Is it time to rethink the nepotism law?

First published in the Lake Champlain Weekly
Written by Quentin Langley

Is it nepotism that Donald Trump has his daughter Ivanka and son-in-law Jared Kushner working at the White House? This would be a rather strange extension of the law. Rosalynn Carter used to attend cabinet meetings. Nancy Reagan became involved in personnel appointments, securing the ousting of Chief of Staff, Donald Regan. Hillary Clinton was appointed to devise proposals for healthcare reform in her husband’s administration. Of course members of the first family can exercise influence over policy.

Appointing family members to formal positions is more dubious than allowing them informal roles – though it is arguable that the most egregious breach was by Jimmy Carter, not often thought of as a notably unethical president.

The 1967 law preventing presidents and other officials from appointing relatives to office was signed by Lyndon Johnson in response to his predecessor, JFK, appointing his brother as Attorney General. Presumably there was a feeling at the time that this was an appropriate response. Johnson hated Bobby Kennedy, but the law had to be passed in Congress, so it was not just LBJ’s pique involved.

Yet, to this columnist, the law seems utterly redundant as a protection against appointments such as that of Bobby Kennedy. Attorney General is a Senate approved position. If the Senate had felt that he was unqualified or his appointment created a conflict of interest it could have declined to assent to the appointment. Kennedy plainly was qualified. He had been a legal counsel to the McCarthy hearings. While that may not say much for his political judgment, his legal qualifications and experience were solid.

Checks and balances to prevent the appointment of unsuitable people to a whole range of positions exist in the form of Senate “advice and consent” powers, which cover all cabinet positions. There are many powerful and influential positions, however, which are not covered: White House Chief of Staff, for example, or National Security Adviser. These posts are personal appointments of the president.

It might make sense to enact a law which says that where positions are not generally covered by Senate advice and consent the nomination of a close relative or business associate of the president would trigger such hearings and approval.

This would be a far from perfect solution. After all, without any formal position, Ivanka Trump and Jared Kushner could continue to advise the president: just as first ladies and other family members have done for years. Presidents have close friends. No doubt George W Bush listened respectfully to any advice his father offered. Sometimes presidents are wise to listen to their relatives and at other times they are not. All this is inevitable.

But current legislation seems foolish. While there should probably be more transparency around the appointment of presidential relatives to counselor roles – which the legislation doesn’t cover – checks and balances already exist for cabinet positions which it does cover. The whole thing needs to be rethought from first principles.

In any case, the Constitution sets the rules for appointing the cabinet, so it is possible the courts would not uphold the current law if any breach of it ever arose.

Quentin Langley lives in New York and London and teaches at the University of Bedfordshire Business School. He is the author of Brandjack: How your reputation is at risk from brand pirates and what to do about it

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