When President-elect Donald Trump decided to appoint his 36-year-old son-in-law Jared Kushner as White House senior advisor, the press cried foul, citing the 1967 anti-nepotism law. While the law applies to the executive, legislative and judicial branches of government, it wasn’t intended to tie the hands of presidents to appoint preferences for presidential advisors, including family. Since Trump launched his presidential campaign June 16, 2015, Kushner has been a key strategist, advising his father-in-law on many topics, especially those relevant to youthful voters. Kushner, a New York real estate developer and editor of the conservative New York Observer, helped architect Trump’s campaign strategy, especially his views on immigration, border security, trade and foreign policy. Kushner decided to forgo any salary connected to his White House job.
When you remove payment for his work, it upends conflict-of-interest or so-called nepotism restrictions intended in the 1967 law. Four years after the death of President John F. Kennedy, President Lyndon Johnson signed the anti-nepotism bill into law to prevent egregious conflicts-of-interest related mostly to government contracting where it’s obvious where nepotism crosses the line. When it comes to relatives advising presidents or, for that matter, serving in Cabinet positions, there’s ample president with President John F. Kennedy picking his brother Robert F. Kennedy to serve as his attorney general. Court opinions on the 1967 anti-nepotism law suggest that presidents have broad discretion in appointing advisors. Calling appointing family to White House positions, a “murky legal landscape,” Norman Eisen, President Barack Obama’s ethics lawyer, raised conflict-of-interest concerns.
When you consider the amount of elected officials whose spouses are either lobbyists or working in government positions, the anti-nepotism laws aren’t designed to prevent family members from working on projects closely tied to relatives serving in government positions. Government contracting to family members, bypassing strict competitive bid practices, mirrors the intent of anti-nepotism legislation. Kushner’s appointment to senior White House advisor doesn’t come close to the intent of anti-nepotism legislation. “Congress didn’t in this law carve out an exception for the White House. It’s quite broad in scope. It applies to the executive branch, legislative branch, the judicial branch, the DC government,” said Kathleen Clark, Washington University, St. Louis law professor. Whether the president takes advice from relatives or not, it’s not the intent of anti-nepotism laws.
More than nepotism problems, Trump’s been called out for his global business empire, driving Sen. Elizabeth Warren (D-Mass.) to fashion legislation to force Trump to divest his business interests before taking office. Trump’s voters knew his business dealings before Nov. 8, voting for him because of his business savvy. Whatever businesses Trump has overseas in the way of golf course or hotels, it’s a stretch to show how serving in the White House crosses those lines. Trump criticized Democratic nominee former Secretary of State Hillary Rodham Clinton for using the State Department to solicit donations to the Clinton Foundation. It’s inconceivable Trump would sell off the Lincoln Bedroom to foreign investors in Trump-related businesses. Voters knew that no one in U.S. history had Trump’s global business holdings before taking office Jan. 20.
Anti-nepotism laws aren’t designed to prevent White House, Congressional or Judicial branches from hiring anyone qualified for government positions, including family. Former President Bill Clinton used First Lady Hillary to fashion the 1993 national health care legislation. In a 1993 ruling, Judge Laurence Silberman ruled that the anti-nepotism law did not apply to White House staff. Whether that’s debatable or not, Kushner’s lawyer Jamie Gorelick, a former Justice Department official in the Clinton administration, sees no problem with Kurshner’s appointment to senior White House advisor. Trump’s comfortable taking feedback from his son-in-law, with his wife, Trump’s daughter Ivanaka, deciding to stay out of the White House. If Invanka also wanted a position, there’s little the anti-nepotism law could do to stop her from joining the White House staff.
President-elect Trump’s entitled to have advice from anyone he believes would benefit the nation, including relatives. Anti-nepotism laws are designed to prevent family from giving no-bid contracts to relatives, indirectly benefiting from government cash. Asking for Kushner’s advice, especially if he doesn’t take a salary, doesn’t violate any anti-nepotism laws, but, more importantly, conflict-of interest concerns. “It’s hard to see why Congress has more leeway probably to say the president can’t appoint a relative to his Cabinet or some agency created by Congress,” said Grerard Magliocca, Indiana University constitutional law professor. If JFK could name his brother to Attorney General, certainly Trump can name his son-in-law to senior White House advisor. Keeping his wife Invanka out of the White House won’t be easy, since her father relies heavily on her advice.
