Almost as soon as Trump was declared the winner of the 2016 election, allegations of family favoritism began to emerge. Here's why the charges of nepotism are probably not going to go away but also not going to matter.
Many of us have looked upon the first weeks of the approaching Trump presidency with a great deal of concern. Laws which were once well-recognized are shrugged off. Things that were once prohibited have apparently been abandoned. The notion that president-elect would not do all in his power to avoid conflicts of interest now seems, for some reason, to be an archaic idea. It is now enough for Trump to make an imaginary blind trust in which his sons and daughter to run.
Nepotism as a Privileged Birthright
Another law that Trump is openly flaunting is the prohibition against nepotism, the hiring of relatives. You might ask why nepotism is considered a criminal offense when it is so routinely practiced in the business world.
Robert Wechsler, Director of Research for a non-profit organization called City Ethics, lays out the reasons why anti-nepotism laws exist in government in the first place.
- Nepotism includes many of the basic government ethics issues: conflict of interest, misuse of office, preferential treatment, and patronage.
- Nepotism undermines public trust by making government look like a family business run not for the community, but for the families in power.
- Nepotism is bad for morale within the government organization. It goes far beyond hiring. It remains a problem every time raises and promotions occur.
- Nepotism and its cousin, hiring friends, are the leading methods of keeping other ethnic and racial groups out of local government.
- Nepotism puts officials in an awkward position when they don't want to hire a relative, but feel it's expected of them. Nepotism laws protect officials as well as the public.
It's worth reviewing the federal law, namely, U.S. Code § 3110 - Employment of relatives; restrictions. Passed in 1967, it was mistakenly thought to be in response to President Kennedy hiring his own brother as Attorney General.
The law 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..."
There's little doubt that this law applies to Donald Trump. According to the legal perimeters and definitions, a “public official” means an officer (including the President and a Member of Congress).
A relative is, in case you are unclear, described as "an individual who is related to the public official as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, or half sister."
As exact as the law might sound, it might have been written on the wind.
In Defiance of the Law
The charges of Trump's nepotism popped up last week at a delicate time in the transition period. The UK Guardian reported:
On Thursday, his transition team handed out official photographs showing Trump with Japanese prime minister Shinzo Abe, in the gilded rooms and hallways at Trump Tower in New York. His elder daughter, Ivanka, and her husband Jared Kushner were in tow, neither of whom have national government security clearance.
At about the same time, news broke that Mr. Kushner had been seeking legal advice about possibly becoming an official part of the Trump administration. Critics immediately pointed out that that is expressly forbidden by anti-nepotism laws. In fact, president-elect Trump has probably already crossed that line.
The Washington Post reported:
The revelations follow a series of controversies involving Trump's family over the past week. First, Trump's lawyer said that the president-elect's fortune would be put in the hands of his three oldest children -- Donald Jr., Ivanka and Eric Trump. The following day, all three were named to Trump's transition team, helping him pick who will run his administration. Then it was reported that the high-level security clearances were being sought for those three children and Trump's son-in-law -- something the Trump campaign eventually denied.
Clearly, Trump has decided that he is above the law and doesn't intend to obey it.
A Flimsy Defense
Supporters of Trump claim that the anti-nepotism law doesn't apply to Trump. Why? Because Trump campaigned as a crusader cut from a different cloth. (That's the reasoning, anyway.)
“The key is, he is smashing norms and making his own, but that does not mean he is violating the law in any way,”
At least, that's the opinion of Robert Rizzi, a government compliance and ethics lawyer in Washington, used in the Guardian article.
In a Washington Post article, Rizzi noted that, when it comes to both nepotism and conflicts of interests, "the current ethics regime will have little impact on a hypothetical President-elect Trump."
Government ethics laws are woefully inadequate to curb abuse by presidents who ignore them. Even in the most clear-cut cases of violation, the law are largely unenforced.
Other defenders of President Trump are equally nonplussed. One ethic expert said that there's no problem as long as son-in-law Kushner and the Trump children are not federal employees, whether paid or unpaid, but are simply “hanging around the White House a lot."
This creates its own set of problems. How can government security be maintained when relatives are "hanging around" possibly privy to classified information, information that can be useful to foreign governments, useful for investors and damaging to private individuals?
Why are Trump's children automatically above suspicion?
Law-abiding Americans have every right to be appalled. Imagine, if you can, the reaction from conservatives if President Obama had drafted in relatives to take over positions in his administration. They would have gone down that well-worn path of threatening to impeach him. There would, doubtless, have been an investigation lasting years.
The impartial public might think that no administration has ever been so careless about following the law.
That's not quite accurate.
Nepotism in the Days of Bush
The fact is, Trump's violation of anti-nepotism laws is really only a more blatant form of what the last Republican administration did with slightly (but not much) more stealth. His supporters might be saying that Mr. Trump is "smashing the norms" but nothing could be further from the truth.
Every place you looked in the Bush years, there were nepotistic connections oozing from the cracks.
In late February 2002, Elizabeth "Liz" Cheney, the vice-president's daughter, was named deputy secretary of state.
Her husband Philip Perry, the son-in-law to the vice-president, had been working at the Justice Department. Perry became acting associate attorney general (the Department’s third-ranking official), overseeing DOJ's five civil litigating units: Civil, Tax, Environment and Natural Resources, Antitrust, and Civil Rights. (We will come back to him in a second.)
And around a week after Liz Cheney took a top position at the State Department, her husband became chief counsel for the Office of Management and Budget (OMB).
The Director of the OMB was Reagan-appointee Mitchell Daniels . He was also a member of the National Security Council and the Homeland Security Council. Meanwhile, Daniels' sister Deborah was the assistant attorney general and, according to her resume, related to the nation’s response to the September 11th attack.
We can be sure that the conversations at family reunions must have sounded like a Robert Ludlum novel.
In April 2005, President George Bush nominated Liz Cheney's husband, (remember Phil?) as general counsel of the Department of Homeland Security and despite all of the nepotism involved, he was approved unanimously by the U.S. Senate later that year.
If you think that's bad, well think again. That's only the beginning.
Under the Bush administration, the Justice Department offered plenty of examples of nepotism.
For example, the mother of Chuck James, assıstant attorney general of the antitrust dıvısıon, was Kay Coles James, the director of the office of Personnel Management from 2001 to 2005, and his father, Charles James, Sr. was the deputy Assistant Secretary of the Office of Federal Contract Compliance Programs (OFCCP) from 2001 to 2009.
That's a juicy morsel of hypocrisy too.
This part of the U.S. Department of Labor is responsible for ensuring that employers doing business with the Federal government comply with the laws and regulations requiring nondiscrimination.
The infamous Ted Cruz was the director of the Federal Trade Commission's office of policy planning and also was the hubby to the then-senior official in the U.S. Trade Representative's office, Heidi.
And the FCC commissioner Kevin Martin was married to Dick Cheney's former spokeswoman, Cathie Martin. The deputy assistant for domestic policy to Cheney, Nina Rees, was married to Matthew Rees, speechwriter for President Bush; the National Security Adviser, Condoleezza Rice and the U.S. Trade Representative, Robert Zoellick.
Take a breath.
Frankly, it would take a flowchart to keep track of all of the violations of nepotism in the Bush administration. However, that's not to say that any of these people were incompetent in their posts. The majority of them might have been perfectly suited for their jobs. The problem is, according to the law, they should have been candidates at all.
The punchline to all this incestuous politicking is that all of these people are the ones that form the swamp that Trump has (with the help of his family members) repeatedly vowed to clean up.
Business as Usual in Washington
When it comes to Trump's children, none of them have had any prior experience with government work. They cannot plausibly claim to be qualified to "hang around" the White House. They are where they are solely because Trump refuses to recognize the restrictions.
The same holds true for the other insurmountable problem facing Trump.
Granting for the moment that Trump can shoehorn his son-in-law into the White House, though, there remains the question of his proximity to Trump's finances.
His conflict of interest solution- the phony blind trust- clashes with his hiring of his children and his daughter's husband. In short, he wants to have it both ways and there's no legal way he can. So, he is quite willing, it would seem, to proceed in a more unethical manner.
And that's perhaps the most important aspect.
In a matter of a few weeks, Trump has demonstrated his contempt for this reasonable and long-standing prohibition, designed to limit the corruptive influence of nepotism. He has also shown that obvious conflicts between his business interests and his presidential responsibilities can and will be ignored, regardless of the public outcry. His critics believe they are already seeing how Trump will use his office to promote his business around the world.
Imagine what laws he will refuse to obey in six months time.
But when it comes to federal anti-nepotism laws, don't expect too much enforcement. Given what we have seen in the past, the enforcers in the Justice Department might themselves owe their positions to people who themselves chose to ignore the federal law.