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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.
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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.