WASHINGTON, November 26, 2016 — President-elect Donald Trump appears to want his son-in-law, Jared Kushner, to have a senior spot in the White House. Kushner is a 35-year-old businessman, married to Trump’s daughter, Ivanka, and during the campaign he was a close advisor to Trump.
Michael “Meathead” Stivic, (played by Rob Reiner in the 1970’s hit television show All in The Family) never wanted to work for his father-in-law, Archie Bunker (played by Carroll O’Connor). One of the political questions of our day is if Jared Kushner wants in at his father-in-law’s new digs, and if so, how that will happen.
Meathead lived in Astoria, in Queens, New York, not too far from Trump Tower. That similarity between Stivic and Kushner might be the only one. Trump and his son-in-law get along.
Unlike the possible Kushner ascension, there was no law barring Meathead from working for Archie.
The pertinent federal nepotism law appears to clearly prohibit the president-elect from appointing Kushner to any government position. Like everything else in the law, however, there is wiggle room that might end with Kushner becoming a member of Trump’s closet team.
If Kushner wants an official position in the next administration, there should be a new position: Let’s call it Advisor At Will. Kushner must not be paid, and he should be required to sign a non-disclosure agreement, prohibiting him from using any information he has access to in his new role.
The federal anti-nepotism law (5 U.S. Code Section 3110) states:
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.
The law defines “public official” as an officer, “including the President” and “relative” as “an individual who is related to the public official as … son-in-law.”
The law was enacted in 1967 as a reaction to President Kennedy’s appointment of his brother Robert F. Kennedy as attorney general.
Today, legal experts have disagreement on exactly how to apply the anti-nepotism law, with some claiming authority under another federal law, U.S. Code Title 3, which gives a president some leeway in appointing people, including family members, to “serve at the pleasure of the president” on the White House staff.
The issue is more political than legal for Trump, and potentially criminal for Kushner.
To begin, for Trump, a legal challenge could take years to get to court and be resolved. Protracted legal battles never help the image of political figures.
Next, Trump campaigned on a concept of “cleaning up government.” Combined with a mandate that is thin, at best, he would be ill advised to push for Kushner in an official or paid role. Americans are clearly tired and upset of viewing a system they have seen for decades where politically elite families take up a large share of profit and power. This system was seen in the administrations of the Kennedys, the Bushes and the Clintons. It will cause a major reaction if it is perceived that Trump tries to continue that trend.
President Clinton suffered major political fallout when he appointed his wife as the chair of a national task force on health care reform. That caused a huge congressional backlash and sunk the Clintons’ health care reform effort.
The ensuing 1993 lawsuit however, challenging Hillary Clinton’s appointment, made the nepotism law a bit greyer. The Washington, D.C. federal court ruled that the White House and Executive Office of the President were not agencies under the federal anti-nepotism law. The court said Mrs. Clinton was a “de facto” federal official in her own right, and that “there was a longstanding tradition of public service by First Ladies … who have acted as advisers and personal representatives of their husbands.”
This ruling provides the wiggle room that might allow Trump to appoint relatives to advisory positions in the White House.
Kushner would be subject to conflict of interest laws that Trump would not have to face. The conflicts posed by Kushner’s current business interest and holdings could be significant. Does he want to divest himself from his businesses just to have a frequent view of Pennsylvania Avenue?
Richard Painter, who served as a Chief White House Ethics Lawyer from 2005-2007 said that if Kushner were to come into government as a government employee, including on a presidential commission, he would be subject to the criminal conflict of interest statute. Painter says “that’s the code that does not apply to the president, which is why the president-elect doesn’t really want to sell off his business interests. So does Kushner really want to do this?”
The law plainly bars Trump from giving Kushner an official role in the White House. One might ask, what if Kushner just wants to volunteer his services?
The anti-nepotism law does not prohibit voluntary participation, but another federal law does, making it a crime for government employees (including the president) to accept voluntary services not authorized by law.
An officer or employee of the United States Government … may not accept voluntary services … exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property” (31 U.S.C. 1342).
Trump has many questions to answer as he moves forward with his appointments. We will see if potential political backlash and possible investigations concerning his family and business relationships are “worth it” to him. He is, if nothing else, a fighter.
Is there any 5th or 6th or 7th degree that can be found between Donald Trump and Jeff Sessions?
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website: http://www.samakowlaw.com/book.
Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at www.thebusinessanswer.com.