Why Jared Kushner's appointment doesn't violate anti-nepotism laws

A legal opinion from the Justice Department concluded that presidents have broad authority to choose staff within the West Wing. But some ethics critics say Kushner's appointment still looks bad. 

Donald Trump’s son-in-law has been cleared by the Justice Department to work in the White House as an unpaid adviser, a reversal of legal opinions given to at least three past presidents.

The appointment of Jared Kushner, the husband of President Trump’s daughter, Ivanka, as a senior adviser to the president, would not stand in violation of federal anti-nepotism laws, according to a 14-page opinion the Justice Department’s Office of Legal Counsel posted online Friday afternoon. A 1978 law, writes Deputy Assistant Daniel Koffsky, essentially overrides the 1967 anti-nepotism law, giving the president broad authority to choose his own advisers and staff within the West Wing.

The legal opinion marks a shift in the counsel given to former presidents Jimmy Carter, Ronald Reagan, and Barack Obama. Anti-nepotism laws stood in the way when Mr. Carter wanted to hire his son as a White House intern during his administration, when Mr. Reagan appointed a relative to an advisory committee, and when Mr. Obama considered appointing his brother-in-law and a half-sister to advisory committees.

Mr. Koffsky, a longtime career attorney in the Justice Department, acknowledges Mr. Kushner’s appointment contrasts these historical precedents. But the memo argues that legal advice given to these past presidents was faulty: It failed to address the special hiring authority Congress gave the president for his personal staff under the 1978 law.

“In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office,” wrote Koffsky.

In other words, Koffsky concludes the anti-nepotism law covers only appointments specifically to “executive” and other government agencies, such as the Department of Homeland Security or the Treasury.

"We believe that the President’s special hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid."

Under the 1967 law, public officials cannot appoint, employ or advocate for family members for roles in their administrations, according to ABC News. Congress’s passage of the law was largely seen as a response to former President Kennedy’s appointment of his brother, Robert, to attorney general.

But Koffsky argues allowing Kushner to be an official adviser to President Trump, rather than an informal voice in his ear, could lead to more transparency over their dealings.  

"A President wanting a relative's advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany formal White House positions; or to appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest," wrote Koffsky.

Trump has already heavily relied on Kushner. As the Trump team transitioned into the Oval Office, Kushner became one of the main liaisons to foreign governments, communicating with Israeli officials and meeting with Britain’s foreign minister, Boris Johnson, earlier this month. He’s also met with congressional leaders and interviewed Cabinet candidates.

Kushner is expected to continue to try to broker peace between Israel and the Palestinians.

Kushner has also taken steps to eliminate any potential conflicts of interests between his business empire and his political position. Kushner, worth at least $1.8 billion, plans to sell some of his assets to his brother and to put others into a trust overseen by his mother, according to Kushner’s lawyer who has worked on the plan, Jamie Gorelick, as The New York Times reported.

While two former ethics officials said they would have preferred the Trump administration ask Congress if Kushner could serve in an official role, they say Kushner’s handling of ethics-related matters sets a needed example for the president to follow.

“Most important, as we have publicly urged, is that Mr. Kushner comply with all ethics, conflicts, and disclosure rules. His counsel has said he will do so and we now await the details of his financial disclosures and ethics agreement to confirm that is the case," Norman Eisen and Richard Painter of Citizens for Responsibility and Ethics in Washington said in a statement. "We wish his father in law, the president, had done the same."

But others argue Kushner’s appointment is less about legality and more about image.

“It just looks bad,” Josh Chafetz, a professor at Cornell Law School and an expert in constitutional law and legislative procedure, told ABC News. “I don’t think there’s anything legal that can be done in terms of the appointment. It just looks like there’s a pattern of cronyism that has emerged, especially in conjunction with the cabinet appointments.”

However, a handful of moderates and even liberals welcomed Kushner’s appointment and his potential as a moderating influence when the Trump team first announced it earlier this month.

“I’ll tell you right off the bat, of all the names I hear of the people going in there, Jared Kushner is a more intelligent and more thoughtful person than an awful lot of them,”  said Painter, who was also the former chief ethics lawyer for President George W. Bush and is a professor at the University of Minnesota Law School, to The Christian Science Monitor’s Harry Bruinius.

This report contains material from the Associated Press.