Yeomans Work

It’s Risky to Hire the Kids

September 14, 2017

Recent reporting that Michael G. Flynn, the son of Trump’s short-tenured National Security Advisor, likely is a subject of Robert Mueller’s investigation highlighted again that running a political campaign or a country like a family business imports unique risks.

This is a lesson that Donald Trump also seems determined to teach us. Indeed, the kids (including kids-in-law) have long seemed to be the thread that Mueller and Congress will pull to unravel the Trump presidency.

The danger is that none of us is fully rational about our kids’ abilities or detached from their pain. An ignorant man, such as Trump, is particularly prone to assuming that a talented family member can handle any challenge. Jared Kushner – a man whose real life abilities feature inheriting money, buying a small newspaper, and accumulating crushing debt to pay too much for real estate while wearing monochromatic suits and ties and refraining from speaking – can bring peace to the Middle East, reinvent government, and conduct diplomacy with China and Mexico.

Trump knows that because Kushner is married to his daughter Ivanka, whose background as a jewelry and clothing executive makes her a perfect fit for a West Wing office from which she can advise on issues ranging from child care legislation to DACA and transgender exclusion from the military.

And Donald Trump, Jr. – best known for going into Dad’s business and posting hideous pictures of his brother and himself posing with exotic animals they have slaughtered for fun with high-powered weapons – can surely assume a high ranking position in his father’s presidential campaign.

Well, oops. Unsurprisingly to anyone but Trump, none of the three has proven remotely qualified for the tasks with which Trump has entrusted them. And Kushner and Trump, Jr., because they did not grasp the complexity of their new circumstances, appear to have earned criminal inquiry into their actions.

While details are still emerging, it appears that Michael G. Flynn is under investigation by Mueller for possible participation in the Russian interference in the election campaign, including possible collusion. The investigation reportedly centers largely on his activities while employed by his father in his consulting firm. His father is also under investigation for, in part, continuing to accept money from foreign governments during the Trump campaign and failing to register as a foreign agent.

The modus operandus of Mueller’s investigation is hooking and flipping the little fish to catch the big ones. We know that Michael Flynn the elder is already in serious legal jeopardy. His lawyer has been shopping for immunity in Congress, which has resisted, no doubt at the strong urging of Mueller, who knows that a grant of immunity can make prosecution difficult. (I explained in an earlier post that a grant of use immunity means that a witness’s testimony and any fruits of the testimony cannot be used against the witness. When a witness testifies publicly, the fruits are spread far and wide, forcing a prosecutor to demonstrate an independent, non-tainted source for every bit of testimony or evidence he wishes to introduce against the witness. Because any of the persons of interest in the Mueller investigation would be ill-advised to testify without immunity and Mueller will resist grants of immunity, we should not expect to see Flynn, Trump, Jr., or Kushner testify in public.)

Rather than give Flynn immunity, Mueller is likely to build a case against his son. Paternal instincts may encourage Flynn to cooperate with Mueller’s investigation to earn leniency for his son by spilling the beans on Trump and others.

Similarly, Trump’s paternal instincts are likely to weaken his position. Mueller is focusing on the June 2016 meeting at Trump Tower orchestrated by Donald, Jr., who, according to his emails, jumped at the chance to obtain damaging information against Hillary Clinton from the Russian government. Trump, Jr. subsequently lied in public about the meeting and may have lied further in his recent interview with staff of the Senate Judiciary Committee. Lies to committee staff are felonies. It is also likely that we do not yet know the full extent of the communication between Trump, Jr. and people working on behalf of the Russian government.

Mueller also appears to be looking into Jared Kushner’s financial dealings, including his struggle to manage his debt, and his failure, repeatedly, to report contacts with foreign actors. Until Trump, Jr.’s Trump Tower emails emerged, the consensus had Kushner as the family member with the greatest legal exposure.

If Mueller develops criminal charges against Trump, Jr. and/or Kushner, the President’s paternal role will put him in a bind. If they were not family members, he would quickly sever relations, as, for example, Nixon did with his longtime aides Haldeman and Ehrlichman. Indeed, it is hard to imagine that Kushner would still have a security clearance and be employed at the White House if he were not related to Trump. His continued participation in White House matters threatens daily to increase the legal exposure of his colleagues, most of who have now had to retain counsel. If he were not Trump’s son, Trump, Jr. might well have gone the way of Paul Manafort during the campaign – dismissed as part of a cleansing process. But, family ties prevented that.

Since Trump cannot cut his family members loose, his back will be against the wall if Mueller moves against them. Trump’s history suggests he may try to fire Mueller or impede the investigation in other ways. By that point, the investigation will be far enough along that it will be impossible to stop and Congress is likely to step in to protect Mueller. That may encourage Trump to issue pardons to save the family. I have discussed previously the consequences of pardons, including that they would likely ignite a political firestorm and contribute to an obstruction of justice article of impeachment.

The glaring lesson is to love your kids, but think twice about hiring them if you plan to run for president or work on someone else’s campaign.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.