WASHINGTON/NEW YORK: 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 it 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 partly because he considered Silberman’s argument about the anti-nepotism law “a weak one.”
Ivanka to step down from businesses
Ivanka Trump, America’s incoming first daughter and Kushner’s wife, will step down from the Trump Organization and her own label, US media reported Tuesday.
The reports came just hours after Trump announced that her husband would take on a top-level job as special adviser to the incoming Republican commander-in-chief.
They suggest an effort by Ivanka, vice president of development and acquisitions at the Trump Organization who set up her own company that sells clothes, shoes and jewelry, to comply with ethics laws.
The couple are destined to move from New York to Washington, reportedly snapping up a new home in an upscale suburb, but US media do not expect Ivanka to take on a formal job at the moment.
Her husband’s appointment comes despite a federal nepotism law, passed after then-President John F. Kennedy appointed his brother as attorney general, that prohibits any president from hiring a relative.
Gorelick told the Washington Post said she was confident that the law does not apply to Kushner’s appointment.
In the past, Trump aides have drawn a distinction between Cabinet-level jobs and positions within the White House, suggesting that the latter carry more leeway for the president to appoint whomever he wants.
Kushner’s lawyer has said he will resign as CEO of Kushner Companies, his property development firm, and “divest substantial assets in accordance with federal guidelines.”
The Post reported that while his wife plans to resign from the Trump Organization and step away from her company, she will focus — at least in the short term — on settling her family into Washington.
She came under fire shortly after the election, when her company used her appearance in a family television interview to market a $10,000 gold bracelet that she wore during the segment.
The couple’s moves to break their business ties will compound pressure on the president-elect to do the same.
He is set to give his first news conference since the election on Wednesday, at which he is expected to lay out his own plans for the family business during his tenure at the White House.