The Justice Department’s Office of Legal Counsel (OLC) largely disregarded its older memos on anti-nepotism laws when it issued a new opinion signing off on presidential son-in-law Jared Kushner’s hiring in January.
Politico obtained in a FOIA request for copies of those earlier interpretations of 5 USC § 3110, a 1967 law passed in response President John F. Kennedy’s appointment of brother Robert as attorney general. The language of the statute is broad and prohibits “appointment, employment, promotion, or advancement” of relatives by the president and other government officials.
As with many statutes affecting the executive branch, the 1967 law is open to interpretation as to its applicability. It is the OLC career attorneys’ job to advise the White House as to its interpretation when asked, as OLC Deputy Assistant Attorney General Daniel Koffsky did with regard to Mr. Kushner’s hiring. In his 14-page memo, Koffsky cleared Kushner from anti-nepotism concerns, citing another law, 3 USC §105, that “authorizes the President ‘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.'”
Koffsky went on to cite legislative reports about that law’s 1978 passage, saying:
Both reports state that the language “expresses the committee’s intent to permit the President total discretion in the employment, removal, and compensation (within the limits established by this bill) of all employees in the White House Office.” (Emphasis Koffsky’s)
The earlier opinions, issued under the Nixon, Carter, Reagan, and Obama administrations, appear likely to have prohibited Kushner’s hiring. Politico cites, for example, the determination by 1970s OLC staff that President Carter could only appoint his wife Rosalind to an executive Commission on Mental Health in an “honorary role.” These memos had been previous unreleased. Politico learned of their existence because of their citation in Koffsky’s memo and obtained them in a FOIA request.
The Nixon and Carter memos were issued before the 1978 law on which Koffsky relies was passed, but the Reagan and Obama determinations came after that. OLC saw no change from that law with regard to an attempt by President Reagan to appoint an unnamed relative to the Commission on Private Sector Initiatives nor President Obama’s suggestion to appoint a half-sibling to another presidential commission.
None of these post-1978 opinions, according to Koffsky’s memo, dealt with the White House Office as he understands it, but rather than with commissions he considered an “independent establishment.”
OLC opinions are not legally binding and can, from time to time, be reversed, modified, or distinguished by new attorneys or in response to developments in the law. Still, some ethics attorneys were dismayed over Koffsky’s memo and Kushner being allowed to serve.
“We think the law is ambiguous and that the safer course would’ve been to ask Congress to resolve the ambiguity,” Politico quotes, for example, a January statement by Obama administration official Norman Eisen and George W. Bush ethics attorney Richard Painter. Both men are employed at the Soros-funded Citizens for Responsibility and Ethics in Washington and are engaged in a lawsuit to have President Donald Trump removed from office.
Kushner’s own lawyer, Jamie Gorelick, did not respond to Politico’s request for comment but said, in January, “We believed that we had the better argument on this. … The Office of Legal Counsel of the Justice Department – in an opinion by a highly regarded career Deputy Assistant Attorney General – adopted a position consistent with our own.”
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