Press reports on Mr. Jared Kushner’s pending appointment to his father-in-law’s senior White House staff noted the nepotism issue and cited differences of opinion about whether the anti-nepotism statute applies at all. Mr. Kushner’s own lawyers have acknowledged that there are arguments going both ways, but they had, they thought, the stronger legal position. Kushner’s legal team now looks forward to an opinion from the Office of Legal Counsel, which can consider the issue and rule as soon as the Trump Administration takes office, and they seem confident that OLC will come out in their favor.
Non-lawyers are surely bracing themselves for this fight. One question is whether the anti-nepotism statute was effectively narrowed by one enacted years later, with the result that the law does not restrict an appointment such as this to the president’s immediate personal staff within the White House Office. In other words, a president’s appointments are still subject to anti-nepotism restrictions, but not all appointments–and, specifically, not a senior White House staff appointment like this. Mr. Kushner’s lawyers also argue that the White House is not an “executive agency” whose appointments are governed by this law.
For the non-lawyers, hearing that there are arguments of merit on both sides, the question will be what precisely is at stake. What will be consequence–the presumed harm–of the pending appointment? And the answer to this question bears on how the law is most reasonably understood.
The statute itself suggests that Congress acted to prevent a public official from enriching family members at public expense. The penalty it imposes for a violation is denial of salary: “An individual appointed in violation of this section…is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed…” 5 U.S.C. §3110. This focus on payment seems to have shaped other readings of the law, such as the House of Representatives, which in its counsel to Members on this issue offers this example:
Employee G works on Member G’s committee, and Employee G and Member F get married. Employee G may no longer receive compensation from the committee on which Member F serves.
But Mr. Kushner will not be paid a salary.
Perhaps another concern-though not, like pay, indicated by the statute–is that an appointee-relative cannot act with full independence, as he or she is likely to put family ties ahead of public obligations. On the other hand, a public official looking for blind loyalty from staff can shop for it outside the family, and he can enforce discipline by holding out the threat of dismissal, and executing on it as needed.
Also to be weighed in the balance is the leeway that a president possesses to appoint personal staff. If Congress has a measure of constitutional authority to disqualify categories of individuals for appointment to a president’s staff, then, to avoid a major constitutional problem, it would have to act for compelling, well-founded reasons. Preventing a president’s family from feeding at the public trough would be one such reason.
Without family self-dealing as a concern, the grounds for congressional intervention are weaker, and the constitutional stakes are raised. As Walter Dellinger, acting Solicitor General in the Clinton Administration, noted yesterday, “One should not assume Congress wants to interfere with whom the president wants as his closest advisers in the White House.” One should not assume this, nor, as a constitutional matter, should one wish for Congress to try. For example, may Congress regulate a president’s White House staff appointments by imposing other requirements–such as background, experience, age, or, in the interests of securing for the President fully independent advice, imposing restrictions based on family or long-standing personal ties?
The larger issue, for Mr. Kushner and Mr. Trump, is the adequacy of the steps taken to divest themselves and otherwise manage conflicts arising out of their financial interests. Here the regulatory objective is clear, and the issues presented by a First Family with far-flung global and domestic business operations and investments are complex. The resolution has to address both actual conflicts and the inevitable challenge of appearances. This is where time and energy are best spent, not so much on an appointment to an unsalaried White House staff position.