The legal community is offering differing views about whether President-elect Donald Trump’s decision to hire his son-in-law as a senior adviser violates a 50-year-old federal law. Trump’s transition team argued there is no legal problem with having Jared Kushner serve in the White House because an anti-nepotism law enacted in 1967 does not apply to the president’s staff. Trump is relying on an interpretation of the law itself, backed by a court opinion from 1993, as well as a separate provision of federal law from 1978 that allows the president to appoint White House staff “without regard to any other provision of law” dealing with employment.
But several law professors and ethicists interviewed Monday by The Associated Press were not so certain. A “murky legal landscape” was the description given by Norman Eisen, who served as President Barack Obama’s government ethics lawyer. Kathleen Clark, a law professor at Washington University in St. Louis, said her analysis of the anti-nepotism statute signed into law by President Lyndon Johnson is that is does apply to the White House.
“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, the legislative branch, the judicial branch, the D.C. government,” Clark said. Gerard Magliocca, a professor at the Indiana University McKinney Law school, said he doubted the law could be applied to presidential staff members without running into constitutional problems. “It’s hard to see why Congress has the authority to limit presidential staff members,” Magliocca said.
Kushner lawyer Jamie Gorelick, a former high-ranking Justice Department official in the Clinton administration, cited a 1993 opinion in a case involving Hillary Clinton’s work on her husband’s health care law. The anti-nepotism law was not directly at issue in the case, but Judge Laurence Silberman, appointed by President Ronald Reagan, wrote then that the law probably does not cover White House staff.
Another Reagan appointee, Judge James Buckley, agreed with the outcome in that case, but did not join Silberman’s opinion only because he considered Silberman’s argument about the anti-nepotism law “a weak one.”