The president’s son-in-law will serve as a ‘senior advisor’ in the White House, despite an anti-nepotism law, following a justice department review

The justice department has cleared Donald Trump’s son-in-law, Jared Kushner, to serve in the White House, with an opinion that upends four decades of legal advice regarding a federal law against nepotism.



Women's March on Washington begins as Trump presidency faces global protests – live Read more

The department’s Office of Legal Counsel (OLC) issued the opinion on Friday, inauguration day for President Trump. It was signed by Daniel Koffsky, the OLC deputy assistant attorney general.

“In choosing his personal staff, the president enjoys an unusual degree of freedom, which Congress found suitable to the demands of his office,” the opinion said. “Congress has not blocked, and most likely could not block, the president from seeking advice from family members in their personal capacities.”

Kushner, 36, is married to Ivanka Trump. He advised his father-in-law throughout the presidential campaign, variously recruiting Wall Street allies and purging political enemies.

Trump named him a “senior adviser” for the White House, to work alongside “chief strategist” Steve Bannon and chief of staff Reince Priebus. Kushner has said he will not take a salary.

The anti-nepotism law states that a public official “may not appoint, employ, promote, advance, or advocate for appointment” a relative to an agency or office that is run by the official.

The OLC opinion said the law leaves a president who wants a relative’s advice with a choice: “To seek that advice on an unofficial, ad hoc basis”, without the status and responsibilities of a White House job, or to appoint the relative to a post “and subject him to substantial restrictions against conflicts of interest”.



Norman Eisen and Richard Painter, respectively chief ethics attorneys for Barack Obama and George W Bush, told the Guardian in a statement: “We think the law is ambiguous and that the safer course would’ve been to ask Congress to resolve the ambiguity.”



In the opinion, the OLC admits the issue is not “wholly free from doubt”, and that the new advice contradicts a 1972 opinion which barred the president from appointing a family member “to permanent or temporary employment as a member of the White House staff”.

The justice department argues, however, that Kushner is clear to work in the administration because the president has authority to hire White House positions exempted from the nepotism law. That argument hinged on a different statute, the department said, that gives the president power to appoint employees “without regard to any other provision of law regulating the employment”.



Lisa Gilbert, director of the Congress Watch division of the nonprofit watch dog Public Citizen, said it was “unusual”, if also unsurprising, to see the Trump administration “push back on such a longstanding law with such a crystal clear intent behind it”.

“The purpose of this law is to make it impossible to make a close relative serve in the White House,” she said. “It’s an anti-nepotism law. We shouldn’t even be having this discussion.”

She added: “We expect them to continue to overreach,” she added.

“In a sense the Trump administration keeps pushing everyone to weave in and out of the ethics laws,” said Larry Noble, the general counsel of the Campaign Legal Center, a nonpartisan organization. “You have anti-nepotism laws to prevent enriching yourself by paying members of our family, but they also really blur liens of command and authority.”

“It’s going to be very hard to take on the president’s son-in-law,” he said. “It undermines even good decisions, because everything is going to be called into question.”

Kathleen Clark, a Washington University Law professor, said that the opinion looked like a case of “pragmatic lawyering”, if not a persuasive argument. The office, she said, “found a way to accommodate the president”.

“If they had come out the other way, and said this plan was prohibited, the would’ve set up a confrontation with Trump where he could go ahead and do it anyway. The justice department could lose institutional prestige if that happened. They would be setting up the possibility of Trump, on day one, asserting the ability to do whatever he wants.”

Facebook Twitter Pinterest Jared Kushner stands beside vice-president Mike Pence as Donald Trump signs his first executive orders on inauguration day. Photograph: Jonathan Ernst/Reuters

The nepotism law was enacted in 1967, after John F Kennedy named his brother Robert to serve as his attorney general. It has rarely had to be invoked in the decades since.

In the 1990s, the Clinton White House argued that Hillary Clinton was a “full-time officer or employee” with the title of first lady, as she worked on healthcare reform. In 1977, Jimmy Carter’s son was barred from working at the White House as an unpaid assistant – a decision that clashes with this week’s opinion.

Koffsky noted the dissonance, and argued that this latest opinion more thoroughly examined the president’s ability to hire exempt positions.

Koffsky also cited a 1995 ruling that said the White House itself was not an “executive agency” subject to the law in the same way that the justice department, for example, would be.

Kushner will still be subject to the conflicts of interest laws that come with a job in the federal government. He is the head of a real estate company with billions of dollars in financial interests around the world, and he remained active in business throughout Trump’s campaign.

Kushner’s lawyers have said he intends to resign and divest some of his holdings, but like his father-in-law’s attorneys they have yet to provide any details or proof about divestment.

Gilbert said that by foregoing a salary at the White House, Kushner appeared to be trying to make his position as ambiguous as possible under the law.

“We would want to see some paperwork, financial disclosures and a sense of what discussions he would be likely to recuse himself from,” she said.

Trump names son-in-law Jared Kushner as senior adviser, testing anti-nepotism law Read more

In their statement, Eisen and Painter said: “Most important, as we have publicly urged, is that Mr Kushner comply with all ethics, conflicts and disclosure rules.

“His counsel has said he will do so and we now await the details of his financial disclosures and ethics agreement to confirm that is the case. We wish his father in law, the president, had done the same.”



Trump has said his three adult children, Ivanka, Eric and Donald Jr, will not play a role in government, and that his sons will run his sprawling businesses in his stead. He has not provided any evidence that he has handed over control of the businesses, nor tax returns to show their extent and obligations.



Trump has not announced an appointment to head the OLC, and his controversial pick for attorney general, Alabama senator Jeff Sessions, has not yet been confirmed by the Senate.

Koffsky is a veteran of the department, honored in 2013 by then attorney general Eric Holder as “a living repository of OLC’s precedents and practices”.