I spoke with Clark about anti-nepotism laws, why they exist, and how Kushner and Trump might get around this particular one. Our conversation is below, lightly edited for clarity and brevity.
WAPO: I think a casual observer may wonder why Trump’s son-in-law serving in his administration is a big deal. Why do such anti-nepotism laws exist, and why is nepotism a problem?
CLARK: We have anti-nepotism laws in the federal government and in lots of state governments, because the practice of hiring relatives undermines public confidence that the government official is actually finding best person for the job. What are the chances that the best person for the job just happens to be a relative, right? In addition to the problem of public confidence, hiring a relative also causes problems within the government organization. It can undermine the morale of government officials. It can cause confusion about what the lines of authority are; in other words, the relative may have a particular title, but many may perceive the relative’s role as even more important than the title would suggest. It may be very difficult to say no to the president’s son-in-law. It may be very difficult to say, ‘That’s a bad idea’ to the president’s son-in-law, in a way it would be easier to say those things to someone whom the president hired but isn’t related to — someone who’s not the father of his grandchild or grandchildren.
WAPO: The anti-nepotism law on the books is supposedly a reaction to the Kennedys. But was there an era in politics in which nepotism was a particularly bad problem?
CLARK: What I can tell you is that the federal statute is by no means unique. Almost all states have anti-nepotism laws. A review of state anti-nepotism laws in 2000 found only seven states lacked such laws. So it’s widely perceived as a problem that needs to be addressed by prohibiting the hiring of relatives.
CLARK: The crux of that decision was that the presidential spouse is a de facto officer or employee for purposes of the Federal Advisory Committee Act. And then, after [Judge Laurence] Silberman said that, he added dicta where he said, "We doubt Congress intended to include the White House under the anti-nepotism statute." Judge [James L.] Buckley on the D.C. Circuit concurred in the judgment, but refused to concur in the opinion, and specifically called out that passage and objected to it. So that part of the opinion, on which I suspect the Trump advisers will be relying, is absolutely dicta, and it’s, as I said, rejected by Judge Buckley.
WAPO: So basically, it’s not the law?
CLARK: Judge Silberman, who has rarely found a limitation on executive power appropriate, who has rarely met an executive power of the president that he hasn’t embraced, used this case to assert that Congress’s anti-nepotism statute shouldn’t apply to the White House — even though the statute names the president. And Judge Buckley said the argument that the anti-nepotism act applies only to departments and not to the White House is a weak one. That’s probably one of the things they will rely upon, and it’s a very weak argument.
WAPO: From what you have seen of his efforts, do you think Kushner is going to be able to get around this law?
CLARK: In your question, you asked is Kushner going to be able to get around this. And I want reframe the question: Is Trump going to be able to get around this, because I see this as Trump’s first attempt to ignore the law, act in violation of the law, and he’s going to see if he can get away with it. We have a statute that names the president, that names the son-in-law relationship, that Congress identified a problem and enacted a statute prohibiting a president from hiring a son-in-law. President-elect Trump, in my view, is testing the waters to see if he can get away with violating what I would call this government ethics provision. And whether President-elect Trump gets away with this depends, it seems to me, in part on the public response as well as the congressional response.…
We’ll see whether President Trump is required to follow the law or not. And so, I think this is enormously significant, because it’s an initial test of whether — we’ve seen as a candidate, Donald Trump has violated norms, and now we’re going to see whether he also plans to violate the law.