President-elect Donald Trump’s transition team is all in the family. Three of his children — Donald Jr., Eric, and Ivanka — are involved in the transition, though the President-elect denied reports that his team requested “top-level” security clearance for them and his son-in-law, former New York Observer publisher Jared Kushner. When Kushner was spotted taking a walk with President Barack Obama’s Chief of Staff Denis McDonough on Thursday—the same day that Trump and Obama met for the first time—the sighting quickly led to rumors that Kushner wants a job in the White House. According to the Wall Street Journal, he is talking to lawyers about possible roles and has reportedly expressed a willingness to stop receiving income from his own real estate company if it proves to be a conflict of interest.
But at least one federal law limits the types of jobs that Trump could give to his children and even Kushner, who all count as relatives under The Federal Anti-Nepotism Statute. According to that law, “A public official 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.”
Violators are “not entitled to pay.”
This provision went into effect six years after John F. Kennedy made his brother Robert F. Kennedy the U.S. Attorney General in 1961, so it has been nicknamed the “Bobby Kennedy Law.” (JFK’s brother-in-law Sergeant Shriver also ran the Peace Corps.) The Nation blasted the appointment as “the greatest example of nepotism this land has ever seen,” while Newsweek called it a “travesty of justice.” Irresponsible, said a New York Times editorial: “It is simply not good enough to name a bright young political manager, no matter how bright or how young or how personally loyal, to a major post in government.” The President would shrug off criticism by joking, “I can’t see that it’s wrong to give him a little legal experience before he goes out to practice law.”
It is often reported that Robert Kennedy’s appointment was the reason for the statute — and some historians believe it was added to the Postal Revenue and Federal Salary Act of 1967 at the request of President Lyndon B. Johnson, who used to call RFK a “snot-nosed son of a bitch.”
But the Act’s sponsor, Rep. Neal Smith (D-Iowa), later denied that argument in an interview with the Des Moines Register. Smith claimed that his goal was to crack down on nepotism at “smaller post offices” and Congress, because when he arrived on Capitol hill in the early ’60s, “there were 50 members who had their wives on the payrolls,” as he told the newspaper.
”Some were doing a good job, but…two-thirds of them didn’t do any work at all,” he said. “‘We can’t prohibit someone from getting a job just because they have a certain relative, but you need to make sure it’s not going too far.”
Twenty years later, in 1987, an investigation published by the news agency United Press International reported that at least 73 relatives of lawmakers had been on the congressional payroll since June 1986 because members of Congress were “skirting” the 1967 anti-nepotism statute by getting them jobs at other House and Senate offices. For instance, a congressman’s wife was a staff assistant on her husband’s subcommittee, while two congressman essentially traded their kids. “[A]n applicant has to only mention his or her widely recognized surname to get a job,” the article said. Though a “substantial number of those hired” in that category were merely summer interns, others were staff members who went to great lengths to conceal their relationships with representatives.
Legal experts are divided on how to apply this anti-nepotism statute. Some claim U.S. Code Title 3 gives Trump some leeway in tapping people — and possibly family members — to “serve at the pleasure of the president” on the White House staff, because the anti-nepotism law applies to federal agencies and not the White House. Others say Kushner could serve in the White House if he is not paid.
The 2016 Democratic presidential nominee Hillary Clinton is well-acquainted with this statute, since many accused her husband, Bill Clinton, of violating it when he made her chair of a health reform task force when he was President. But in March 1993, a federal appeals court ruled that she was a “de facto” federal official on her own merit, arguing that there was “a longstanding tradition of public service by First Ladies…who have acted (albeit in the background) as advisers and personal representatives of their husbands.”
“[T]he Arkansas Governor casually points to his wife in the easy chair next to him,” noted TIME’s 1992 “Man of the Year” feature on Bill Clinton, “when asked who will be the Bobby Kennedy of his Administration.”
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Write to Olivia B. Waxman at firstname.lastname@example.org