Monday, January 23, 2017

Presidential Advisor Update: Kushner Appointment Cleared by Justice Department

Career DOJ Lawyer Agrees 1978 Statute Authorizes Appointment

A career Justice Department lawyer on Friday issued a 14 page memorandum opinion to the Counsel for the President reaching the same conclusion about the Kushner appointment that I did, which is that the 1978 statute grants the President unfettered ability to select advisors. The statute, he wrote, "exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. § 3110.

While some will question this result and his impartiality, the author, Daniel L. Koffsky, is not a Trump appointee but rather Deputy Assistant Attorney General for the Office of Legal Counsel (OLC). He has had a distinguished career at the Justice Department, as exemplified by his receipt in 2013 of DOJ's Mary C. Lawton Lifetime Service Award. As the DOJ press release noted, this award
recognizes employees who have served at least 20 years in the Department and have demonstrated high standards of excellence and dedication throughout their careers. . . . Koffsky is honored for his exceptional contributions to OLC, the department, and the rest of the Executive Branch, including especially the sharing of his expertise across an extremely wide range of legal topics. A living repository of OLC’s precedents and practice, Koffsky has brilliantly served the department and his colleagues. He is a lawyer with the utmost integrity and judgment.
High praise for sure. The Attorney General who gave Koffsky the award? Eric Holder, President Obama's first Attorney General.

Amount Jared Kushner reportedly will be paid? $0. 
Value of a legal opinion about his appointment by a career DOJ lawyer heralded by Eric Holder? Priceless.

Friday, January 13, 2017

All in the Family, Meet The West Wing

As Bill Clinton Showed Us, Presidents Can Appoint Family Members as Advisors

A number of media reports -- as well as several members of the House Judiciary Committee in a letter to the Attorney General -- have claimed that the President-Elect's appointment of his son-in-law Jared Kushner as a senior advisor constitutes unlawful nepotism under federal law. It does not, just like Bill Clinton's 1993 appointment of Hillary Clinton to chair his Task Force on National Health Care Reform did not.

No one questions that the President has broad latitude to appoint staff to support him in his role. The Constitution reflects that understanding in Article II, which delineates the Executive Departments (such as the Departments of State, Treasury, and Defense -- what we call the cabinet posts) and the President's appointment power. As the federal government has grown so too has the President's need for support, and in 1939 the Executive Office of the President (EOP) was created. As stated on the White House website, "[t]he EOP has responsibility for tasks ranging from communicating the President’s message to the American people to promoting our trade interests abroad. Overseen by the White House Chief of Staff, the EOP has traditionally been home to many of the President’s closest advisors."