The relevant statutory provision about the appointment of close relatives in official functions is 5 U.S. Code §3110. The scope of this article is agencies and government jobs  in Washington DC. The prohibition relates to first degree relatives until the fourth degree (brothers, sisters, parents, children, uncles, aunts, cousins and nieces, as well as married partners (first and second degree) and stepchildren and - parents. Any public authority is definitely prohibited to appoint such family members or to promote them in government functions under his/her supervision or control. That seems to definitely apply to a son in law…

Before we answer that question: what will happen if such an appointment or promotion would occur? The statutory provision itself provides that the appointee may not have an entitlement to his/her salary or pay. However, furthermore one may argue that also the appointment itself is void. The article states: “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. An individual may not be appointed, employed, promoted, or advanced in or to a civilian position in an agency if such appointment, employment, promotion, or advancement has been advocated by a public official, serving in or exercising jurisdiction or control over the agency, who is a relative of the individual.”

In the context of Trump and his son in law as advisor in the White House the problem however is that it can be doubted that the relevant article also covers the White House.

The act specifically focuses on executive agencies (and the White House is no such agency); on an office, agency, or the establishment in the legislative branch (and that does not apply either to the White House); on an office, agency or other establishment in the judicial branch (nor does that apply to the White House); and on the government of Washington DC (and also that does not apply to the White House).

So, no statutory prohibition, but not all that is not prohibited may be sensible or an example of integrity.

And how about Trump’s businesses which he announced to hand over to his sons. And not to a so called blind trust, supervised and managed by an independent outsider, with Chinese wall between Trump and his businesses. The absence of such Chinese walls and the role for his children have triggered litigation. There is no hard legal (constitutional or statutory) provision prompting a blind trust, but precedent and integrity doe plead for such a solution. The litigation that has been announced is based upon art. 2, section 1, paragraph 7 of the US Constitution, which states that the President shall not receive any other emolument (other than his official compensation) from the United States, or any of them.  Whether this sketchy article also covers payment to the President’s businesses by US states or any foreign states is to be seen. Formally payments by a state to one of his companies is a payment for his businesses. And foreign states (and a lot of Trump’s business is also abroad which might create foreign policy issues) are not covered by this article in the constitution.

 Published on Law Blogs Maastricht