Hillary Clinton may wind up smoothing the way for Jared Kushner to work in the White House.
Donald Trump’s best argument that it’s legal to appoint his son-in-law Kushner to a high-level West Wing post comes from a two-decade-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. “So, for example, a President would be barred from appointing his brother as Attorney General, but perhaps not as a White House special assistant….The anti-nepotism statute, moreover, may well bar appointment only to paid positions in government.”
However, several legal experts dispute that interpretation of the law banning officials from appointing their relatives to government positions.
These lawyers contend it makes little sense to exempt the White House from a law that applies to the rest of the government and that carving out the White House from the anti-nepotism measure could undercut the application of a slew of other conflict-of-interest laws long deemed to apply to White House officials. They also question whether the language in the 1993 decision is actually controlling law or simply an aside.
“There’s some wording here they can try to wiggle around, but we all know the intent of the statute,” said Richard Painter, former top White House ethics counsel under President George W. Bush.
“The purpose of the statute seems to me to be to promote confidence in federal employees by prohibiting nepotism,” said Kathleen Clark, an ethics law expert at Washington University in St. Louis. “I don’t see why, logically, it makes sense to exempt the White House from the coverage of the statute.”
Spokespeople for the transition did not respond to repeated requests for comment on their view of the anti-nepotism statute and why it would not apply to Kushner. While there have been numerous reports that Kushner, a real-estate developer and owner of the New York Observer, is under consideration as a senior White House adviser, no official announcment has been made.
At the core of the legal debate is whether the White House should be considered an “executive agency” for the purposes of the anti-nepotism law. Over the years, courts have ruled that the parts of the Executive Office of the President that solely advise and assist the president are not agencies and are therefore exempt from the Freedom of Information Act, the Privacy Act and the Administrative Procedure Act.
The 1967 law was widely viewed as a response to President Lyndon Johnson’s dislike for the Kennedys and, in particular, President John F. Kennedy’s nomination of his brother Robert as attorney general. However, the author of the measure, former Rep. Neal Smith (D-Iowa), said it was aimed at appointments of relatives to much more mundane jobs, like work at post offices.
But Smith also said at the time that the measure, passed in a sparsely attended pre-Christmas House session, was intended to crack down on the practice of dozens of Congressmen of putting their wives on the official payroll.
In any event, the anti-nepotism law’s language clearly applies to Congress and the judiciary, making it unclear why Congress wouldn’t have sought to cover the White House. The law also directly mentions “the president,” although it isn’t explicit about whether the reference is aimed solely at preventing him from appointing relatives to jobs at government agencies rather than the White House staff.
“If you’re going to tell members of Congress you can’t put your spouse or your kid on your staff, how in the world can the president do that?” asked Painter, who endorsed Clinton in the presidential race and is now a law professor at the University of Minnesota.
Numerous other federal ethics laws have long been interpreted to apply to the White House, including some that prohibit a former employee from having official contacts with his or her former “department or agency.” Taking the White House out of the scope of the anti-nepotism law might undermine the entire range of conflict-of-interest measures, Painter said.
“It’s going to be a mushrooming effect if they want to do this,” he said. “I think there will be serious repercussions.”
Former Obama White House ethics counsel Norman Eisen dismissed the D.C. Circuit’s language about the anti-nepotism statute as far from definitive. “I would describe it as musing. It was not the holding of the case,” he said. “There’s a lot of maybes and possiblies in there.”
Eisen called a potential Kushner appointment “possibly or even probably illegal,” while acknowledging it’s unclear how a court would rule on the issue. Even an unpaid post for Trump’s son-in-law would be legally dubious, the former ethics official said, while warning that the all-in-the-family appointment risks doing serious damage his campaign theme of cleaning up Washington’s insider culture.
“It’s like he says, ‘I’m here to drain the swamp,’ and he shows up with an alligator,” Eisen added. “What’s the message that is sends? Setting the tone at the top is the number one rule of ethics.”
Both Eisen and Painter confirmed that under President Jimmy Carter the Justice Department issued legal guidance to the White House that the nepotism-related law barred appointing one of Carter’s sons to a White House internship. It’s unclear whether the legal rationale in that opinion has been undercut by subsequent court decisions giving presidents wider discretion about how to run their staffs.
Even if there are good arguments that appointing Kushner to a White House post is illegal, no one may be able to stop it, lawyers said. To have standing to challenge the appointment in court, someone would have to show he or she was personally injured by the assignment or by some official action Kushner took.
A little-known government office, the Office of Special Counsel, has authority to enforce the anti-nepotism law through the civil service system. However, it’s not clear how the enforcement mechanism would work at the White House. A spokesman for the office declined to comment.
The third judge who heard the Health Care Task Force case more than two decades ago, James Buckley, strenuously disagreed with his colleagues on several key points in that dispute—including their conclusion that the anti-nepotism law did not cover the White House.
“As a matter of policy and consistency, the restrictions on the President under the Anti-Nepotism Act must be viewed to be as broad as the Executive Branch: It is inconceivable that Congress, in combatting nepotism, intended to forbid Mrs. Clinton’s service as Attorney General while permitting her appointment as National Security Advisor,” Buckley wrote in a concurring opinion. “Viewed purely as a matter of congressional intent, the argument that the Anti-Nepotism Act applies only to the Departments and not to the White House…is a weak one.”
Partisanship provides no easy explanation for the disagreement in the 1993 opinion. All three judges on the panel were appointed by President Ronald Reagan.
The 1990s case, Association of American Physicians and Surgeons v. Clinton, was not a direct challenge to the legality of appointing Hillary Clinton to oversee the drafting of the health care reform law. Instead, the litigation focused on whether her presence as a non-government employee on the task force made it an advisory committee obliged to meet in public and disclose its records upon request.
The D.C. Circuit ruling ultimately concluded Clinton was a “de facto” officer or employee of the government, so open government laws did not apply, at least to the task force’s high-level deliberations.
While the majority opinion seems to endorse the idea that the anti-nepotism law does not apply to the White House, Silberman concluded by saying they’d not reached a firm conclusion on whether the first lady was covered by any of a myriad of federal laws beyond the specific access law at issue.
“We express no view as to her status under any other statute,” Silberman wrote.
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