Yuri Gripas/Abaca/Sipa USA via AP Images
Former President Trump with his senior adviser and son-in-law Jared Kushner in December 2019
The Revolving Door Project, a Prospect partner, scrutinizes the executive branch and presidential power. Follow them at therevolvingdoorproject.org.
Thrust suddenly into an abbreviated race for the presidency this summer, Kamala Harris has leaned heavily on a handful of trusted advisers to help her cut a path to victory. Chief among them is her brother-in-law Tony West. Her reliance on West—who is currently on a leave of absence from his role as Uber’s chief legal officer—comes as little surprise; he has been by Harris’s side throughout every one of her prior campaigns. And now, as the campaign nears its end, it is only natural to wonder: If she wins, will West remain there in the next chapter? (Although West has publicly indicated that he will return to his position at Uber at the end of the campaign, experience shows that much can change in the frenetic period of transition planning.)
Until recently, hiring West would have been a legal impossibility thanks to a statute barring nepotism in federal hiring. But a dubious Office of Legal Counsel opinion, released on Inauguration Day 2017, busted open that door to allow President Donald Trump to hire his son-in-law Jared Kushner (and any other relative he might choose). In short, if Harris were to bring West into her White House, she would have none other than Donald Trump to thank.
Throughout much of our nation’s history, presidential nepotism was commonplace. Indeed, its roots reach all the way back to the founding. President John Adams handed various roles to both his son and son-in-law. In more modern times, presidents from Wilson to Roosevelt to Eisenhower all brought family members into their administrations as secretaries or advisers.
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Ubiquity, however, never made familial favoritism less controversial. And for good reason. Nepotism’s effects are insidious and wide-reaching. Preferential hiring for family members undermines the public’s confidence that their governing institutions are in the hands of those most qualified for the job. And it is an affront to basic principles of fairness.
The detriment also reaches beyond questions of individual qualification into institutional functioning. Nepotism blurs lines of authority; relatives may have—or at least be perceived as having—influence beyond what their title bestows. It also discourages frank, reasoned decision-making, because government employees may be less willing to give a president’s family member their honest opinion or to simply tell them “no.”
Many of these festering concerns came to a head when President John F. Kennedy appointed his younger brother as attorney general in 1961. Even against the backdrop of prior presidential nepotism, this appointment to a Cabinet position stood out. Robert F. Kennedy was just 35, and his only serious prior experience was as a Senate staffer—some of it on Sen. Joe McCarthy’s demagogic anti-communism committee—and manager of his brother’s campaigns.
Although it took six more years before Congress acted to outlaw such appointments, this particularly egregious case was top of mind when it came. The legislative language of 5 U.S.C. § 3110 is unambiguous in its application to high-level appointments: the law applies to appointments by a “‘public official’ … (including the President …).” That said, despite being popularly termed the “Bobby Kennedy” law, the provision did not exclusively target high-level appointments. Iowa Rep. Neal Smith, who introduced the amendment, was concerned with nepotistic hiring practices in local post offices. The legislative history underscores the point. Rep. Smith, for example, made clear he wanted to “deal with this problem … [in] all branches of service at the same time.”
If Harris were to bring West into her White House, she would have none other than Donald Trump to thank.
Rep. Morris Udall (D-AZ), who helped to shepherd the measure through Congress, described the provision as applying “across-the-board, from the highest office to the lowest paid job, with equal force and effect. [N]o official,” he emphasized, “in any of the three branches of the Government … may appoint or promote a relative to any position under his or her control or jurisdiction.” Others also understood the measure to cover White House hiring. In testimony before the Senate Post Office and Civil Service Committee, Chairman of the Civil Service Commission John Macy stated that the anti-nepotism law would have barred President Roosevelt from hiring his son as a White House aide. And, in opinions rendered over the course of five decades, the Office of Legal Counsel (OLC) repeatedly agreed.
Then came Donald Trump. Within days of winning the presidency, he made clear that he intended to give his son-in-law a plum gig in his White House. OLC did an about-face to make it happen. Jettisoning all of the office’s own prior reasoning, it concluded that the anti-nepotism statute did not apply to White House appointments.
The office advanced two legal theories to reach this unlikely result. To start, because the statute prohibits public officials from appointing relatives to “a civilian position in the agency … over which he exercises jurisdiction or control,” the opinion gestures to a bit of dicta from a 1995 D.C. Circuit opinion, which suggests that the White House is not an “agency” within the definition of the statute, making § 3110 inapplicable. Even ignoring this argument’s origins, its reasoning falters on its own terms. Buried in a footnote, OLC acknowledges that it considers the White House to be an agency in other contexts. Ultimately, it doesn’t even seem to convince itself; the memo takes pains to emphasize that the agency theory merely lends support to its conclusion. It is not an independent basis for its opinion.
Instead, the office rests the bulk of its argument on a second theory: According to the OLC opinion, Congress exempted White House appointments from § 3110 when it enacted a provision in 1978 that provides that a president may hire White House employees “without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” OLC contends that this language, codified at 3 U.S.C. § 105(a), “transformed” the “legal context” for presidential appointments.
On its surface, this conclusion—that §105(a)’s later-passed, broad language supplanted the anti-nepotism measure—seems sound. You don’t have to dig very far, however, to uncover the cracks.
To start, it is plainly inaccurate to suggest the “without regard to” language in § 105(a) “transformed” anything. White House appropriations measures had included identical language since at least the Roosevelt administration, freeing White House appointments from the usual civil service classification and pay system. Absent some affirmative indication to the contrary, we should assume that Congress intended those words to carry the same meaning as they had for decades (including in 1967 when Congress enacted § 3110). In fact, the legislative record affirmatively supports the conclusion that lawmakers wanted to continue to allow the president the flexibility to hire “without regard to” normal civil service rules.
OLC’s interpretation also flies in the face of § 105(a)’s obvious purpose. In the office’s telling, § 105(a) “transformed” White House hiring by unleashing presidential discretion. If anything, Congress was shortening the leash.
For years prior to 1978, Congress had largely acquiesced to presidential requests for White House funding, without much inquiry. The White House payroll ballooned. And Congress had little insight into who was employed, in what type of roles, and at what level of pay. Over time, lawmakers came to feel that they had been writing a blank check and shirking their oversight duties. So when lawmakers enacted a permanent authorization measure, they included some simple guardrails: caps on the number of people the president can employ at given salary levels and measures regulating the duration and compensation for temporary White House appointments. In other words, in 1978 Congress reduced presidential discretion over White House hiring—neither the purpose nor effect was to undo pre-existing restraints on nepotism.
OLC eventually acknowledges that the “without regard to” language did not originate in § 105(a). And, it even notes, the office had previously considered and rejected the theory that that language exempted White House hiring from the anti-nepotism statute. It was not until it re-examined the legislative history in 2017 that it reached a different conclusion: Congress may never have intended for § 3110 to override the White House’s permissive hiring authority at all.
What of those lawmakers’ statements emphasizing the anti-nepotism provision’s breadth? OLC buries them in a footnote. And because they don’t directly address the interplay between White House hiring authority and § 3110, OLC insists they should have no bearing on the analysis.
Next, the office seeks to discredit reliance on Chairman Macy’s testimony that the bar on nepotism applied to White House hiring. Macy, OLC observes, was giving an opinion on an earlier version of the bill that covered “departments” (defined as “each department, agency, establishment, or other organization unit in or under the … executive … branch of the Government … including a Government-owned or controlled corporation”) rather than “agencies.” The Senate substituted that new language, without explanation, sometime after Macy testified. Because Macy’s testimony concerned the earlier language, OLC contends, it bears little weight.
But this analysis only tracks if you assume that the Senate changed the language to exempt the White House. This doesn’t add up. In fact, at the same time the Senate was substituting the word “department” for “agency,” it was also adding language to make clear that the president is among the “public officials” § 3110 covers. Far from shrinking away from Chairman Macy’s characterization of the provision’s breadth, lawmakers appear to have emphasized his point.
Where the Senate intended to include exemptions, lawmakers appear to have made them explicit. The § 3110(e) language excludes those who qualify for federal veterans’ preference from the provision’s coverage. This addition did not go unnoticed in the House. And if that change sparked debate, it is difficult to see how a textual change seen as exempting the White House from anti-nepotism rules would have proceeded without comment.
Legislative history—full as it is of idiosyncrasies and contradictions—is almost always susceptible to multiple interpretations. But even allowing for those differences of opinion, OLC’s conclusion is a stretch.
Move beyond pure legal analysis and it appears even more egregious. After all, it is thanks to this OLC opinion that Jared Kushner went from running an inherited real estate investment business to (disastrously) leading everything from Middle East policy to the country’s COVID-19 response. One couldn’t ask for a better example of why Congress banned nepotistic hiring.
Fifty years ago, Congress acted to protect the American people from the president’s incompetent family members. OLC’s flimsy legal reasoning is no reason for Kamala Harris to turn her back on that principle.
