The Trump Administration and Nepotism

By Patryk O. Rogowski, J.D. Class of 2018 Touro Law Review Junior Staff Member

On January 9, 2017, President Donald J. Trump named Jared Kushner, his son-in-law, as his senior adviser.[1] On April 29, 2017, the White House announced that President Trump’s daughter, Ivanka Trump, will become an unpaid employee in the West Wing.[2] These appointments have raised many questions among the public pertaining to nepotism laws that govern government hiring.[3]

To determine whether President Trump is legally permitted to appoint members of his immediate family to work in the White House, two statutes must be examined.[4] The first is 5 U.S.C. § 3110, which governs nepotism in the federal government.[5] The second is 3 U.S.C. § 105, which pertains specifically to appointments made directly by the president.[6]

Section 3110 was passed by Congress and signed into law by Lyndon B. Johnson on December 17, 1967.[7] The law was a result of then-President John F. Kennedy’s appointment of his brother Robert F. Kennedy to the cabinet position of Attorney General in 1960.[8] Politicians in Washington and the general public were uneasy about this appointment,[9] and several years later, Congress sought to prevent nepotism of this type.[10]

The statute prohibits a federal official from hiring, promoting or recommending the hiring or promoting of any relative to any federal agency or department over which the official exercises authority.[11] For these purposes, the statute defines a “relative” to include both a daughter and a son-in-law.[12] Additionally, the statute explicitly includes the president in its definition of “public official.”[13] Furthermore, the statute defines an “agency” to include an “executive agency.”[14] To determine whether this statute pertains to the hiring of Jared Kushner and Ivanka Trump, the question becomes whether the White House qualifies as an “executive agency” under the statute.[15] The United States Court of Appeals for the District of Columbia Circuit in Haddon v. Walters[16] held that the Executive Residence in the White House is not an “executive agency” under Title 5.[17] This seems to compel the conclusion that the White House as a whole is not considered an “executive agency.”[18]

In 1993, President Bill Clinton appointed his wife, Hillary Rodham Clinton, to head the President’s Task Force on National Health Care Reform.[19] This appointment led to several motions being filed for a preliminary injunction based on anti-nepotism laws.[20] The D.C. Circuit Court found that “[a]lthough section 3110(a)(1)(A) defines agency as ‘an executive agency,’ we doubt that Congress intended to include the White House or the Executive Office of the President.”[21] The Court thus permitted the president to appoint his wife to serve as the head of the task force.[22]

Thus, based on case law, it would appear that Section 3110 does not prohibit the President of the United States from appointing members of his immediate family to serve as senior White House advisers. However, one more statute is relevant in solving this issue.

Section 105 governs the hiring of individuals to work directly for the president.[23] Section 105(a) states, in relevant part, “the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service.”[24] The only limitation on the president’s hiring abilities under Section 105 is a salary cap.[25] Section 105’s language certainly appears to give the president broad authority and wide discretion in appointing his employees and advisers. The use of the phrase “without regard” in the statute appears to indicate that the president occupies a special and unique place in the federal government and is entitled to make appointments of a vast range of individuals, including members of his own family. There have been no judicial opinions interpreting Section 105’s language.

Much public discourse has surrounded President Trump’s appointments of his daughter and son-in-law to high-ranking positions in his administration.[26] To date, no court ruling has either authorized or prohibited the actions taken by President Trump. The case law that is available appears to lean heavily in favor of the appointments made. Furthermore, the plain language of the applicable statutes also appears to lean heavily in favor of President Trump. While strong public discourse on this topic is likely to continue, it is likely that a court will hold these appointments to be lawful.

[1] Glenn Thrush, Jared Kushner Named Senior White House Adviser to Donald Trump, N.Y. Times (Jan. 9, 2017), https://www.nytimes.com/2017/01/09/us/jared-kushner-senior-adviser-white-house-trump.html?_r=0.

[2] Dan Merica, Gloria Borger, Jim Acosta & Betsy Klein, Ivanka Trump is making her White House job official, CNN Politics (Mar. 30, 2017), http://www.cnn.com/2017/03/29/politics/ivanka-trump-white-house-job/.

[3] Nepotism is defined as the “bestowal of official favors on one’s relatives, esp. in hiring; specif., the practice of unfairly giving the best jobs to members of one’s family when one is in a position of power.” Nepotism, Black’s Law Dictionary (10th ed. 2014).

[4] See 5 U.S.C. § 3110 and 3 U.S.C. § 105, which govern the appointment of family members by the President of the United States to work in the White House.

[5] 5 U.S.C. § 3110 (2006).

[6] 3 U.S.C. § 105 (2006).

[7] 5 U.S.C. § 3110.

[8] Josh Zeitz, The Bitter Feud Behind the Law That Could Keep Jared Kushner Out of the White House, Politico (Nov. 17, 2017), http://www.politico.com/magazine/story/2016/11/1976-nepotism-law-lyndon-johnson-bobby-kennedy-trump-kushner-214465.

[9] Id.

[10] It is important to note that the post of Attorney General is a cabinet-level post requiring the approval of the United States Senate. However, most White House adviser positions do not require Senate confirmation. Id.

[11] 5 USC § 3110.

[12] 5 U.S.C. § 3110(a)(3).

[13] 5 U.S.C. § 3110(a)(2).

[14] 5 U.S.C. § 3110(a)(1)(A).

[15] If the White House is not determined to be an “executive agency,” the anti-nepotism statute will not apply. See 5 U.S.C. § 3110.

[16] 43 F.3d 1488 (D.C. Cir. 1995).

[17]Walters, 43 F.3d at 1490.

[18] Id.

[19] Thomas L. Friedman, Hillary Clinton to Head Panel On Health Care, N.Y. Times (Jan. 26, 1993), http://www.nytimes.com/1993/01/26/us/hillary-clinton-to-head-panel-on-health-care.html.

[20] Ass’n of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993).

[21] Id.

[22] Id.