Kevin Johnson, and Donovan Slack

USA TODAY

WASHINGTON — The Justice Department has cleared the way for Jared Kushner, the son-in-law of President Trump, to serve as a senior adviser to the new president.

Deputy Assistant Attorney General Daniel Koffsky, in a 14-page opinion, said that federal nepotism laws did not apply because the president is afforded "special hiring authority,'' exempting positions in the White House from the law.

Koffsky, a career department official, said the law covers "only appointments in an agency,'' and that the White House is not classified as an executive agency.

Earlier this month, Trump announced the appointment of the 35-year-old real estate developer, who is married to Trump's daughter, Ivanka, asserting that the 1967 anti-nepotism statute did not apply.

Some ethics lawyers on Saturday said they disagree with the DOJ’s opinion and noted that it departs from earlier determinations about the nepotism law, which prohibits public officials from appointing relatives or promoting or advocating for their hire by entities they oversee. It expressly says the president is subject to the law and a son-in-law would be considered a relative under the statute.

“I would look at this opinion as saying, if you want to create an argument to allow Donald Trump to hire his son in law, yeah, there’s an argument that you can create and it’s an argument that runs against what we have said previously, but we think it’s an argument you can create,” Larry Noble, general counsel of the Campaign Legal Center said. “I think that’s the best you can say of this."

In 1972, Justice advised President Richard Nixon’s counsel that the law bars him from appointing a relative to the “White House staff,” and in 1977, the department determined President Jimmy Carter could not appoint his wife to serve as chair of his commission on mental health. That same year, it found the president could not appoint his son as an unpaid assistant to a member of his staff.

In 1983, the DOJ relied on the first Carter opinion in concluding the anti-nepotism law prohibited the president, Ronald Reagan at the time, from appointing a relative to an advisory committee on private sector initiatives.

Most recently, the department ruled the law prevented former President Obama from tapping his half sister and brother-in-law, Maya Soetoro-Ng and her husband Konrad Ng, to serve on advisory committees.

The opinion issued Friday said a 1978 law awarded the president the special privileges to hire White House staff “without regard to any other provision of law regulating the employment or compensation” of federal employees and so exempts him from the nepotism law, though only within the White House Office.

Kathleen Clark, a law professor at Washington University in St. Louis, disagrees. She said that law governs other employment factors, but not the actual appointment of an employee, which the nepotism law governs.

She said the opinion on Kushner is a reasonable argument but not persuasive, and appears like “results-oriented lawyering.”

“I think that this may be pragmatic lawyering,” Clark said. “They were trying to find a way to say yes to the now President Trump rather than setting up a fight about something that was really important to President Trump on literally day one or day two of the Trump administration.”

Justice officials could not be reached for comment Saturday.

Kushner’s lawyer, Jamie Gorelick, said “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,” she said in a statement.

Earlier this month, Trump said Kushner had been a "tremendous asset and trusted adviser throughout the campaign and transition and I am proud to have him in a key leadership role in my administration... He has been incredibly successful, in both business and now politics."

Trump said Kushner was "instrumental in formulating and executing the strategy'' behind the president's November victory.

Following his appointment, Kushner said he was "energized by the shared passion of the (president) and the American people.".