Let’s clear up some of the confusion. To put it simply, Trump has a lot of flexibility when it comes to staffing his transition. He has less flexibility when it comes to staffing his administration, though ethics experts said it will not be hard for him to bend rules.
To start, let’s look at Friday’s announcement that Donald Jr., Ivanka and Eric Trump, as well as Trump son-in-law Jared Kushner, will serve on the transition’s executive committee.
This is perfectly legal, though experts said they could not recall a precedent in modern presidential history. (The closest example is Hillary Clinton’s heavy involvement in her husband’s presidential transition after the 1992 election, though according to press reports at the time, she did not hold a formal position as Trump’s children do.)
This is legal because transition teams are not federal agencies. Though they operate with some federal support — office space and millions of dollars from the General Services Administration — they are set up as nonprofit organizations and must abide by those rules.
In short, Trump’s transition effort is not yet the Trump administration. Right now, it’s simply Trump for America, an extremely powerful 501(c)(4) group.
Now let’s consider the possibility that Trump will award his children roles in the administration.
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 from hiring family members for any job in the federal government. But, of course, there are exceptions — particularly if the president-elect wants to push the legal envelope.
Here’s how he could do that, according to ethics experts and a review of relevant statutes. (“45” covered this issue in early October with a post titled “Donald Trump Jr. for interior secretary?” which we’ll draw from here.)
- Trump could arguably hire or nominate relatives 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 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.
- Trump could hire people in his circle of relatives who are not defined as relatives under the statute. Those could include people such as Kushner’s brother Joshua, Trump’s ex-wives or more-distant relations such as second cousins or relatives’ spouses.
- Trump could use his influence to get prohibited individuals hired by other branches of government. Say Eric Trump was suddenly hired as an ad hoc adviser to Senate Majority Leader Mitch McConnell (R-Ky.). He 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.
These are all possible scenarios. But most likely of all is Trump’s option of keeping family members close by, treating them as advisers and informally involving them in presidential business. It’s hard to imagine Trump’s children won’t be frequent guests at the White House. If they’re in the building, there’s little to prevent them from joining the action, even if they’re running the Trump Organization at the same time.
There are few ways to stop this outcome.
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 personnel practices a “political question” and decline to weigh in.
As Rudolph W. Giuliani told CNN over the weekend: “You do realize that those laws don’t apply to the president, right?”
Alice Crites contributed to this report.