Monday, January 09, 2017

Standing to Raise An Anti-Nepotism Claim?

Gerard N. Magliocca

Media reports say that the President-elect will name his son-in-law to a senior staff position in the White House. This will lead to claims that the appointment is invalid because federal law bars the President from hiring a relative to a federal position. (Arguably the remedy for violating this statute is that Trump's son-in-law just cannot receive a salary, but leave that aside for now).

I have previously expressed doubts about whether this statute (5 U.S.C. Sec. 3110) is constitutional as applied to the President's appointment of his White House staff. Even if it is constitutional, though, I cannot see how anyone would have standing to challenge the appointment. How would the presence of Trump's son-in-law in the White House inflict a concrete harm on any particular person?


It's already inflicted harm on Chris Christie

President-elect Trump hasn't been properly vetted, especially by not disclosing his income tax returns. (Also, see Daily Kos post today on Trump's dealings with Russian Oligarchs to save him from financial hardships in 2007-8.) His son-in-law's real estate empire had some troubling financial times in approximately the same time period according to an extensive NYTimes article.

Assuming no one has standing to challenge the son-in-law, that doesn't make the situation ethical. [Insert Upton Sinclair quote.] If there are connections, the truth may make its way out especially if someone on the inside feels he/she is getting screwed. One can get nervous waiting for that shoe to drop. If Christie is the 400 lb. hacker sitting on his bed in NJ that Trump referenced as the possible DNC/Hillary hacker, we may not have to wait long.

Some discussion:

[a person cited might be of interest; a link is supplied & in the comments is another familiar name ... well, uh ... two, I guess]

Anyway, do think there is a broad right to appoint personal advisors, even if confirmation isn't a check. As noted in the discussion, different executive positions traditionally put qualifications.

The law cited seems blatantly in response to RFK, but that isn't the same thing as a "senior advisor." Now, I don't know what the job entails, including the duties and opportunities (viewing classified data etc.). I'm open to some argument an anti-nepotism requirement might be warranted in some cases in that sort of case.

As to standing, I don't think standing is the only way such laws would be enforced. But, as to particular harm, again, the job entails various things that can affect third parties. The "but for" cause might not be clear enough for current standing requirements but depending on the responsibilities, "concrete harm" can be imagined, particularly if we view things as a matter of de facto powers.


"Assuming no one has standing to challenge the son-in-law, that doesn't make the situation ethical."

Indeed, we have no argument there. Presidents undertake an oath to uphold and defend the Constitution, they are obligated to see the law faithfully executed. This duty and obligation are not lifted just because nobody else is in a position to compel them to keep it.

That said, there's apparently ironic precedent in Trump's favor, in the form of President Clinton having appointed his wife to a working position in his administration.

(the Clinton precedent is cited at the link)

Joe, thanks for the link. I wonder if the 1993 opinion could be dug up, I'd like to see the basis for which the Reagan appointed judge found that Hillary Clinton was not an employee (not even a 'functional employee' it seems) of the Bill Clinton administration. And then I'd like to see what differences, if any, exist for the adviser position Kushner is slated for.


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The case involved a President's Task Force on National Health Care Reform with the First Lady as the chairperson. Not being an employee meant something else there than here; it meant the certain oversight requirements kicked in. Note FN8.

A Washington Post article says he won't receive a salary. It also suggests the reach of his "portfolio," that might help the standing issue. The article notes his attorney is Jamie Gorelick. Yes, that name should ring a bell.

Emily Bazelon asked the standing question on Twitter as well. Suggestions: Tiffany Trump (for not getting any respect), Christie, The Lorax.


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Congress would arguably have standing if Trump's appointment draws a public salary.

I was actually contemplating starting a Twitter account just to make this point. The problem is the job he'll have; if there were any particular government action for which he could be held accountable, someone would have standing, but I can't see how a senior adviser could be held accountable for any particular government action. What about staff? I assume he'll have some, and if he fires someone in his staff, could they say that he had no power to fire them because he's holding his office illegally? It seems a weird sort of claim because he'd be the reason they had the job in the first place; it's not as if there's some sort of staff that would attach to Kushner's amorphous role whether or not Kushner were there.

Exactly: As an adviser, you're stuck trying to explain why Trump doesn't have the right to get advice from anybody he pleases. If he doesn't take a salary, and can't actually command any public actions, he's basically not an officer of the government.

Trump is wealthy enough that, if he wants, he's perfectly capable of paying for a shadow cabinet, complete with staff. Save the histrionics for an appointment that has some actual authority to engage in independent actions, not somebody who just chats with the President on a regular basis.

I'm quite open to the idea the law doesn't apply to him [though people who know the details more than I put forth reasonable arguments both ways] but the idea he is "just chatting" here like you know someone just shooting the breeze or something is a bit silly.

Komrade Brett seems to have been sipping more than a tad on the new version of the Moscow Mule featuring an orange slice hinged on an edge of the glass, accenting the hue of the ginger beer.

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