President Trump Hired His Son-in-Law As A Senior Adviser
Published: December 15, 2017
Secretary of Everything
On January 9, 2017, it was announced that President Trump's son-in-law, Jared Kushner, would become an unpaid senior adviser to the President.
Since his appointment, Kushner has assumed a wide-ranging foreign policy portfolio which includes pursuing peace in the Middle East.
He is reported to be Pres. Trump’s lead adviser on relations with China, Mexico, Canada, and the countries of the Middle East.
He is also reported to be the primary point of contact for the presidents, ministers, and ambassadors of over two dozen countries.
On the domestic front, Kushner has been tasked with reforming the federal bureaucracy. He has also been involved in discussions about criminal justice reform, improving the Department of Veterans Affairs, and addressing the nation’s opioid crisis.
All this despite Kushner having no prior diplomatic or public policy experience.
A 1967 anti-nepotism law – enacted after President Kennedy appointed his brother Robert as attorney general – states that a “public official” may not employ a relative in any “agency” over which they “exercise jurisdiction or control.”
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.
Under Article II of the U.S. Constitution, “executive power shall be vested in the President of the United States.”
Thus, the President certainly exercises “jurisdiction or control” over the White House, as well as the rest of the Executive Branch of goverment.
And the anti-nepotism law explicitly defines “public official” to include the President.
‘‘[P]ublic official’’ means an officer (including the President and a Member of Congress) ..... in whom is vested the authority by law, rule, or regulation ..... to appoint, employ, promote, or advance individuals, or to recommend individuals for appointment, employment, promotion, or advancement in connection with employment in an agency. [emphasis added]
It also explicitly defines “relative” to include a son-in-law or daughter.
‘‘relative’’ means, with respect to a public official, an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister. [emphasis added]
Moreover, it explicitly states that the term “agency” includes executive agencies, precluding Mr. Kushner from a taking position as a cabinet secretary.
For the purposes of this section - "agency" means - an Executive agency .....
However, it does not explicitly state that the term “agency” is defined to include staff positions, such as “adviser” or “senior adviser,” in the White House.
The resulting ambiguity opened the door for Pres. Trump’s appointment of his son-in-law to a White House position.
The Clinton Precedent
Moreover, there is precedent for a President appointing a family member to a White House staff position.
When President Bill Clinton appointed his wife, Hillary, to lead his Task Force on Health Care Reform, the couple was sued by a lobbying group.
The lawsuit did not argue that Hillary’s appointment to head the Task Force constituted nepotism.
Rather the lawsuit claimed that, since Hillary cannot be an official government employee under the anti-nepotism statute, the meeting of her health-care task force should be open to the public.
Nevertheless, the case did touch on the issue of how to interpret the word “agency” in the anti-nepotism statute.
The result of the lawsuit was a 1993 opinion from the D.C. Circuit of the U.S. Court of Appeals which stated, “We doubt that Congress intended to include the White House or the Executive Office of the President” in the definition of the word “agency” in the anti-nepotism statute.
It goes on to state, “So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant.”
It also states, “The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government. ... 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.”
This opinion thus suggests that a President could appoint family members to unpaid informal advisory positions in the White House without running afoul of the federal anti-nepotism law.
Department of Justice Opinion
On January 21, 2017, the Department of Justice (DOJ) released a 14-page opinion on the anti-nepotism statute.
The DOJ opinion argued that a 1978 law gives the President broad discretion to appoint White House staff members unconstrained by the 1967 anti-nepotism statute.
Specifically, the DOJ pointed to the following portion of the 1978 law:
“[T]he President is authorized 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. Employees so appointed shall perform such official duties as the President may prescribe.”
Such an interpretation renders moot the issue of whether the White House is an “agency” for the purposes of the anti-nepotism statute.
The DOJ opinion also argued that it is not possible to prevent a President from seeking advice from a family member in an informal capacity: “Congress has not blocked, and most likely could not block, the President from seeking advice from family members in their personal capacities. ..... Consequently, even if the anti-nepotism statute prevented the President from employing relatives in the White House as advisors, he would remain free to consult those relatives as private citizens.”
Working on this assumption, the DOJ then seems to imply that we are better off having the family members serve in official positions because at least they would then be forced to reduce their conflicts of interests: “A President wanting a relative’s advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany formal White House positions; or to appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest.”
In other words, a President may consult a family member informally, in which case the person is not subject to conflict of interest rules, or, a President may appoint them to a White House staff position, in which case they are.
While the DOJ may well be correct in its estimation that Congress could not realistically legislate to stop a President from seeking the advice of, say, his wife, after retiring to the White House residence, it is fallacious to equate informal discussions with the appointing of a family member as a “shadow secretary of everything” with access to classified information and tasked with overseeing peace in the Middle East, relations with China, and the stream-lining of government.
Mr. Kushner does not merely provide Pres. Trump with passing occasional advice. Rather, he has staked out a wide-ranging foreign policy and domestic reform portfolio.
And as to the suggestion that it is more democratic to have family members in formal positions because it would force them to reduce their conflicts of interest, Mr. Kushner has not ensured the absence of conflicts of interest, despite having been appointed to a formal position.
The appointment of Pres. Trump’s son-in-law as a "secretary of everything" is more befitting of an autocracy than a democracy.
That the federal anti-nepotism statute does not prevent such appointments is a serious oversight on the part of past governments and represents a failure to imagine a scenario in which an aspiring autocrat would test the resilience of the nation's democratic institutions.
A future government should reform the anti-nepotism statute to explicitly preclude members of a President’s family from being appointed to White House staff positions and ensure that this restriction is not rendered ineffective by any other statutes.