The Trump administration has struggled with ethics vetting for Cabinet nominees and faced criticism for the president's decision to remain invested in his business empire. When Jared Kushner, President Donald Trump's son-in-law, prepared to enter the White House, however, the administration sought to do it by the book.
That is the picture established by new emails, obtained by MSNBC, showing how Kushner's lawyers worked on a divestment plan to avoid conflicts by conferring with the Office of Government Ethics. That is the same office that Trump aides iced out during the transition period and that has clashed with the president over his decision not to divest from the Trump Organization.
The emails indicate a flurry of preparation in late December and January — before Kushner was appointed senior White House adviser and while questions still swirled about whether a federal anti-nepotism law would bar him from serving. (The Justice Department stated that a loophole allowed him to serve as an adviser.) Kushner's lawyers, including former Clinton administration official Jamie Gorelick, consulted the ethics office on how to create a "conservative" and "workable" approach to minimize potential conflicts.
His team also warned the ethics office about a New York Times report on Kushner's meeting with Chinese investors after the election, proposing that their ethics plan would "mitigate sources of conflict," an apparent reference to the article.
Walter Shaub, the ethics office director who publicly criticized Trump and drew the ire of house Republicans, appeared heartened by the plans submitted by Kushner's team.
It is a marked contrast from his dealings with the Trump transition team about Cabinet nominees, where private emails show him lamenting that communication had "broken down" and the transition team's neglect of ethics vetting was "unprecedented."
"Ethics issues arise unexpectedly and they don't come with the label 'Caution! I'm an ethics issue.'"
With Kushner, the ethics office was engaged, collaborating on statements to the press, reviewing paperwork showing his "100% divestment" from several businesses, and providing extra advice beyond the letter of the law.
"Ethics issues arise unexpectedly," Shaub wrote Kushner's team, "and they don't come with the label 'Caution! I'm an ethics issue.'"
Citing the "fast-paced work environment" of the White House, Shaub suggested new ethics dilemmas can be hard to tackle if appointees don't meet the "attention span of a White House Counsel's office with a thousand other things to do."
To that end, he advised that Kushner's lawyers put him "two steps back from the line between what is permissible and what is not," which "will protect" him better than getting close to the line.
"The process was good here," said Norm Eisen, an ethics expert who is suing the Trump administration.
Eisen reviewed the emails, which were obtained through a Freedom of Information request from MSNBC and The James Madison Project, represented by the law office of Mark S. Zaid.
"While there are substantial redactions, it appears that Mr. Kushner and his wife, Ivanka Trump, had holdings that created the conflicts for Mr. Kushner in doing his job," said Eisen, a former Obama official, noting that Ivanka Trump's holdings are "imputed to him under federal law."
"They have divested themselves of those holdings," Eisen said, a "sensible" approach.
Kathleen Clark, an ethics expert at Washington University Law School, agreed there was a "striking contrast" between the approach of Kushner and other Trump officials.
"Although the Trump transition team apparently was not particularly cooperative with the Office of Government Ethics," she said, "Kushner and his lawyers seem to have taken a different approach."
Clark noted that Kushner might have faced an "uphill battle" on the anti-nepotism law, which bans family members from most federal jobs.
"I think that Kushner's lawyers may have settled on a strategy where they wanted to reassure the government that they would put out any and all fires in connection with financial conflicts," she said, building credibility "for getting a favorable Justice Department opinion on the anti-nepotism statute."
"Instead of fighting on two fronts," she suggested, "they only had to fight on one."
Eisen also emphasized that Kushner's effort is different than that of his boss and father-in-law.
"The member of this administration with the most profound conflicts did neither of the two proper and smart things his son-in-law did," Eisen said, arguing that by maintaining his business holdings, the president is violating a bipartisan tradition and the Constitution.
The administration argues that its conflicts plan for the president avoids any legal violations, and donates foreign government profits to the U.S. Treasury in an abundance of caution.
"It is shocking that the father-in-law did not choose to follow his son in law's example," Eisen added, "now the courts will have their say."