Vail Daily column: Nepotism laws and the presidency
December 6, 2016
Word on the street is that our president-elect is partial to this family and, in particular, relies upon his three grown children and his son-in-law. There are those that credit his son-in-law in substantial part for Mr. Trump's shocking presidential victory. It should be said that none of them — not Mr. Trump, any of his progeny, or his son-in-law — have the slightest whit of experience in office or in government.
The foregoing notwithstanding — and Trump being anything but your conventional president-elect — the president-elect has made it clear that he would like to find a place — whether official or unofficial — for his kinfolk in the White House. Some have suggested that Jared Kushner, Trump's son-in-law, might be charged with brokering a peace accord between the Palestinians and Israel. What's more, Trump has stirred up at least a minor controversy by meeting with various world leaders — including leaders from Japan, India and Argentina — and potentially mixing affairs of state and personal financial interests, by inviting his daughter, Ivanka, to tag along.
The questions all this raises are related to potential conflicts of interest (which I addressed in my last column) and those of nepotism and the presidency. In short, are there laws, customs or regulations that restrict or limit a president from appointing family members to key administration positions.
Before we get to that directly, a little history is in order.
Favoritism based on kinship
First, and perhaps foremost, there was Edith Bolling Wilson, second wife of the 28th president of the United States, Thomas "Woodrow" Wilson, who some have referred to as "the first lady president." Although she held no formal office in the Wilson administration, when the sitting president suffered a debilitating stroke, for nearly a year-and-a-half, Edith pulled the key levers of government, ostensibly and at least somewhat surreptitiously, in his name.
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In 1797, over severe public criticism, incoming President John Adams appointed his son, John Quincy Adams, as the United States minister to Prussia. The Adamses, you may recall, served as presidents two and six — both one-termers — but the nepotism stain was clearly not fatal to either father's or son's political ambitions.
Then, of course, there were the Kennedys of Camelot. Older brother, John, was elected as the 35th president, and younger brother, Bobby, was the president's attorney general. But Bobby was much more than that; he was JFK's confidant, conscience, bulldog, alter ego and consultant.
Lastly, consider Hilary under the first Bill Clinton term. Although she held no appointive office, she was given broad authority to try and reform the broken health care system.
These, of course, are only a few examples. History is rich with others.
One last thing before we move on; how is nepotism actually defined? Although used loosely, the precise definition is rather simple. Nepotism may be defined as "favoritism (as in appointment to a job) based on kinship."
Forging unknown territory
So, are there laws relating to nepotism and the presidency? As Sara Palin might say, "Yep. Sure as shootin'."
The Federal Anti-Nepotism Statute is key.
Although passed as part of a Postal Service reform law, it states that an executive agency official may not appoint relatives, including sons, daughters and sons-in law, to "a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control."
There is some question though if such a statute applies to the president. Some academics have argued that, since the president has powers directly vested by the Constitution's Appointments Clause, "inferior" officers (i.e., those who do not require approval by the Senate) may be appointed directly by the president. There is an argument, too, that if a family member, such as Kushner, serves without financial compensation, then there would not be a conflict with the statute. In fact, the stated penalty under the Anti-Nepotism Statute is to withhold salary or other financial remuneration from the wrongfully appointed employee. But there's also the possibility, some scholars argue, that any action taken by such a wrongfully appointed employee could be subject to legal challenge and potentially be voidable. In other words, say Kushner successfully brokered a deal with Palestine and Israel that included certain commitments from the United States. If his acts were ruled voided or invalid, then the commitments made would necessarily be revoked. And that would leave us — at the least — with Uncle Sam's tail between his legs.
What cannot be legislated is the potential influence of family members who hold no official post. There is simply no accountability for how a spouse, child or other family member might influence a president.
As with so many things Trumpian, we may be forging like a bull into unknown territory. The Statute has only been obliquely challenged since its passage in 1967 and the context — involving Hilary's role in health care reform — is only relevant in part.
Will Trump test the waters and, as he has laughingly suggested, make his son, Don, Secretary of the Interior or appoint Ivanka to Cabinet position? While, on balance, I think not, we'll simply have to wait and see.
There is an old Chaldean curse that goes like this, "May you live in interesting times."
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.
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