Nepotism Laws Don't Apply to Jared Kushner Appointment, DOJ Says

Presidents can appoint family to the White House because of a legal gray area.

January 21, 2017, 4:14 PM
PHOTO: President Donald Trump is joined by the Congressional leadership and his family as he formally signs his cabinet nominations into law, in the President's Room of the Senate, at the Capitol in Washington, Jan. 20, 2017.
President Donald Trump is joined by the Congressional leadership and his family as he formally signs his cabinet nominations into law, in the President's Room of the Senate, at the Capitol in Washington, Friday, Jan. 20, 2017. From left are Senate Minority Leader Chuck Schumer, D-N.Y., Sen. Roy Blunt, R-Mo., Donald Trump Jr., Vice President Mike Pence, Jared Kushner, Karen Pence, Ivanka Trump, Barron Trump, Melania Trump, Speaker of the House Paul Ryan, R-Wis., Majority Leader Kevin McCarthy, D-Calif., House Minority Leader Nancy Pelosi, D-Calif.
J. Scott Applewhite/AP Photo

— -- Jared Kushner, the son-in-law of President Donald Trump, has been approved to work in the Trump administration as an unpaid adviser, the Justice Department announced on Saturday. The early morning memo said that Kushner's appointment would not violate federal anti-nepotism laws, despite concerns about ethical gray areas.

“We conclude that section 3110 [of the U.S. Code] does not bar this appointment,” according to the 14-page memo from the Justice Department. "We believe that the President’s special hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid."

Public officials cannot appoint, employ or advocate for family members for roles in their administrations. The laws, however, apply specifically to government agencies, like the Department of Homeland Security or the Treasury. Kushner’s role as an adviser within the White House would not fall into this category.

According to Josh Chafetz, a professor at Cornell Law School and an expert in constitutional law and legislative procedure, the White House is not regulated in the same way as other administrative agencies.

“The bigger issue for the administration is not so much about the technical bounds of these nepotism laws, but it just looks bad,” Chafetz said. “I don’t think there’s anything legal that can be done in terms of the appointment. It just looks like there’s a pattern of cronyism that has emerged, especially in conjunction with the cabinet appointments.”

The anti-nepotism laws were originally passed in response to President John F. Kennedy’s appointment of his brother Robert as attorney general. They later prevented President Jimmy Carter from hiring his son as a White House intern during his administration.

For presidential advisers without explicit roles, there are no legal restrictions. When family members serve specific roles, however, it becomes more complicated.

Hillary Clinton, for example, famously went to D.C. Circuit Court in 1993 for her appointment to President Bill Clinton’s Task Force on National Health Care Reform. The court ruled that the White House and the Executive Office of the President were not subject to the anti-nepotism laws because they were not technically agencies.

Kushner, who has an estimated net worth of $1.8 billion, will forgo a salary in his new role. He is subject, however, to conflict of interest laws that do not apply to the president. Kushner owns the New York Observer as well as investment fund Kushner Companies, and has promised to resign and cut ties with his business empire. He will "divest substantial assets" by selling them or placing them into trusts held by family members, and "abide by federal rules requiring impartiality," according to a statement released by Jamie Gorelick, his attorney and partner at law firm WilmerHale.

The president has previously expressed interest in having his son-in-law work on issues involving the Middle East, praising him as a "tremendous asset." Already working within his new role, Kushner was photographed in the oval office Friday night as Trump signed the first executive order of his presidency.

"He has been incredibly successful, in both business and now politics," the president said of Kushner in a release earlier this month announcing the new role. "He will be an invaluable member of my team."

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