Some Thoughts on Jared Kushner and the Anti-Nepotism Law

by Andrew Hessick — Sunday, Nov. 20, 2016@andyhessick

 

In the past week, there has been a lot of discussion whether Jared Kushner, the son-in-law of Donald Trump, can serve as an advisor to Trump when he takes office. The concern is that hiring Kushner might violate the anti-nepotism laws.

Under 5 U.S.C. § 3110(b), a “public official” cannot “appoint” or “employ” a “relative” in the “agency” in which the public official works. The statute defines “public official” to include the President, 5 U.S.C. § 3110(a)(2), and “relative” to include son-in-law, id. § 3110(a)(3).

Even so, there are reasons to think that the statute does not pose much of an obstacle to hiring Kushner. The law prohibits employing a relative in an “agency,” and so far as is relevant, it defines “agency” as an “Executive agency.” id. § 3110(a)(1). The Supreme Court has interpreted the term “agency” in the APA and FOIA not to include the President or his close advisors. Franklin v. Massachusetts, 505 U.S. 788, 800-801 (1992); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980). The D.C. Circuit has said that this reasoning should extend to the definition of agency in the anti-nepotism statute. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993).

These decisions make a good deal of sense. The President is the principal, not an agent, so those hired to work directly for him don’t seem to work in an agency. Any doubts on this score should probably be interpreted against applying the law to the President’s close advisors to avoid interfering with the Executive branch.

Perhaps more important, though, is that, even if the anti-nepotism statute does prohibit Trump from hiring Kushner, it is likely that nothing will happen if the statute is ignored. No one inside the White House will stop the hire. Congress is also unlikely to interfere through hearings or investigations because it is controlled by Republicans, though party allegiance might be weaker than usual if Kushner is implicated in any wrongdoing.

Concerned citizens won’t have standing to bring suit challenging the hire. To have standing, an individual must suffer a particularized injury. Cases like Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974), establish that a claim that a person is disqualified from office doesn’t satisfy this requirement; it’s a generalized grievance that is too abstract to support standing. And it’s unlikely that anyone could ever allege a particularized injury against Kushner because his job would be just to provide advice to the President.

Still, even if the statute doesn’t and can’t be applied to the President’s close advisors, the reasons that motivated the statute—such as preventing subordinates from having undue influence—do apply to a President’s inner circle. But limiting who can work for the President probably won’t solve that problem. Trump, like any other President, is likely to listen to whomever he trusts, even if that person does not have an official position.

 

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