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DOJ Concludes Anti-Nepotism Laws Don’t Apply To Trump’s Son-In-Law

The Justice Department's Office of Legal Counsel issued an opinion on Friday finding that Kushner's appointment as a senior adviser to President Trump doesn't violate anti-nepotism laws.

Posted on January 21, 2017, at 12:21 p.m. ET

Jonathan Ernst / Reuters

WASHINGTON — Jared Kushner, President Trump's son-in-law, has gotten the all-clear from US Department of Justice lawyers to serve as a senior adviser in the White House.

The Office of Legal Counsel, a small office within the Justice Department that gives legal advice to the executive branch, issued an opinion on Jan. 20 concluding that Trump's decision to bring on Kushner wouldn't violate the federal anti-nepotism law.

"In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office," the office said.

The legal opinion was signed by Daniel Koffsky, the deputy assistant attorney general in the Office of Legal Counsel. Koffsky has worked at the DOJ for more than 20 years and received a lifetime service award in 2013. The news release from the department described him as "a living repository of OLC's precedents and practice."

Kushner is married to Ivanka Trump and was one of Trump's closest advisers during the campaign. Trump announced on Jan. 9 that he had tapped Kushner to serve as a senior adviser in the White House, working with chief of staff Reince Priebus and chief strategist Stephen Bannon.

The announcement immediately triggered concerns about whether Kushner could legally hold an official position in the White House given the anti-nepotism law. The Office of Legal Counsel was asked to weigh in. The office's decisions are not binding on the president, but it is rare for presidents to disregard its opinions.

The anti-nepotism law states that a “public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.” The law was passed in the aftermath of President Kennedy having his brother serve as attorney general.

The Office of Legal Counsel found that the president has special hiring authority for positions in the White House that are exempt from the anti-nepotism law. The opinion relied on a different statute that says the president can appoint employees to the White House "without regard to any other provision of law regulating the employment or compensation of persons in the Government service."

The Kushner opinion also referenced a 1995 ruling from the US Court of Appeals for the DC Circuit that found that the executive residence at the White House was not the type of "executive agency" covered by the anti-nepotism law. The Office of Legal Counsel didn't base its decision on that ruling, Koffsky wrote, but said that it "lends support to our conclusion that the President may appoint relatives to positions in the White House Office."

Koffsky acknowledged that the Kushner opinion contradicted some earlier decisions from the Office of Legal Counsel about how to interpret and apply the anti-nepotism law. In 1977, for instance, the Office of Legal Counsel found that President Jimmy Carter's son couldn't serve as an unpaid assistant to a member of the White House staff. But Koffsky wrote that the earlier decisions didn't analyze the relationship between the anti-nepotism law and the law granting the president separate hiring authority in the White House.

The president is free to informally consult with his family about official business, but in that unofficial capacity those family members aren't subject to conflict of interest rules, Koffsky wrote. Kushner's appointment as a senior adviser means he would have to comply with those rules. Kushner has said that he will divest from some of his assets.

Trump has yet to announce his nominee to lead the Office of Legal Counsel. A former Office of Legal Counsel official told BuzzFeed News earlier in January that the Trump transition team was vetting Steven Engel, a lawyer in Washington who previously served as the deputy assistant attorney general, for the job.

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