On January 20, President Donald Trump’s first day in office, the Department of Justice’s Office of Legal Counsel published a legal opinion that cleared the way for Jared Kushner, Trump’s son-in-law, to serve in the Trump administration.
In authoring the opinion, deputy assistant attorney general Daniel Koffsky departed from decades of precedent. Koffsky determined that the 1967 anti-nepotism statute, which was implemented shortly after President Kennedy appointed his brother, Robert, to be attorney general, is irrelevant in the context of White House Office appointees because the White House Office is not an “executive agency.”
Koffsky justified his reasoning by citing a 1995 D.C. Circuit case, Haddon v. Walters, which found that the anti-nepotism statute is taken into consideration with appointees in executive agencies, a categorization that would exclude the White House Office. He also analyzed the connection between the anti-nepotism statute and the U.S. Code’s section 105(a) of title 3, which grants the president authority to make White House Office appointments “without regard to any other provision of law regulating the employment or compensation of persons in the Government service.” “In choosing his personal staff,” Koffsky wrote, “the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office.”
This is a break with tradition. Since 1967, the OLC has reaffirmed that a president’s relatives are prohibited from accepting positions in any part of the administration. For example, in 1977 the OLC objected to President Jimmy Carter’s son working as an unpaid assistant in the White House.
