Apparently it all depends on the legal specifics of the person's role. If I've understood things correctly (but I haven't looked too
deeply), the relevant legal provision states that
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.
The definition of a public official includes the Presidency, so it applied to Bill Clinton and applies to Trump. The definition of "relative" includes son-in-law, so it applies to Kushner, and you'd certainly think it would include wife (i.e. Hillary, at the time), right?
So that leaves the definition of what counts as an "agency" which the President "exercises jurisdiction or control" etc over. It apparently covers:
- an Executive agency;
- an office, agency, or other establishment in the legislative branch;
- an office, agency, or other establishment in the judicial branch; and
- the government of the District of Columbia
This is where the loopholes enter the equation, I guess, whether for presidents' wives or sons-in-law. Bill Clinton appointed Hillary
to chair a "Task Force on National Health Care Reform". Does a Task Force constitute "an executive agency"? Hellfino, but I could see that kind of thing being used to go around the law.
According to that NPR article I just linked, things get trickier still:
almost as a passing mention in the D.C. Circuit's 1993 opinion [on whether Hillary's task force had to publicly disclose records], the court said that the federal anti-nepotism statute does not appear to cover staff in the White House or in the Executive Office of the President. Judge Laurence Silberman wrote, "So, for example, a president would be barred from appointing his brother as attorney general, but perhaps not as a White House special assistant."
So there's an opening for Jared Kushner too... except that "there's plenty of disagreement in the legal community about whether that bit from Judge Silberman's opinion is legally binding because it wasn't part of the reasoning for the central holding in the case."
Okay. On Trump's sort-of bright side:
Courts have also held in the past that parts of the Executive Office of the President are not agencies when it comes to the Freedom of Information Act, but it's unclear whether those legal precedents would be controlling when applied to the anti-nepotism statute.
Wait, that's not all! There's another part to that relevant legal provision in the anti-nepotism law, apparently:
An individual appointed, employed, promoted, or advanced in violation of this section is not entitled to pay, and money may not be paid from the Treasury as pay to an individual so appointed, employed, promoted, or advanced.
So, basically ... this provision explicitly allows for the possibility of, say, the President violating the other provision, and just insists that, in such a case, the person in question isn't paid? So the First Lady or First Son-In-Law (etc) could just be taken on in an unpaid position instead? Or is this provision merely an enforcement mechanism (ie any person who was appointed in violation of the other provision has to resign and
pay back any salary he received)?