Donald Trump loves to say that his kids would run his company if he becomes president.
Jokes aside, both Trump or Hillary Clinton’s children are likely to loom large in Washington if their parent succeeds on Nov. 8. This raises an important question: what are the rules governing presidential nepotism? And perhaps more importantly: how might Clinton or Trump bend those rules?
Of course, if Hillary Clinton is installed in the White House, Bill would be right by her side as first man. And there is always the question of whether Chelsea Clinton, with her burgeoning political involvement, would want at least some ceremonial role in her mom’s administration.
Here’s a quick primer based on interviews with ethics experts and a review of the law. Limitations on employing relatives in the federal government are laid out in 5 U.S.C. 3110, which states that a public official may not “appoint, employ, advance, or advocate for” relatives in “the agency in which he is serving or over which he exercises jurisdiction or control.”
That would seem to preclude Trump — or Clinton — from hiring almost everyone in his inner circle to any job in the federal government. But, of course, there are exceptions — particularly if either candidate wants to push the legal envelope.
Here’s how they could do that, if so inclined.
- Trump or Clinton could arguably hire or nominate relatives (say, Don Jr. for Interior Secretary; or Chelsea as senior White House adviser) if those relatives decline a salary. There’s some disagreement over this — it’s a bit of a legal gray area — but would be an easy loophole for Trump to test.
- Trump or Clinton could pressure the Office of Personnel Management to issue regulations allowing the employment of prohibited individuals due to “unforeseen events or circumstances.” This is permitted under 5 U.S.C. 3110 (d), which states the individuals could be employed on a temporary basis “in the event of emergencies resulting from natural disasters” or similar events. There’s enough leeway that OPM regulations, depending on how they are worded, could provide enormous leeway for either president.
- Trump or Clinton could hire people in his circle of relatives who are not defined as relatives under the statute. Those could include people like Kushner’s brother Joshua, Trump’s ex-wives or more distant relations like second-cousins or relatives’ spouses.
- Trump or Clinton could use their influence to get prohibited individuals hired by other branches of government. Say Eric Trump or Chelsea Clinton were hired as an ad-hoc adviser to congressional leadership after the election. They could stay close to the president’s orbit while collecting a salary, and depending on the position, might even qualify for a security clearance in the bargain.
- Trump or Clinton could simply keep family members close by and involve them informally in White House business. Of course, if Clinton wins, Bill will have a window on all the action. But if Trump wins, someone like Ivanka Trump could take up residence at the White House and run the show without a salary or official title. To any critics, she’d simply be a “first daughter” enjoying the privilege of living with family. To insiders, however, she could be treated as a boss.
The strangest part about this is that there are few methods of recourse to prevent either president from taking these actions.
The U.S. Office of Special Counsel, charged with monitoring nepotism and other offenses at the federal level, might find it hard to claim jurisdiction over the president. The courts, an obvious limiting authority, might call a president’s hiring practices a “political question” and decline to weigh in. And a President Clinton or Trump could circumvent congressional disapproval with recess appointments.
No matter who wins, Washington’s in for a wild ride.