Is It Legal For Ivanka and Donald Trump To Use The Presidency To Market Their Products?

It’s an unprecedented scenario in modern politics. The incoming first family of the United States is also an established pop-culture brand with enormous commercial interests across numerous sectors, from fashion to entertainment. So what happens when they use their position of power as a platform to hawk their businesses and products?

It happened (November 28, 2016). Soon after Ivanka Trump appeared on 60 Minutes with her father on Sunday, journalists received a style alert email from Ivanka’s fine jewelry company, which highlighted that she had worn a $10,000 bangle from her collection during her father’s first interview as president-elect. “Please share this with your clients,” Monica Marder, VP of sales at Ivanka Trump Fine Jewelry, wrote to reporters on her email list.

It’s not the first time Ivanka has used her father’s political ascent to boost sales at her own brands. The $158 dress and $135 pumps that she wore to the Republican National Convention—all from her own lines, of course—were promptly splashed all over fashion pages. On Instagram and on her brand’s website, she chronicled some of the outfits she wore as she hit the campaign trail for her father. But now that Donald Trump is president-elect, has something changed? Many people have called Ivanka’s unrelenting push to use presidential campaign events to promote her products tacky, but now that she is in such close proximity to the White House, is it even legal for her to use big presidential moments as marketing opportunities?

Technically, at the moment, yes. Donald Trump has already brought Ivanka and her husband, Jared Kushner, onto his transition team, and has reportedly asked for security clearance for them. And while there are strong rules that explicitly prohibit government employees from using their position in public office for private gain, this does not apply to transition teams. According to Richard Painter, a law professor at the University of Minnesota, previous administrations have set up their own personal codes of ethics for transition teams. He recalls President Barack Obama and President George W. Bush laying out exactly what would constitute a wrongdoing for their transition team members.

“[Transition teams] are performing functions very similar to the highest ranking officials inside the White House,” Painter says. “Every transition team has had an ethics code but I have yet to see the Trump one. They say they’re going to have one but one of the basic things that you do is post a rule about conflicts of interests.”

Fast Company has reached out to the Trump campaign to find out if they have a transition team code of ethics in place, and will update this post if we hear back.

Donald Trump is not permitted to bring his children on in official roles in the cabinet or a federal agency under a nepotism law. But that does not mean he could not bring them into the White House in some other capacity. Bill Clinton, for instance, appointed his wife to chair of his Health Reform Task Force. If Trump’s children were able to become government employees, the laws governing their business dealings would be much more black and white. The code of federal regulation specifically prohibits employees from “the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity.”

These rules don’t apply to Donald Trump himself. The president and vice president are exempt from this and many other of the regulations that govern government employees. Kathleen Clark, a law professor at Washington University, explains that there are idiosyncratic historical reasons for the laws unfolding in this way, but the basic logic is that while other employees of the White House might step aside when a conflict of interest comes up, this would be too complicated at the very top.

And as a private citizen, there are no laws that will bar Ivanka Trump from profiting from the new heights of celebrity and recognition that her family will achieve as first family. In the past, even though there have not been any rules in place, presidents and their families have abided by the norm of distancing themselves from their personal business interests in order to remain neutral when it comes to matters of state. But from the Trump family’s actions so far, it’s unclear whether they will abide by these unwritten codes of behavior.

“There is this concept that is widely embraced that public office is a public trust,” says Clark. “That people are given the opportunity to serve in the government, not in order to line their pockets. But what may be developing is a president who sees this an opportunity to further his private brand and to permit his business to take very advantage of the opportunities given to him.”

Trump already violated so many norms during the election. Threatening to throw his political opponent in jail, not disclosing his tax returns, and suggesting that he would impede the smooth transfer of power should he not win the election were all dramatic examples of him rejecting the behavior that has governed American presidential candidates.

It appears that he will continue to push up against these norms as president-elect and, as we’ve already seen, norms are fragile. “The thing about norms is that they are built up over time by patterns of accepted behavior,” says Maxwell Palmer, a political science professor at Boston University. “Once norms start breaking down, it’s hard to restore them.”

One way to combat this would be for Congress to fight to turn these social norms into laws. This would make far more explicit what Donald Trump and his family are legally allowed and not allowed to do when it comes to promoting their businesses while he is in office.

But another, more grassroots approach is playing out, as well. This is exactly what Shannon Coulter has already done by creating a movement on social media where people are vowing to stop shopping at the retailers, like Nordstrom and Macy’s, that carry Ivanka Trump products. After the results of the election last Tuesday, Coulter has seen an uptick in interest in the boycott. People are aware, Coulter believes, that the stakes just got higher.

“As an official member of Donald Trump’s transition team, Ivanka’s political role is deepening, as is the conflict of interest between the administration’s duty to put the public good first and Ivanka’s apparently unchecked desire to turn a profit,” Coulter says. “It’s profoundly tacky and a violation of the public trust, in my opinion, that Ivanka continues to use her father’s position as a marketing opportunity.”

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