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How Nepotism Law Could Keep Trump's Son-In-Law Out Of The White House

ROBERT SIEGEL, HOST:

One of Donald Trump's closest advisers is his son-in-law Jared Kushner. And there have been reports that Kushner is under consideration for a top White House job, though no actual announcement has been made. If Kushner does take a role in the Trump administration, it could run afoul of the federal anti-nepotism statute. And with us to talk about these rules is NPR's Ailsa Chang. Hi.

AILSA CHANG, BYLINE: Hi.

SIEGEL: First, what does this anti-nepotism statute say?

CHANG: Well, it's a law that prevents any public official from appointing or employing any relative in the agency that public officials serve. So three important words here - public official, relative and agency - or I guess that's four, but three terms.

So this law is something that came into being in 1967. It's widely believed to have been motivated, at least in part, by President John F. Kennedy's nomination of his brother Robert as attorney general. At the time, that appointment had rubbed a lot of people the wrong way.

But the statute was also directed at much more lower-profile nepotism going on at that time. For example, it was fairly common for congressmen to hire their wives to work in their offices. And the lawmakers, who crafted the statue at the time, said that this legislation was, at least in part, in response to that.

SIEGEL: Well, it would seem at first glance that this statute would apply to a White House job for Jared Kushner, would it?

CHANG: That's right. I mean, you know, in some ways, like, you know, Kushner is a relative. And under the statute, son-in-law is listed as one of the relatives to which the statue would apply. It's also clear that the phrase public official includes the president of the United States. But there's some gray area.

SIEGEL: Yeah, where is the gray area?

CHANG: So the crux of the legal debate here is what is an agency? Does the White House count as an agency under this law? And this is where it gets really interesting because the most often discussed legal authority on this particular question involves Hillary Clinton.

When President Bill Clinton appointed his wife to chair the task force on national health care reform, it triggered a lawsuit in the D.C. courts. The central legal question in that case actually wasn't about the anti-nepotism statute. It was actually about whether Hillary Clinton's task force had to publicly disclose records.

But almost as a passing note in the D.C. Circuit opinion in that case, the court said that the federal anti-nepotism statute does not seem to cover staff in the White House or in the executive office of the president. For example, the court stated a president would be barred from appointing his brother as attorney general but, perhaps, not as a White House special assistant.

SIEGEL: Did that settle the issue that White House staff jobs are not covered by the anti-nepotism statute?

CHANG: No, there - not at all. There is a lot of disagreement in the legal community about what Judge Laurence Silberman meant in that D.C. Circuit opinion. You know, courts have in the past held that parts of the executive office of the president are not agencies when it comes to the Freedom of Information Act and, therefore, don't have to publicly release records. But it's not clear that legal rationale transfers over when we're talking about the anti-nepotism statute.

And you can imagine why there would be tremendous disagreement. I mean, the anti-nepotism statute is based in large part because there's a perception that nepotism undermines the credibility of public officials and public confidence in government. And why would a statute like that carve out an exception for White House jobs?

SIEGEL: If Donald Trump wanted to avoid this entire legal morass, but he wanted to get advice from Jared Kushner, is there some way he could obviously do that?

CHANG: Well, one law professor I talked to today mentioned that if Trump kept Kushner on as a government contractor, Kushner could totally escape the reach of this anti-nepotism statute or maybe just give Kushner some informal advisory role. But remember, he has - Kushner has an immense real estate business that could be subject to many other conflict of interest laws if he were to formally become a government employee. So maybe Kushner himself wouldn't want to enter that legal morass.

SIEGEL: OK, that's NPR's Ailsa Chang. Ailsa, thank you.

CHANG: You're welcome. Transcript provided by NPR, Copyright NPR.