Might Trump's Hunt-Loving Son Bump Into Federal Nepotism Law?
Donald Jr.'s wish to be Interior secretary might expose unresolved Washington questions.
Since last January, close Trump-watchers have been aware of the expressed desire of Donald Trump Jr.—an avid outdoor sportsman-- to be the next Interior secretary.
"Our big inside joke over Thanksgiving and Christmas, now that this thing has become very real with the presidency, is, 'Hey Don, the only thing you'd be doing in government is actually Interior,’ ” the Republican presidential nominee’s oldest son said in an interview with Petersen’s Hunting about his desire to enforce hunting, fishing and land management rights. “So I don't know if I'd be the head of it or just informing the [head], but rest assured that hunters and shooters and others know that I'd have his ear."
Other Trump family speculation would have the candidate’s other son Eric (like his brother, fond of African safaris), daughter Ivanka and her husband the real estate executive Jared Kushner, in key positions in or around the White House.
The problem is, should Trump Sr. win on Nov. 8 and nominate a namesake to his Cabinet, he might well run afoul of federal nepotism laws and civil service guidelines, according to sources consulted by Government Executive.
Under U.S. Code Title 5, Section 3110, a “public official” (which includes the president and members of Congress) “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.”
Relatives are defined as “father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister.”
Similar language has appeared since passage of the 1978 Civil Service Reform Act in the guidelines on merit principles and prohibited personnel practices issued periodically by the Merit Systems Protection Board. Exceptions may be possible. The law says the Office of Personnel Management “may prescribe regulations authorizing the temporary employment, in the event of emergencies resulting from natural disasters or similar unforeseen events or circumstances, of individuals whose employment would otherwise be prohibited by this section.”
The government’s no-no to nepotism goes back to the 1967 Postal Revenue and Salary Act, more commonly known as the Bobby Kennedy law because it was inspired, in part, as a reaction against President Kennedy’s 1961 nomination of his brother as attorney general.
But according to attorney Debra D'Agostino, founding partner of the Federal Practice Group in Washington, questions remain as to whether the nepotism ban in 5 U.S.C. Section 3110 as applied to the president is constitutional. “It has not come up,” she said, “and if Trump were to nominate a relative and someone challenged him, there’s a good chance the statute would be found unconstitutional because of separation of powers concerns. The check built into the Constitution is that while the president can nominate someone for a Cabinet position, the Senate must approve.”
Another ambiguity, D’Agostino said, surrounds the Office of Special Counsel, which is charged with enforcing prohibited personnel practices in executive agencies. “Because the Special Counsel is also nominated by the president,” she said, it isn’t clear “given the language of the statute, that OSC would have the authority to take a prosecutorial action against the president.” (The OSC declined comment.)
Trump would have leeway, she stressed, in appointing his family members to White House jobs under U.S. Code Title 3. “These people serve at the pleasure of the president, and are often people who worked on the campaign or as close advisors,” she said. “The president can plug in whomever he or she wants in those positions in his or her inner circle. That’s very different from Cabinet-level positions.”
For career agency people, said Bill Valdez, president of the Senior Executives Association, “the problem occurs when somebody like Trump Jr. comes in and then doesn’t understand federal nepotism rules. We see this all the time with political appointees who say, ‘I want my friend brought in for this kind of position.’ The career HR staff will say ‘no,’ we have to have a full and open competition,” Valdez continued, “and the politicals will try to say, ‘what are the authorities to bring in someone noncompetitively?’ ”
Valdez said there are plenty of such noncompetitive authorities for bringing in virtually anyone. “The job of the career civil service is to say what is allowed and what is not allowed. It’s a very important function,” he added, “and that education process goes on with every administration.”
The Trump campaign did not respond to repeated requests for comment.
Were Donald Jr. to make it to the Interior Department’s helm, here’s a taste of his likely agenda:
“Big portions of the Department of Interior’s multibillion annual budget is fighting lawsuits, filed by radical environmental groups, just to pay attorneys” and conduct endless studies, he said in the Petersen’s interview. “Let’s take this money, make our federal lands productive, increase our herds and flocks, and have more hunting.”
Might there also be an agency management job for his brother Eric or other close associates? Donald Trump Jr. hinted at a family interest in the Fish and Wildlife Service. “There seems to be a revolving door between the anti-hunting groups and leadership of the USFWS,” he said. “Somehow, the federal biologists think they are smarter than state biologists and you end up with a mess. In a Trump administration, avid hunters and anglers, who are proven conservationists, will be in the leadership of the USFWS.”