Kushner’s Moscow mission wasn’t just corrupt. It was
unconstitutional.
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Jared
Kushner, President Trump’s son-in-law, has been traveling the world to
participate in high-stakes foreign policy negotiations on behalf of the
president. On Tuesday, Kushner traveled to Moscow and sat across the table from
Russian President Vladimir Putin to discuss a peace deal to end the war in
Ukraine. The entire United States delegation consisted only of Kushner and
Special Envoy Steve Witkoff. Kushner and Witkoff were joined at the table by an
interpreter.
Kushner’s
participation in the Moscow meeting — and the similar role he played in
the Gaza negotiations — likely violates the
law.
Representing
the Trump administration in high-level foreign policy negotiations makes
Kushner, at a minimum, a Special Government Employee (SGE). Under the law, an SGE is someone “who is
retained, designated, appointed, or employed to perform, with or without
compensation, for not to exceed one hundred and thirty days during any period
of three hundred and sixty-five consecutive days, temporary duties either on a
full-time or intermittent basis.”
Trump
has not named Kushner an SGE. But a seminal 1977 opinion by the Department of
Justice’s Office of Legal Counsel (OLC) found “an identifiable act of
appointment may not be absolutely essential for an individual to be regarded as
an officer or employee in a particular case where the parties omitted it for the
purpose of avoiding the application of the conflict-of-interest laws.” In that
opinion, the OLC considered the status of an individual who had not been named
to any role by the president but “assumed considerable responsibility for
coordinating the Administration’s activities in [a] particular area.” The OLC
concluded that since the individual was “quite clearly engaging in a
governmental function” and is “working under the direction or supervision of
the President,” he should be considered an SGE.
Here,
Kushner is engaged in activities that can only be conducted by
government officials. The Logan Act bars private citizens
from engaging in negotiations with foreign governments without authorization.
Kushner is acting in an authorized capacity, under Trump’s direction, and that
creates a host of legal issues.
As a
de facto SGE with substantial authority, the Foreign Emoluments Clause of the Constitution
prohibits Kushner from accepting “any present, Emolument, Office, or Title, of
any kind whatever, from any King, Prince, or foreign State.”
Since
leaving the White House in 2021, Kushner has raised at least $4.8 billion for Affinity Partners,
his private equity firm. Nearly 99% of Affinity Partners’ funding comes
from foreign sources. The largest investment, $2
billion, came from the Public Investment Fund of Saudi Arabia (PIF).
The
Saudi government pays Kushner 1.25% of its investment, or $25 million annually. Other investors, including
the governments of Qatar and the United Arab Emirates (UAE), pay annual fees of
up to 2%. As of September 2024, Affinity Partners had collected $157 million in fees, mainly from Middle Eastern
governments.
Kushner
is continuing to collect these fees as he serves in a top foreign policy role
for the Trump administration. This is precisely the kind of behavior the
Foreign Emoluments Clause was designed to prevent. Kushner was one of two
Americans on Tuesday engaged in high-stakes negotiations with Putin. But as the
private equity manager for billions of foreign capital, Kushner has a fiduciary
duty to advance the financial interests of Saudi Arabia, Qatar, and other
foreign governments.
In his
defense, Kushner might argue he is simply charging Saudi Arabia and other
governments “fair market value” for investment services and, therefore, is not
accepting an emolument. The OLC and many legal scholars reject this argument,
arguing that the Emoluments Clause prohibits payments from foreign governments
even if they are part of a “fair market value” transaction.
Regardless,
there was nothing standard about the multi-billion dollar Saudi investment in a
fledgling private equity firm. The PIF committee that screens investments recommended rejecting Kushner’s proposal, citing “the inexperience of the Affinity Fund management” and
“excessive” fees. The committee’s recommendation, however, was overruled by
Crown Prince Mohammed bin Salman, who heads PIF’s Board of Directors and with
whom Kushner had developed a close relationship.
Draft Kushner peace plan includes key Saudi priority
The
28-point peace plan drafted with Kushner’s assistance
includes a key priority of the Saudi government.
The
Saudi Agricultural and Livestock Investment Company, a PIF subsidiary, owns a
major stake in MHP, one of Ukraine’s largest agricultural conglomerates. The Continental Farmers Group, which cultivates nearly 480,000
acres in Western Ukraine, is owned by PIF.
As a
result, the transport of agricultural goods from Ukraine through the Black Sea
is a top Saudi concern. When the parties met in Saudi Arabia in March 2025, the
security of Black Sea shipping lanes was a central topic.
Point 23 of the peace plan that
Kushner helped draft fulfills Saudi’s policy objective: “Russia will not
prevent Ukraine from using the Dnieper River for commercial activities, and
agreements will be reached on the free transport of grain across the Black
Sea.”
Kushner pledged to have no foreign policy role
Prior
to Trump’s victory in 2024, Kushner pledged to have no foreign policy or other
role in a second Trump administration. He used this promise to wave away
concerns about Affinity Partners being used as a vehicle for foreign influence.
In
a February 2024 interview with Axios,
Kushner stated that he would not resume his role advising his father-in-law if
Trump were to win the presidency again. Kushner told Axios’ Dan Primack that he
made commitments to run his private equity firm “for the long term” and “my
commitment is to my investors, to my firm, to my employees, [and] to my
partners.” Pressed by Primack, Kushner said he would not accept a role in the
new administration even if asked by Trump.
Later in the interview, Primack asked whether, as a result of accepting billions in investments from public investment funds run by the governments of Saudi Arabia and the UAE, it would be “very difficult… to do any sort of foreign policy work” in a second Trump administration. “I’m an investor now,” Kushner replied. “I served in government, and I think my track record is pretty impeccable. Now I’m a private investor.”
