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Donald Trump has appointed his daughter Ivanka and son-in-law Jared Kushner to positions in his administration -- Ivanka is an advisor, and Kushner apparently has many roles.

How has he been allowed to do this, since it seems to violate 5 USC §3110(b), which says:

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.

I thought he was getting away with it by not paying them, but I don't think the above clause is limited to paid positions. In fact, part (c) confirms that:

An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.

That seems to say that there can be a violation of this section independent of whether they're being paid.

Part (a)(2) of the statute says that "public official" includes the President, and part (a)(3) says that "relative" includes both daughter and son-in-law. So there's no question that Trump, Ivanka, and Jared are included.

Part (d) says that the OPM may authorize temporary exceptions during emergencies. This is obviously not such a situation.

  • The basic logic is "That law doesn't apply to the President", I think. Though whether that's based on some specific language in the law or just an (untested?) assertion of Presidential authority, I don't recall. – zibadawa timmy Jun 2 '17 at 22:18
  • @zibadawatimmy The law has a definition of "public official". It specifically says that the President is included. – Barmar Jun 2 '17 at 22:20
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    from the text at law.cornell.edu/uscode/text/5/3110 : '“public official” means an officer (including the President and a Member of Congress) ...' – user4556274 Jun 2 '17 at 22:22
  • I've added the link to thq eustion. – Barmar Jun 2 '17 at 22:24
  • I believe you are misinterpreting the statement "An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay...". The correct interpretation is that someone can be appointed despite the "violation" of the preceding section, but is not entitled to any compensation. That is why, when you say, "he was getting away with it by not paying them" is an accurate description of what is being done. – PV22 Jun 6 '17 at 15:48
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The short of the answer: The DOJ said it's okay.

"In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office," said deputy assistant attorney general in the DOJ Office of Legal Counsel (OLC), Daniel Koffsky, as reported by CNN.

Koffsky argued that the president is given broad powers to hire and manage his staff in the White House and that anti-nepotism laws mainly apply to individuals holding an official position within an agency of the executive branch.

"A President wanting a relative's advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany formal White House positions; or to appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest," Koffsky noted.

"We believe that the President's special hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid," he added, according to CNN.

That quoted section can be found here and says

(a)

(1) Subject to the provisons of paragraph (2) of this subsection, the President is authorized to appoint and fix the pay of employees in the White House Office without regard to any other provision of law regulating the employment or compensation of persons in the Government service. Employees so appointed shall perform such official duties as the President may prescribe.

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    Also there's a claim that the White House is not an "executive agency", so the nepotism statute for executive agencies doesn't apply. – Colin Jun 3 '17 at 2:12
  • @ColinZwanziger I believe that's what Koffsky is getting at in the second quoted paragraph. – zibadawa timmy Jun 3 '17 at 2:41
  • @zibadawatimmy If the WH weren't an executive agency, there wouldn't be a need for the quoted paragraph. I suspect the exception is just for POTUS assignments in the WH -- other officials are still prohibited from nepotism in the WH. – Barmar Jun 3 '17 at 21:09

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