I’m not even sure if this is the end of the story yet, but it’s been a strange and twisted path to get to this point. Ever since President Trump announced his intention to appoint his son-in-law, Jared Kushner to an advisory position on the White House staff there have been ethics questions raised regarding anti-nepotism rules. Yesterday the Justice Department finished a review of the question and concluded, albeit in a somewhat half hearted fashion, that it probably won’t violate any existing laws on that score. (Politico)
In a reversal of legal advice given to prior presidents, the Justice Department has concluded that it is lawful for President Donald Trump to appoint his son-in-law Jared Kushner to a White House post.
A 14-page opinion dated Friday from Justice’s Office of Legal Counsel asserts that a federal anti-nepotism law that applies to agencies across the executive branch does not cover the White House itself.
The anti-nepotism law dates to 1967 and is widely believed to have been aimed at blocking appointments modeled on President John Kennedy’s nomination of his brother Robert as attorney general.
However, Deputy Assistant Attorney General Daniel Koffsky — a longtime career lawyer at Justice — concluded that another law passed in 1978 and conferring broad authority on the president to appoint White House officials essentially overrides the earlier anti-nepotism measure.
So what they’re basically saying is that the 1967 anti-nepotism law was never really repealed, but another rule passed in 1978 sort of gutted it for this particular application. (The Civil Service Reform Act of 1978, signed by Jimmy Carter.) And that one has been summoned up in challenges to family entanglements in presidential hiring before. In what may prove to be one of the fine bits of ironic humor to come out of all of this, a previous case was being bandied about as evidence. It involved an appointment by one President William J. Clinton of someone to work as an aide heading up health care reform efforts during that term. What was her name again? Oh, that’s right… Hillary Clinton.
Donald Trump’s best argument that it’s legal to appoint his son-in-law to a high-level West Wing post comes from a two-decades-old legal case involving the woman Trump just vanquished in the presidential race.
In an obscure passage in that case, stemming from President Bill Clinton’s appointment of his wife to head up health care reform efforts, two federal appeals court judges opined that a federal anti-nepotism law passed in 1967 did not appear to cover appointments to the White House staff.
“We doubt that Congress intended to include the White House or the Executive Office of the President” in the anti-nepotism statute, D.C. Circuit Judge Laurence Silberman wrote in the 1993 decision joined by Judge Stephen Williams.
It seems like the original 1967 bill was none too subtly aimed at the Kennedy family after JFK made his brother the Attorney General, but when other political dynasties found it inconvenient most of the teeth were removed from it. So the bottom line is that Kushner will probably be joining the team.
I can’t help but wonder if all this was really necessary though. Yes, everyone has to follow the law (no matter how vaguely we wind up interpreting it) and if this is a legal appointment then so be it. But it just looks bad, doesn’t it? People wanted those anti-nepotism laws in the first place for a reason. We don’t need dynasties handing out plush appointments to their family members. And even if Jared Kushner is somehow wonderfully qualified to deal with questions of peace in the Middle East (really? A 36 year old sociology major who worked in real estate before buying the New York Observer?), we’re left with the question of whether there might not be somebody else in a country of more than 300 million people who was at least equally qualified without being married into the President’s family.
I’m not saying he’s not a competent guy and for all I know he’ll do a fine job. But as I said… this just smells bad. It’s not as if Trump isn’t already hanging a lightning rod over the Oval Office with all of the huge (and badly needed) changes he has planned. Why give his highly vocal critics one more thing to complain about?