DOJ Shouldn’t Have Had To Approve Kushner Hire To Begin With, Experts Say

Pablo Martinez Monsivais/AP
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The Justice Department was on solid legal ground in affirming that Donald Trump did not violate federal anti-nepotism laws by appointing his son-in-law to a White House post, government ethics experts told TPM.

But they said that doesn’t mean the President should have brought a direct relative like Jared Kushner into his administration in the first place, nor does it eliminate concerns about conflicts of interest.

The DOJ’s Office of Legal Counsel, which interprets federal law for the White House, issued a 14-page opinion Saturday concluding that the President legally enjoys “an unusual degree of freedom” in appointing staff members. This extends to Trump’s decision to appoint Kushner as senior adviser, the DOJ concluded.

Robert Walker, election law and government ethics expert at Wiley Rein LLP, told TPM there’s a “pretty solid statutory basis” supporting the notion that the anti-nepotism statue doesn’t apply to the President.

“There was a statute passed after the anti-nepotism statute passed that does appear pretty clearly to give the President discretion in appointing members of his White House office staff,” he said. “So I think the DOJ opinion is solidly reasoned, solidly based, and was written by a person of independence and long experience in that office.”

Twenty-year DOJ veteran Daniel Koffsky, a deputy assistant attorney general at the Office of Legal Counsel, argued in the opinion that a 1967 anti-nepotism law passed after John F. Kennedy named his brother as attorney general applies only to appointments at an “executive” agency, as opposed to White House posts. Koffsky also cited a 1978 law granting the President “total discretion” in selecting White House employees.

Kushner’s own attorney, Jamie Gorelick, took a similar legal approach to affirming the legality of his appointment in a letter to the editor published last week in The New York Times.

“This looked like a case of pragmatic lawyering on the part of the Justice Department,” Kathleen Clark, a leading expert in legal ethics at Washington University in St. Louis, told TPM. “It looked like they decided that it was better to find a way to accommodate the President rather than pick a fight with him on something that was important to him on his first full day in office.”

Koffsky’s marked a break from prior Justice Department opinions, including a 1977 decision prohibiting the White House from employing the President’s son as an unpaid assistant. He argued that those opinions rested on a flawed reading of the anti-nepotism statutes and did not adequately address the special privileges the President has to appoint his personal staff.

Jessica Levinson, a professor of government ethics at Loyola Law School, argued that while the legal reasoning may be sound, it was “unfortunate” that Trump was opting to “skirt around” federal law. Levinson pointed out that all previous Presidents in modern history had voluntarily taken steps to minimize conflicts of interest and adhere to anti-nepotism statutes.

“If I were a member of the Department of Justice, it would be my role to interpret the law and I think they did that correctly,” she said. “If I were a member of the public, it would be my role to be disappointed and upset with the nation’s leader and the leader of the free world because we want to ensure that staffers are chosen by the president based on their qualifications, not who their parents are or who they’re married to.”

In his opinion, Koffsky noted that Trump could still have opted to seek Kushner’s advice even if he wasn’t granted an official White House role. Appointing Kushner to a senior adviser post subjects him “to substantial restrictions against conflicts of interest” and formalizes the relationship, according to Koffsky.

Kushner worked with the Office of Government Ethics to comply with federal ethics laws, agreeing to sell many of his assets, including The New York Observer newspaper and his family’s flagship office tower on Fifth Avenue in Manhattan. As The New York Times reported, those assets will be sold to his brother, Joshua, and placed in a trust controlled by his mother, Seryl, raising glaring questions about Kushner’s impartiality.

Clark of Washington University in St. Louis said that despite those lingering concerns about conflicts of interest, she understands why the DOJ interpreted the statute in a way that avoided the prospect of the President going rogue and rejecting the agency’s advice. If the DOJ had ruled that Trump could not appoint Kushner to a senior role and he had disregarded their decision, she argued it would have damaged the agency’s standing and sent the message that the President can flout the law.

“It would essentially set us on the path to lawlessness,” Clark said. “Rather than invite the President to move forward on the path to lawlessness, the DOJ found a way to accommodate him.”

ABOUT THE AUTHOR

Allegra Kirkland is a New York-based reporter for Talking Points Memo. She previously worked on The Nation’s web team and as the associate managing editor for AlterNet. Follow her on Twitter @allegrakirkland.

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