President-elect Donald Trump intends to name his son-in-law, Jared Kushner, as a senior adviser to his White House — a move that would put to the test a 1967 anti-nepotism law and provide a Trump White House already rife with ethical questions a bona fide legal showdown.
In fact, this amounts to Trump's "first attempt to ignore the law," according to Washington University government ethics expert Kathleen Clark. And she says it has huge implications not just for Kushner, but for the rest of his presidency.
I spoke with Clark about anti-nepotism laws, why they exist, and how Kushner and Trump might get around this particular one. Our conversation is below, lightly edited for clarity and brevity.
WAPO: I think a casual observer may wonder why Trump’s son-in-law serving in his administration is a big deal. Why do such anti-nepotism laws exist, and why is nepotism a problem?
CLARK: We have anti-nepotism laws in the federal government and in lots of state governments, because the practice of hiring relatives undermines public confidence that the government official is actually finding best person for the job. What are the chances that the best person for the job just happens to be a relative, right? In addition to the problem of public confidence, hiring a relative also causes problems within the government organization. It can undermine the morale of government officials. It can cause confusion about what the lines of authority are; in other words, the relative may have a particular title, but many may perceive the relative’s role as even more important than the title would suggest. It may be very difficult to say no to the president’s son-in-law. It may be very difficult to say, ‘That’s a bad idea’ to the president’s son-in-law, in a way it would be easier to say those things to someone whom the president hired but isn’t related to — someone who’s not the father of his grandchild or grandchildren.
WAPO: The anti-nepotism law on the books is supposedly a reaction to the Kennedys. But was there an era in politics in which nepotism was a particularly bad problem?
CLARK: What I can tell you is that the federal statute is by no means unique. Almost all states have anti-nepotism laws. A review of state anti-nepotism laws in 2000 found only seven states lacked such laws. So it’s widely perceived as a problem that needs to be addressed by prohibiting the hiring of relatives.
WAPO: The Trump team and Kushner believe a 1993 D.C. Circuit Court decision gives them a way to make this happen, but you’ve noted that the section in question is “dicta.” Can you explain that?
CLARK: The crux of that decision was that the presidential spouse is a de facto officer or employee for purposes of the Federal Advisory Committee Act. And then, after [Judge Laurence] Silberman said that, he added dicta where he said, "We doubt Congress intended to include the White House under the anti-nepotism statute." Judge [James L.] Buckley on the D.C. Circuit concurred in the judgment, but refused to concur in the opinion, and specifically called out that passage and objected to it. So that part of the opinion, on which I suspect the Trump advisers will be relying, is absolutely dicta, and it’s, as I said, rejected by Judge Buckley.
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