Here's how the president can justify hiring pretty much anyone he wants for certain jobs.
Donald Trump appears to be having trouble finding experienced candidates to be his next chief of staff, as John Kelley is leaving at the end of the year. It seems that he’s considering his son-in-law Jared Kushner for the job, which has caused many to question whether rules barring nepotism in government hiring allow the commander in chief to turn the executive branch into a family business.
No, the rules don’t stop him. At least that’s what Daniel Koffsky, deputy assistant attorney general in the Department of Justice office of legal counsel, which interprets federal law for the White House, concluded yesterday (Dec. 13). "In choosing his personal staff, the President enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office,” Koffsky writes.
Specifically, Koffsky is referring to a rule in federal statutes—3 US Code section 105(a)—that pertains to “assistance and services for the president” and says:
[T]he 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.
Koffsky in 2017 (pdf) considered a memo from 1972, when Richard Nixon was president, asking the same questions about nepotism. The memo stated:
Under 5 USC. 3110, no federal official (expressly including the President) may appoint or employ any of a broadly defined class of relatives in a civilian position in the agency in which the appointing official is serving or over which he exercises jurisdiction of control. A question has been raised as to whether this 1967 enactment would bar the President from appointing an individual there-in defined as a relative to permanent or temporary employment as a member of the White House staff.
The 1972 memo concluded that the rule might “arguably” unconstitutionally restrict the president’s appointment powers with respect to high-level officers, but did not make any final recommendations. Koffsky in 2017 wrote that the president’s office is not an executive agency and that he can hire family as White House staff, which would justify Kushner’s initial appointment as a “senior adviser” to the president.
In other words, while the president is chief executive, rules barring nepotism in an executive agency don’t count—according to Koffsky’s interpretation—because the White House isn’t an agency. Basically, it’s the office of the president. So other legal provisions that apply to hiring in government would undermine decisions made about White House staffing, he argues. Such a statutory catchall would give Trump broad leeway to hire just about anyone for his office.
This legal interpretation hasn’t dispelled criticism of Trump considering his daughter Ivanka’s husband. (She’s an unpaid employee of the White House herself.) Alexandria Ocasio-Cortez, the incoming New York Democratic congresswoman, called the possibility “classic Republican ‘bootstrap’ meritocracy” mockingly in a tweet today (Dec 14),
Ah yes, of course, it’s classic Republican “bootstrap” meritocracy: where the smartest, hardest-working, most fitting person for the job just so happens to be your son-in-law. https://t.co/u6mqhrJlGS— Alexandria Ocasio-Cortez (@Ocasio2018) December 14, 2018
Koffsky’s version is an arguable reading of the rules. As he puts it, “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.”
Trump was in talks with another controversial candidate for the position, former New Jersey governor Chris Christie. The two met on Dec. 13 to discuss the job, Axios reports. “He’s tough; he’s an attorney; he’s politically savvy, and one of Trump’s early supporters,” a source told the publication, explaining the president’s reasoning.
But Christie’s gone. He just withdrew (paywall), saying, “Now is not the right time for me or my family to undertake this serious assignment.”
Based on Trump’s track record, concern about nepotism wouldn’t have been the basis for hiring Christie as opposed to Kushner. It seems ever more apparent that the real question may just be who will want to take the job, given his administration’s rather alarming 62% turnover rate.