977 Justice Department opinion," said Kathleen Clark, a law professor at Washington University in St. Louis. "It sounds like they want her to be free to violate the ethics standards with impunity. Making promises about your future conduct is not how we set up ethics standards."

Former George W. Bush ethics lawyer Richard Painter said he believes Ivanka Trump already meets the definition of a White House employee in the legal guidance because of the way she has been regularly turning up at official meetings, including those with foreign leaders like German Chancellor Angela Merkel.

"I think she is an employee based on all the evidence," said Painter, now a law professor at the University of Minnesota and co-chairman of Citizens for Responsibility and Ethics in Washington. He added: "I think the White House is doing her a great disservice by fudging around on that."

Longtime Washington lawyers say it will be challenge for the White House to find a way to to fulfill Trump's desire to regularly tap his wealthy friends for help without running afoul of laws, rules and traditions constraining those relationships.

"It's a delicate area to be sure," said former House counsel Stan Brand. "You could become a de facto employee if you satisfy those criteria.....It's one thing to have an informal, advisory relationship with the president and it's another thing if the president delegates specific responsibilities to someone and he carries them out under the mantle of the United States, convening meetings and directing other people."

Trump's team has been aware of the tension since before Inauguration Day.

In a December press release, the transition team announced that longtime Trump friend and billionaire investor Carl Icahn would serve as "special advisor to the President on issues relating to regulatory reform." The release—heavy on Icahn's biography and light on what precisely he would do in the new post—concluded with what sounded like a lawyer-written disclaimer: "Carl Icahn will be advising the President in his individual capacity and will not be serving as a federal employee or a Special Government Employee and will not have any specific duties."

A White House spokeswoman confirmed earlier this month that the Trump team is alert to the Carter-era opinion, which holds that someone "coordinating the Administration's activities in [a] particular area" should be made an official employee.

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"We have been well aware of this guidance since before the Inauguration and intend to ensure that our interaction with Mr. Icahn does not trigger 'Special Government Employee' status," said White House spokeswoman Kelly Love.

Icahn has said he sees no conflict. He contends it's obvious Trump needs to draw on the expertise of people who have experience in the business world. "It's almost like saying you shouldn't listen to [JP Morgan Chase CEO] Jamie Dimon or [Bank of America CEO] Brian Moynihan about banking regulation because they have vested interests in options on the banks," Icahn told CNBC in December. "I mean it's sort of a crazy issue, I think...I'm not making any policy."

When the 14-page legal memo approving Kushner's White House job was released in January, many saw it as a generous welcome gift for the new president, but the less-noticed mention of informal advisers—a warning contained in part in a footnote—seems to have served as a kind of brush-back pitch for the real-estate-mogul-turned-commander-in-chief.

The footnote points to the earlier opinion, issued about a month after President Jimmy Carter was sworn in. The legal analysis concluded that one of Carter's top advisers who lacked any formal title or position had effectively converted himself into a government official by issuing demands to the federal government bureaucracy and overseeing policy review meetings for the new administration.

The Carter adviser, mysteriously referred to as "Mr. A" in the 1977 opinion, had long spoken with Carter "almost daily" to provide a range of advice. But the Justice memorandum indicates that the Carter associate's role changed as he began to coordinate the administration's response to a "current social issue."

"Mr. A...seems to have departed from his usual role as an informal adviser to the President in connection with his recent work on a current social issue," Harmon wrote. "Mr. A has called and chaired a number of meetings that were attended by employees of various agencies, in relation to this work, and he has assumed considerable responsibility for coordinating the Administration's activities in that particular area."

Harmon concluded that the Carter adviser should be appointed as either a temporary, "special" government employee or a regular one, subject to all the attendant ethics rules and limits. "He should be formally appointed and take an oath of office," the Justice Department urged.

A former Carter aide told POLITICO that the 1977 opinion discusses the role of longtime Carter lawyer and friend, Charles Kirbo. Described as Carter's "one-man kitchen Cabinet" by the New York Times, Kirbo helped manage Carter's peanut farm and warehouse while the Georgia farmer was in the White House.

"He was one of the president's chief confidants," said Stu Eizenstat, who served as Carter's domestic policy chief. "He would talk to the president on a very regular basis. He would sit in on meetings."

Eizenstat said the social issue was a perceived crisis in the pension system, which contributed to a massive coal-miners strike at the time. Kirbo was offered the chairmanship of the commission, but White House advisers believed he might be reluctant to disclose all his finances, records from the Carter Library show.

After a protracted delay, former Xerox CEO and DNC Treasurer Peter McColough took the pensions' board post instead. Kirbo died in 1996 at age 79.

Harmon, the author of that Carter-era opinion told POLITICO earlier this year that he still believes the central holding is good law.

"You can't employ [informal adviser status] as an end-run," he said. "That can't be your purpose, to avoid the conflict-of-interest provisions, to set this up as a subterfuge that allows you to get around the law."

Annie Karni contributed to this report.