Wendy R. Sherman

Opinion contributor

Throughout recent history, the Justice Department, the White House Office of Legal Counsel and even the Solicitor General’s office have opined on whether family members of presidents can be appointed to commissions, take on policy leadership or hold formal roles in an administration. In 1967, six years after President Kennedy nominated his brother to be attorney general, the Federal Anti-Nepotism Statute became law to say that relatives of public officials who took such positions would have violated the law and thus not be entitled to pay.

During the Trump transition, it became apparent that both Jared Kushner and Ivanka Trump were going to work out of the White House. Lawyers argued that because neither would take pay, all was above board. Even if one accepts this questionable line of reasoning, deep concerns remain.

What are their qualifications for their assignments? Are they receiving other forms of compensation, if even indirectly, that negate the spirit and intent of the law? Are their roles funneling too much power directly through the White House, undermining the roles of relevant cabinet secretaries? And then, of course, does all of this mean that the interests of the Trump family are advanced at the expense of the interest of the America people?

Ivanka and Jared cross more lines than DMZ

The pair’s latest foray to the Group of 20 leading nations in Osaka, Japan and in the follow-on visit to the Republic of Korea and to the Demilitarized Zone, clearly show that Jared and Ivanka have crossed many lines when it comes to appropriate, ethical and effective stewardship of America’s national security interests.

Much of the media critique has centered on Ivanka, who sat in critical meetings, provided readouts to the press, and visibly tried to insert herself as an equal among international leaders. But to critique Ivanka alone is, indeed, sexist. Both she and Jared were in multiple meetings, and both followed the president’s steps into North Korea and into the closed-door meeting with Kim Jong-un. Ivanka became the media focus because she seemed to have stepped up in a space that had so far been reserved for Jared.

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Now we are faced with a less sexist but profound conflict of interest: Neither Jared nor Ivanka were elected, nominated or confirmed by the Senate for anything. Both seemingly successful business people, neither have had previous diplomatic or public service roles beyond perhaps chairing a family foundation or charity event. Jared initially, and now Ivanka in tandem, have been given enormous policy portfolios and appear unaccountable to Congress, cabinet officials or the public. Because they work from the White House, it is easy for the White House to invoke executive privilege, which means they never have to face Congress in the normal course of their work.

In Osaka, Jared and Ivanka appear to have supplanted spots at bilateral meetings originally intended for U.S. ambassadors, senior directors from the National Security Council, and regional assistant secretaries from the State Department (albeit many of them are, painfully, in an acting capacity). Recent reporting of debriefs from former Secretary of State Rex Tillerson to Congress show that Jared held foreign policy meetings with Tillerson counterparts without the secretary’s knowledge.

Speaking for America with no checks or net

Since there appears to be a lack of formal policy-making meetings, Jared and Ivanka are, in essence, operating without a net or any check on their work — making decisions and representing the views perhaps of the president, but without the benefit of experts or a decision-making process that creates consensus and ensures consistent implementation of presidential decisions.

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Perhaps the greatest concern about their roles, however, is the issue of compensation. Financial disclosures show that Jared and Ivanka last year earned over $80 million through their private businesses. No doubt, their prominence in meetings increases the worth of their holdings as interlocutors want to do business with players who hobnob with world leaders and operate as the Trump family business.

From the economic plan Jared presented in Bahrain for the Palestinians, to Ivanka’s work on women’s economic development, to President Donald Trump’s entreaties to dictators that he can build beautiful condos in their country and ensure great prosperity, Jared and Ivanka are positioning themselves to share in the real estate and economic ventures put into motion by this president. And even though they earn no salary, the concerns raised about the president’s conflicts of interest underthe emolument clause of the Constitution extend to Jared and Ivanka.

White House is not a Trump family business

Indeed, we are seeing the privatization and monetization of diplomacy. From Jared's embrace of Saudi Arabia in the wake of the brutal murder of Jamal Khashoggi because, as the president has said himself, they buy a lot of weapons from the United States, toIvanka continuing to win Chinese trademarks that pose conflicts of interest on policy and her own post-administration finances, everything seems to be about building platforms for their future business.

Every president wants to surround himself — and soon, one hopes, herself — with people who are trusted, smart and loyal. But those same advisers need to understand their lane and respect the value of those appointed and confirmed to do the teamwork for the elected president. Donald Trump ran his business as a family company with virtually no checks and balances and filled with litigation, bravado and bullying. Real estate deals may be amenable to such a transactional model, but ensuring our nation’s prosperity and national security will take more than three Trumps trying to do it all.

Wendy R. Sherman, a professor and the director of the Center for Public Leadership at Harvard Kennedy School, was undersecretary of State for political affairs from 2011-15 and led U.S. negotiations on the Iran nuclear deal. She is the author of “Not for the Faint of Heart: Lessons in Courage, Power and Persistence." Follow her on Twitter: @WendyRSherman.