Jared Kushner and the anti-nepotism statute
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.