Lion of the Blogosphere

Jared Kushner and the anti-nepotism statute

with 44 comments

5 U.S. Code § 3110 (passed after John F. Kennedy appointed his brother to Attorney General) reads in relevant part:

(b) 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. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.

(c) An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

I found this Law Review article which talks about this issue with respect to the President’s relatives.

However, there are strong arguments that the statute should not apply to the President. First, commentators have argued that this statute is unconstitutional as it applies to the President, because it restricts his power to appoint. This argument is based on the explicit language of the Appointments Clause of the Constitution, which states that the President may choose any individual to fill any office governed by the clause. Second, the statute’s applicability to the President depends on the definition of “agency.” Is the President an “agency” bound by the Act? Finally, if the statute applies to the President, it would also seem to violate the statute authorizing expenditures for the First Lady, which allows the President to delegate duties to his spouse without specific limitation.

In 1993, the D.C. Circuit attempted to resolve these difficult issues in American Physicians and Surgeons, Inc. v. Hillary Rodham Clinton. The case arose after President Bill Clinton appointed a Task Force on National Health Care Reform chaired by his wife Hillary Clinton and charged it with conducting public hearings and submitting draft legislation. The task force initially met in secret in order to avoid pressure from lobbyists and other outside influences. The Association of American Physicians and Surgeons, a health care lobbying group, then filed suit against Hillary Clinton, claiming that the Federal Advisory Committee Act of 1972 (“FACA”) required that all of the Health Care Task Force’s meetings be public. The Act requires advisory committees to advertise their meetings in advance and open them to the public.” The public also must have access to all of the committee’s records, transcripts, and document drafts. However, FACA exempts from these requirements those advisory committees comprised solely of full-time federal officers or employees. The issue in the case was therefore whether Hillary Clinton, as First Lady, was a government officer or employee. If so, the meetings did not have to be open to the public; if not, the Task Force was required to open the meetings.

The D.C. Circuit held that Clinton was a full-time officer or employee for the purposes of FACA. In reaching its decision, the court noted that Congress has recognized the President’s spouse to be the “functional equivalent of an assistant to the President. While the court acknowledged that it was stretching the “officer or employee” definition by including the First Lady, it said that such an interpretation was necessary to avoid the constitutional problems that would arise if she had no official status.” Therefore, the court ruled that the Health Care Task Force could continue its closed meetings and that the President could seek and accept advice from the First Lady and the Task Force.

This ruling implies that a First Lady can engage in activities normally performed by government employees. First, the D.C. Circuit held that the Federal Anti-Nepotism Act did not prohibit the First Lady from seeking employment in her husband’s administration. The court determined that the White House and the Executive Office of the President were not agencies under the Anti-Nepotism Act.’ Although the Act does bar the President from appointing his spouse to a paid position, it does not preclude the President from seeking help from his spouse. Therefore, the President may appoint his relatives to advisory positions in his executive offices.

So there you have it. It’s settled law that Jared Kushner is a allowed to work in the Executive Office of the President as long as he’s not paid a government salary. And Kushner doesn’t need a salary because he’s filthy rich. Work, to him, is only for self-actualization.

Furthermore, some believe that the entire statute is unconstitutional as applied to the President whose authority to appoint is granted by the Constitution. However, it appears that Trump doesn’t wish to test the law’s constitutionality, as he is content to have Kushner work in an unpaid White House position. I am sure that Trump already has been given this advice by his legal team.

Don’t believe anything you read in the mainstream media that says Kushner is not allowed to work for Trump.

Written by Lion of the Blogosphere

November 16, 2016 at 12:32 am

Posted in Politics

44 Responses

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  1. What is your obsession with kushner? He’s not that interesting. He’s not going to be a part of the Administration. He’s not that important.

    Andrew E.

    November 16, 2016 at 12:37 am

    • By all accounts, Kushner is very important and Trump’s top advisor. Trump has requested that he have Top Secret clearance to accompany him in his daily security briefings along with Ret. General Flynn.

      This is probably going to be disappointing to Trump’s antisemitic fans.

      Lion of the Blogosphere

      November 16, 2016 at 12:41 am

      • Kushner is probably going back to managing his Manhattan properties that shelter SWPLs.

        JS

        November 16, 2016 at 2:01 am

      • Bannon will be far more influential to Trump’s Administration, like he was during the campaign.

        Andrew E.

        November 16, 2016 at 9:46 am

    • If you saw Megyn Kelly tonight you saw exactly why Kushner is so important. It was he who brought in the data guy, the internet marketing guy whose work was key to Trump’s ability to micro-target his message in PA and MI amongst others. And Kushner played a huge part in that.

      His data had Trump 95% certain to win by the Friday before the election. The only states he missed calling then were Wisconsin (+) and Colorado (-)

      Fascinating stuff – the guy is from Kansas, seems pretty religious – not what you’d expect for a brilliant data mind.

      gda

      November 16, 2016 at 1:14 am

      • If he didn’t make the predictions public before the election I don’t know how much stock you can put in them.

        Magnavox

        November 16, 2016 at 3:41 pm

  2. And Kushner doesn’t need a salary because he’s filthy rich. Work, to him, is only for self-actualization.

    The problem with many people on the right wing which is that they think that the only people making any money off the government are people receiving a salary or social services of some kind. The real money is actually in favorable regulations, subsidies, and contracts. Why are you so sure that Trump and Kushner aren’t just going to spend the next four years rigging everything in their favor? It looks like Trump is never going to have a Charles Erwin Wilson “What’s good for general motors…” moment where he is confronted on the incredible conflict of interest his business interests present.

    You also don’t understand rich people if you think that they make a certain amount of money and then don’t want any more.

    Magnavox

    November 16, 2016 at 12:46 am

    • The other big problem is that it gives Kushner access to all sorts of sensitive insider information which a smart person can also make a killing off of.

      Magnavox

      November 16, 2016 at 12:58 am

      • You mean like Bill & Hillary Clinton, Al Gore, and, soon, Barack and Michelle Obama. And, of course, various and sundry former Congress persons since forever.

        Oh and by the way, former Republican Governor of Florida, Charlie Crist, is back as the newly-elected Democratic US Rep from Florida’s 13th Congressional district (the City of St. Petersburg and Pinellas County).

        E. Rekshun

        November 16, 2016 at 11:43 am

      • Those are really good points Magnavox.

        Did you know Congress hadn’t passed an insider trading law until recently? Amazing.

        The Philosopher

        November 16, 2016 at 11:46 am

      • Insider trading for congress members and staff#

        The Philosopher

        November 16, 2016 at 11:46 am

      • The biggest windfall probably already occurred. The Trump name is the center of Trump’s business. Winning is a huge boost to the brand while losing probably would have had the opposite effect..

        I am sure Trump’s brand has been hurting badly among the rich international set, which is his hotel customer base. I can’t imagine he is doing this for person financial gain. A billionaire can just quietly buy some Congressmen and avoid all this hassle (hassle being an understatement).

        Dan

        November 16, 2016 at 11:55 am

      • How does knowing about what ISIS and Al Qaeda are doing help you make money in New York real estate?

        Although I can’t disagree that Kushner truly lucked out in life by being born rich, and then marrying Ivanka.

        Lion of the Blogosphere

        November 16, 2016 at 12:01 pm

      • The biggest windfall probably already occurred. The Trump name is the center of Trump’s business. Winning is a huge boost to the brand while losing probably would have had the opposite effect..

        I am sure Trump’s brand has been hurting badly among the rich international set, which is his hotel customer base. I can’t imagine he is doing this for person financial gain. A billionaire can just quietly buy some Congressmen and avoid all this hassle (hassle being an understatement).

        It seems like there’s a contradiction there and I only agree with the second half. The Trump name has become completely toxic to educated urban people and many of the people in his buildings are trying to get his name removed.

        I don’t know what will happen and it seems like Trump’s fundamental political ideology is going to weaken the position cities, especially New York City, at least compared to what would have happened under a mainstream politician, and therefore hurt him financially. Although on the other side his plan to reduce top income tax rates and eliminate the estate tax is clearly self serving.

        Mainly I would like him to admit that there’s a big problem with conflict of interest here and propose solutions solutions that silence even his most extreme critics.

        Magnavox

        November 16, 2016 at 3:37 pm

  3. Hey, Lion. You have legal training.

    Are there any good books on doing legal research…like learning how to properly shepherdize cases?

    map

    November 16, 2016 at 12:53 am

    • One word: Westlaw

      Lolyer

      November 16, 2016 at 2:06 am

      • Westlaw and Lexis are prohibitively expensive for most prole small town lawyers, yet they’re so good it’s borderline professional malpractice not to have one or the other. The law is a cruel business. Think of the poor unfortunates making do with fastcase and the like – worse yet, think of their clients!

        Two in the Bush

        November 16, 2016 at 9:46 am

      • Fastcase isn’t that bad. The user interface is beyond clunky and frustrating but its search algorithm seems to be just as good as Westlaw’s. I switched from Fastcase (@$29.95 or $39.95/month, I don’t remember the precise amount, but it was really inexpensive) to Westlaw (@$330/month) and didn’t really notice any difference in the quality of search results. Westlaw is much, much easier to use — when you click on the “next search term” button, Westlaw promptly responds, whereas with Fastcase there is a lengthy delay, etc. — so I haven’t switched back, but Fastcase was OK. Like you I prefer Westlaw, but Fastcase is a good way to save money if you are a struggling solo practitioner.

        Joe Schmoe

        November 16, 2016 at 11:00 am

      • Two in Bush –

        You’re right of course. But law is also strange in the amount of sheer bullshitting you can get away with. Before Lexis/Westlaw, I worked in a town with a products liability guy who only cited cases 20+ years out of date, i.e. he was arguing privity! Had big clients, didn’t seem to hurt his practice much.

        Law is my Life

        November 16, 2016 at 11:05 am

      • When I was doing my MBA at the University of Florida, the program included a full subscription to Lexis-Nexus and a couple of other excellent databases. For some reason, my subscription never expired until about ten years later. I got to do a lot of fun searching and reading. Tee hee! I’ve still got unlimited free access to a three or four subscription-based databases and new sources from three jobs ago!

        E. Rekshun

        November 16, 2016 at 11:55 am

    • Shepardize. It’s Shepard’s.

      mel belli

      November 16, 2016 at 10:55 am

    • I learned how to Shepherdize a case the old-fashioned way, back in 1987 before on-line services, during my one year in the night program at New England School of Law. A useless skill and $5000 down the ttt-toilet.

      E. Rekshun

      November 16, 2016 at 11:49 am

  4. When are you going to comment on how Jared Kushner loves America but not enough to stop feuding with Chris Christie for locking up his sleazeball father?

    Magnavox

    November 16, 2016 at 12:56 am

  5. I’m wondering if Manhattan’s real estate developers/landlords are in support of Trump. Without them, there wouldn’t be any SWPLs.

    JS

    November 16, 2016 at 1:56 am

  6. Reading DKos caused me to develop the misconception that true believer liberals were mentally unwell. The “woke” losers of NeoGaf are even further to the left than the Kostards, but at least they aren’t insane.

    Or so I thought. Read the linked thread. Usually they are simply revolting, but this is just sad: http://www.neogaf.com/forum/showthread.php?t=1315353

    Otis the Sweaty

    November 16, 2016 at 3:47 am

  7. The war between the BernieBros and the Clintonistas on NeoGaf during the primaries was brutal.

    While both sides were big into open borders, the Clintonistas hated Sanders and his supporters with a passion. Not as much as they ended up hating Trump, but still a lot. It wasn’t so much that Sanders campaigned to white people that bothered them as it was his focus on economic issues. To a large portion of the Left, particularly the black wing, focusing on economic issues is absolute heresy. They want race, race, race all the time.

    When Clinton won, they were anything but magnanimous victors. They taunted Sanders and his supporters and had a whole personality cult around Crooked Hillary. They would call her either “Abuela” or “Queen”. Everytime she did something that they liked or something went good for her they would go, “YAAAAAASSSS QUEEN!”, which I guess is some sort of meme but I never figured out where it came from. It was really fucking annoying though.

    The reason I bring this up is because, like I said above, the BernieBros are back on NeoGaf after being chased out in the aftermath of the primaries. Again, I want to stress that the Dems are in no danger whatsoever of splitting apart but the rift between the commies and neoliberals is as bad as ever.

    And it is the neoliberal wing that is the bigger threat to us. The Sanders wing taking over, whether it be by Ellison or Harris, would be poison when trying to win over the suburban whites who the Democrats need to win. What they *should* do is run Cory Booker who is basically Obama lite. He would be very hard to beat but the Dems might just be too stupid to do so.

    Otis the Sweaty

    November 16, 2016 at 4:18 am

    • I don’t read those websites but I do follow the Instagram account of a pro-Hillary person who is somewhat prominent in NYC. I won’t say her name. But when a Bernie supporter respectfully disagreed with her after Hillary got the nom., she sneered at him, “What’s your plan B?” not engaging him on issues, but in effect telling him to go fuck off.

      Lion,

      About Kushner, maybe he can be an intern. I expect he’d be in no danger of sexual impropriety.

      gothamette

      November 16, 2016 at 11:22 am

    • Someone should tell the BernieBros that whatever economic issues they believe in that overlap with Trump, it will all be undone if immigration is not dealt with. What good does it do to deal with the trade issues and corporate power if the entire world can simply show up in your country to work? It undoes everything the BernieBros believe in.

      It’s the primary reason I can’t stand Bernie Sanders. If communism benefits the proletariat and capitalism benefits the capitalist, then who does socialism benefit? The bureaucrat. The land, the machinery, the raw material and the labor will all be owned by the state and guys like Bernie Sanders will decide how it is used.

      No thanks.

      map

      November 16, 2016 at 11:46 am

      • “What good does it do to deal with the trade issues and corporate power if the entire world can simply show up in your country to work? ”

        Excellent point, well put. A lot of Bernie Bros are young. They will fight you, but you might make an impression that will take root.

        ” If communism benefits the proletariat and capitalism benefits the capitalist, then who does socialism benefit? The bureaucrat.”

        You’re good at this. I think I’ll steal it.

        gothamette

        November 16, 2016 at 2:18 pm

    • You’re badly mistaken Otis.

      The Bernie wing is by far the more dangerous element.

      Thats why the media ignores him completely. Putting Bernie on air for 5 minutes would convince most Americans to dump the system. Not the politician.

      The neoliberal wing was never popular in the US and UK. They relied on busing in immigrants to vote for them. Because they have no constituency being slimy lizard people.

      This ‘move to the centre’ MSM meme will die, along with the similar, ‘Repubs need to open the borders to Hispanics to win’.

      Neoliberals control both establishments against the people…because….

      They would lose an election if concentrated in the one entity…I mean who campaigns for open borders, free outsourcing agreements, wall street deregulation, and neverending war?

      The creature has to split itself and infest the power nexus of the host.

      The Philosopher

      November 16, 2016 at 11:52 am

    • YASSSSS QUEEEEENNNN is a gay thing that has seeped into the larger culture in the last 2 or 3 years. It originally went viral when a male Lady Gaga fan posted a clip to YouTube of himself complimenting Lady Gaga on the outfit she was wearing some event. It’s like two snaps up or the word fierce, now.

      rdorsey

      November 16, 2016 at 12:20 pm

  8. Trump cannot understand the things said in his security briefings unless a smart Jewish guy helps him with that. I do not know if it is the result of his low IQ or that he is a severe case of ADHD.

    Jonathan

    November 16, 2016 at 4:32 am

  9. I dunno. I’m just a little creature, but I like the anti-nepotism rules. Kushner maybe legally allowed to work for Trump or maybe not, but all these Bushes and Clinton’s and now Trumps don’t seem right to me. Also, a Jew should not be so prominent, he should be doing his thing behind the scenes.

    Yakov

    November 16, 2016 at 7:10 am

    • Isn’t that what he’s doing? When’s the last time you saw a Jared Kushner interview.

      IHTG

      November 17, 2016 at 5:23 am

  10. I haven’t had a chance to read it yet, but Breitbart just published an audi and transcript of a speech Bannon gave in 2014. Apparently, it’s supposed to give some insight into his worldview. Could be interesting.

    http://www.breitbart.com/big-journalism/2016/11/15/buzzfeed-steve-bannon-sees-entire-world/

    destructure

    November 16, 2016 at 10:08 am

    • I like both the Priebus and Bannon picks. It’s like the two faces of Eve, in this case, the two faces of Donald. (He’s a Gemini.) One side says, I have to play by the rules, it is what it is. The other side says…the opposite.

      I’m happy as long as he delivers on immigration. He has the power to do this, and it’s wildly popular.

      Trade will be more dicey because we are so entangled with China.

      Obamacare …It actually benefited me. So I’m not objective on that.

      gothamette

      November 16, 2016 at 11:25 am

      • ’m happy as long as he delivers on immigration.

        Yes, immigration is job no. 1, 2, 3, and 4!

        Obamacare …It actually benefited me. So I’m not objective on that.

        I’m hoping the same and that it will help me slide into early retirement. Subsidies evaporate after AGI greater than $47K and the plans, even the Bronze, are pretty expensive with high deductibles and high co-insurance w/o any subsidy to ease the cost. Nonetheless, a Bronze obamacare plan will limit your annual out-of-pocket to something like $7500, but that’s $7500 more than I pay now under my employer-subsidized plan.

        E. Rekshun

        November 16, 2016 at 12:07 pm

      • I don’t understand Michael Moore, I really don’t. He did a brilliant comic riff predicting Trump’s win, the now-famous “fuck you to the system”, which mentioned the “fucking Bronze plan” (to howls), and now he’s demonstrating against Trump’s election? WTF? Wouldn’t it be smart for him to accept the outcome & work against it?

        gothamette

        November 16, 2016 at 2:21 pm

      • I’m almost beginning to feel sorry for Obama. Someone argue me out of this.

        Because I think that Obamacare was a step in the right direction. He forced the issue of health care front and center. I hope that Trump pushes it over the cliff and puts everyone on either Medicare or Medicaid (lowering Medicare age, making it possible for anyone who wants to join Medicaid) but Obama was the instigator.

        Otis, argue me out of feeling sorry for Obama. Don’t worry, I’ll never feel sorry for Hillary or her ‘bots, but Obama….

        gothamette

        November 16, 2016 at 2:24 pm

      • Gothamette, ultimately cheap government-controlled health care means explicitly rationed health care. You may like the thought of it now while you are relatively young and healthy, but you will like it less when you need, for example, a coronary bypass but the bean counters decide you’re too old and have too many comorbidities to justify the cost of bypass surgery for you.

        nebbish

        November 16, 2016 at 11:24 pm

  11. Anyone who bagged Ivanka is a genius in my book.

    fakeemail

    November 16, 2016 at 11:03 am

  12. What is a relative? We are all related if we go back far enough.

    Clay

    November 16, 2016 at 10:34 pm

  13. I don’t know. Isn’t there a high functioning sociopath available? They may be heartless and cold, but they’re not Wall Street like 99% of Hillary donors.

    Joshua Sinistar

    November 17, 2016 at 8:31 am


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