Donald Trump has reportedly announced that his son-in-law Jared Kushner, who is married to Ivanka Trump, will take the post of Senior White House advisor. Despite the mainstream media’s uproar, it would not be entirely unprecedented for a family member to occupy a key post at the White House. As historian Doug Wead pointed out, more than 18 sons of presidents served with their fathers in the White House, and 14 daughters-in-law. In fact, William McAdoo, who was married to President Woodrow Wilson‘s daughter Eleanor, served as Wilison’s Secretary of Treasury.
However, unfortunately for Mr. Trump, times have changed. After President John F. Kennedy hired his brother, Robert F. Kennedy, as attorney general, a law was passed prohibiting public officials from hiring family members (including son-in-laws) to an agency or office over which he has authority. But like any law, there is gray area.
According to the New York Times, Kushner ‘previously enlisted the help of WilmerHale, a Washington D.C. law firm, to advise him on how to deal with the anti-nepotism laws. Apparently, the firm deduced that the law is not applicable to Kushner. Their argument being that although the law prohibits federal officials from employing relatives to lead particular agencies of which they oversee, the White House does not amount to an agency and is therefore not covered by the law. In addition, the law doesn’t cover White House staff, they say.
However, LawNewz.com reached out to several experts in the field who aren’t buying into it. They told us this legal assessment is just flat out troubling.
First what the law says:
(b) A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.
What did the experts tell us?
Professor Kathleen Clark, Washington University-St. Louis School of Law, Government ethics expert
“I read the anti-nepotism statute as imposing a restriction on what Trump can do including who the president can promote. The penalty provision simply clarifies that the person has no legal right to a salary but it doesn’t diminish the first provision of the statute on the President…There are consequences. There can be a finding of illegality, and there could employment discipline. There is legal argument that the statute shouldn’t apply to appointments at the White House, I don’t think its a compelling one.”
Supporters have pointed to a case involving Hillary Clinton‘s appointment to a health care task force during her husband’s administration. In the decision in that case, two federal appeals court judges said that the federal anti-nepotism law passed in 1967 did not seem to cover appointments to the White House staff.
D.C. Circuit Judge Laurence Silberman wrote:
“We doubt that Congress intended to include the White House or the Executive Office of the President…”So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant. … The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government.”
However, Professor Clark points out that the statement above is considered “dicta,” In other words, the statements are not key to the holding in the case, and therefore not likely enforceable. In addition, a third judge on the D.C. Circuit panel dissented on that one point. “People would question the credibility of any effort Kushner was in charge of — not because he was a bad person–but because of his connection to the president. His very appointment is in question and could undermine the credibility of any work he did,” Professor Clark said.
Stephen Vladeck, The University of Texas-Austin, Constitutional law
“It depends upon the exact terms and nature of the appointment (which I have not seen), but yes, it would seem to evade the letter (if not the spirit) of the anti-nepotism statute to appoint a close relative to a position within the White House (technically, the “Executive Office of the President”), as opposed to a federal agency.”
Stephen Gillers, Legal Ethics, NYU School of Law
“The D.C. Court of Appeals held in 1993 that the White House and the Executive Office of the President were not agencies within the meaning of the anti-nepotism law. The ruling was in connection with the appointment of HRC to head President Clinton’s health care initiative.
“The President’s implicit authority to enlist his spouse in aid of the discharge of his federal duties also undermines appellees’ claim that treating the President’s spouse as an officer or employee would violate the anti-nepotism provisions of 5 U.S.C. § 3110. That section prohibits any “public official” from appointing or employing a relative, such as a spouse, “in the agency in which he is serving or over which he exercises jurisdiction or control.” Id. § 3110(b). Although section 3110(a)(1)(A) defines agency as “an executive agency,” we doubt that Congress intended to include the White House or the Executive Office of the President. Cf. Franklin v. Massachusetts, 505 U.S. 788, ––––, 112 S.Ct. 2767, 2775, 120 L.Ed.2d 636 (1992) (holding that President is not “agency” for purposes of Administrative Procedure Act); Meyer, 981 F.2d at 1298 (President’s advisers are not “agency” under FOIA); Armstrong v. Bush, 924 F.2d 282, 289 (D.C.Cir.1991) (President not APA “agency”).
So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant. Be that as it may, it is not reasonable to interpret that provision to bring it into conflict with Congress’ recognition of (and apparent authorization for) the President’s delegation of duties to his spouse. The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government. See 5 U.S.C. § 3110(c). Thus, even if it would prevent the President from putting his spouse on the federal payroll, it does not preclude his spouse from aiding the President in the performance of his duties.
We could distinguish the First Lady from the First Son-in-Law. That’s plausible because that would suspend the anti-nepotism law for only one relative and so preserve the principle behind the law, namely to get the best person for the job. It also makes sense to limit it because a married president will have his or her spouse in the White House anyway. But presidents have many relatives.
There is another thing to think about. No one has standing to challenge the choice of Kushner. Further, Trump has a plausible opinion supporting him from a well-respected Washington lawyer at a well-respected firm. He can properly say ‘Let experts disagree but my position is reasonable and I have a federal case to support it. The critics have no case.’”
Editor’s Note: A version of this article was first published on November 18th. It has been updated with further comment and clarification from Gillers. Sheena Townsend contributed to this report.
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