The Department of Justice advised President Donald Trump on Friday that he could appoint Jared Kushner, his son-in-law, to serve in the White House without running afoul of federal anti-nepotism laws.
Trump announced earlier this month that Kushner, one of the most influential members of his inner circle, would serve one of his senior advisers. He will step down from his position as CEO of Kushner Companies and not take a salary while serving, according to the Trump transition team.
Federal law says that any 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.”
A memo from the Department of Justice’s Office of Legal Counsel cited federal law authorizing the president “to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” That provision, OLC determined, gives the president broad authority to appoint whomever he wants as White House staff, regardless of the anti-nepotism statute.
“Under section 105(a), the President can exercise his authority to appoint and fix the pay of employees in the White House Office “without regard to” such a law,” the OLC memo says. “Thus, according to the most natural and straightforward reading of section 105(a), the President may appoint relatives as employees in the White House Office ‘without regard to’ the anti-nepotism statute.”
The memo was authored by Acting Assistant Deputy Attorney General Daniel Koffsky, a career attorney.
Some legal experts have expressed doubt that White House staff members were intended to be excluded from the anti-nepotism statute.
“The purpose of the statute seems to me to be to promote confidence in federal employees by prohibiting nepotism,” Kathleen Clark, a legal ethics expert at Washington University in St. Louis, told Politico in November. “I don’t see why, logically, it makes sense to exempt the White House from the coverage of the statute.”
Separately, the OLC memo also used a 1995 ruling in a case called Haddon v. Walters from the U.S. Court of Appeals for the District of Columbia Circuit to argue that the White House Office was not an executive agency. The anti-nepotism statute explicitly bars the president from appointing a relative to an “agency.”
The memo acknowledges that in the past, the OLC has advised against appointing family members to White House positions. Still, it said that its determination on Friday was correct.
“Although our conclusion today departs from some of that prior work, we think that this departure is fully justified,” the memo states. “Our initial opinions on the subject drew unwarranted inferences about Congress’s intent from a single witness statement in a congressional hearing. Moreover, the surrounding legal context has been transformed by the subsequent enactment of section 105(a), which expressly and specifically addresses employment within the White House Office, and also by the D.C. Circuit’s decision in Haddon.”
To support its reasoning, the memo also cites a 1993 case challenging President Bill Clinton’s decision to appoint Hillary Clinton to run his health care task force.
“We doubt that Congress intended to include the White House or the Executive Office of the President,” a D.C. circuit judge wrote in the case. “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.”
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