Illegal for presidents to appoint relatives...

DOJ releases overruled memos finding it illegal for presidents to appoint relatives

The legal opinion that cleared the way for Kushner and Ivanka Trump appointments reversed earlier advice.

By JOSH GERSTEIN

The Justice Department has released a series of recently overruled legal memos concluding that presidents cannot appoint their relatives to the White House staff or presidential commissions, even to unpaid posts.

In January, a career Justice Department official essentially declared the earlier opinions erroneous or obsolete, clearing the way for President Donald Trump's son-in-law Jared Kushner to take a senior adviser position in the White House. First daughter Ivanka Trump later took a similar official but unpaid slot under the same legal rationale.

The newly-disclosed opinions, issued to the Nixon, Carter and Reagan White House and obtained by POLITICO Monday through a Freedom of Information Act request, detail how Justice Department lawyers concluded for decades that such appointments of family members were illegal under an anti-nepotism law passed in 1967.

"You have asked for our opinion on the question whether the President could appoint Mrs. Carter to be Chairman of a Commission on Mental Health proposed to be established in a forthcoming Executive Order. It is our opinion that he may not," acting Assistant Attorney General John Harmon wrote in a February 1977 memo to Carter White House Associate Counsel Douglas Huron.

An attached memo from Edwin Kneedler, now the most senior career attorney in the Office of the Solicitor General, concluded that an honorary post for Mrs. Carter would not run afoul of a law passed in 1967 and long perceived as a response to President John F. Kennedy's appointment of his brother Robert Kennedy as Attorney General.

"Although the matter is not wholly free from doubt, I do not believe that [the 1967 legislation] would prohibit Mrs. Carter from holding an essentially honorary position, such as Honorary Chairman, related to the Commission's work," wrote Kneedler.

The following month, Rosalynn Carter, was named to just such an honorary post.

"Although Mrs. Carter is serving as honorary chairperson of the Commission, she will be actively involved in all aspects of the Commission's work," a White House statement said.

At about the same time, Kneedler issued another opinion concluding that one of the Carters' sons could not volunteer to work for a White House staff member. Justice Department lawyers also essentially vetoed a plan to have the Carter son, apparently James Earl "Chip" Carter III, to work out of a West Wing office while doing work for the Democratic National Committee, the newly-disclosed records show.

In 1983, Justice Department lawyers appear to have dissuaded the Reagan White House from naming an unidentified Reagan family member to an advisory panel on private-sector volunteer efforts. "We think the proposal to have a member of the President's family serve actively on the Commission on Private Sector Initiatives raises virtually the same problems raised by Mrs. Carter's proposed service," Deputy Assistant Attorney General Robert Shanks wrote.

The documents released Monday also include the full text of a legal opinion Justice issued in 2009 to the Obama White House, concluding that the law did not permit the appointment of the president's half-sister Maya Soetoro-Ng to a commission on White House fellowships or the appointment of the president's brother-in-law Conrad Robinson to a commission on physical fitness. Soetoro-Ng appears to have quietly left the fellowships panel, which she had joined before the legal memo was finalized. Robinson was never named to the fitness board.

Just which relative or relatives President Richard Nixon wanted to appoint to the White House staff is unclear, but the Justice Department memo sent to the White House on the topic soon after the president's re-election in 1972 said the 1967 law against hiring relatives was "clearly applicable" to lower level White House positions. It said applying the law to more senior posts might raise Constitutional questions.

The opinion longtime Justice Department attorney Daniel Koffsky issued in January at the request of the incoming Trump administration concluded that another law passed in 1978 and conferring broad authority on the president to appoint White House officials essentially overrides the earlier anti-nepotism measure.

"We believe that the President's special hiring authority [in the 1978 law] permits him to make appointments to the White House Office that the anti-nepotism statute might otherwise forbid," Koffsky wrote in the opinion sent to White House Counsel Donald McGahn at his request.

Several ethics experts were critical of the January opinion.

"We think the law is ambiguous and that the safer course would've been to ask Congress to resolve the ambiguity," former White House ethics lawyers Norman Eisen and Richard Painter said in a joint statement at the time.

The existence of most of the legal memos issued to prior White Houses became known after the documents were cited in Koffsky's opinion, which was made public by the Trump administration shortly after it was formally issued on Inauguration Day. However, the text of the earlier opinions was not revealed at that time.

A lawyer for Kushner, Jamie Gorelick, had no immediate comment about the memos when contacted Monday night, but in January she welcomed the Justice Department's reversal.

"We believed that we had the better argument on this," Gorelick said. "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."

POLITICO requested the memos delivered to Obama and earlier presidents from the Justice Department last November, about week after Trump's election.

In a letter accompanying Monday's release, OLC attorney Paul Colborn said most of the memos were covered by attorney-client privilege or executive privilege applicable to advice rendered to the president or his aides. Colborn said the Justice Department was releasing the opinions "as a matter of discretion."

However, once Koffsky's opinion citing the earlier memos and their rationale was made public, the legal justification to keep them secret may have been undercut.