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January 16, 2017 / 18 Tevet, 5777

Posts Tagged ‘Kushner’

Does the Anti-Nepotism Statute Preclude Trump From Appointing Kushner?

Sunday, January 15th, 2017

The controversy over President-elect Donald Trump’s expected appointment of his son-in-law, Jared Kushner, as a senior adviser raises serious constitutional issues regarding the separation of powers. Congress, which holds the purse strings, may have the power to withhold the salary of a relative whom the president wants to hire, but it is doubtful whether Congress has the constitutional power to preclude the president — who heads the executive branch — from appointing whomever he chooses as a White House adviser. This is because the separation of powers limits the authority of any one branch to dictate to another how to conduct its government business. Accordingly, the Supreme Court of the United States does not feel bound by Congressional enactments regarding the recusal of judges for conflict of interest, or other rules of ethics enacted by Congress to constrain judicial activities. The question of when and how one branch intrudes on another is often a matter of degree, but each branch guards its independence jealously.

This constitutional issue may never reach the courts for three reasons. First, no one may have standing to challenge such a presidential appointment, especially if taxpayer money is not being spent on his salary. Second, the anti-nepotism statute can reasonably be interpreted to preclude only payment to relatives and not any pro-bono service they may render. Third, the statute can be, and has been, interpreted as not applying to White House staff.

There are two relevant provisions of the anti-nepotism statute that were enacted following President John Kennedy’s appointment of his brother, Robert, to be attorney general. The first prevents “public officials” from promoting a “relative” to a “civilian position in the agency in which he is serving or over which he exercises jurisdiction or control.” The second provides that “[a]n individual appointed…in violation of this section is not entitled to pay.” There is an apparent conflict between these two provisions, since the first appears to provide for an absolute prohibition against the appointment of relatives, whereas the second provides that if the relative is appointed, he cannot be paid.

In interpreting this poorly drafted statute, a court would have to decide whether Congress intended to prevent only the evil of relatives being paid for jobs for which they have been appointed by their kin, or whether Congress was actually trying to prevent presidents from seeking the advice and council of relatives. A court considering this statute, in the context of a constitutional argument based on separation of powers, might well interpret it narrowly to preclude only the payment of salaries. It might also find it inapplicable to White House staff members, who are not part of any “agency.” Indeed, one court, in considering Hillary Clinton’s appointment by her husband to direct the White House campaign for health care, suggested that the statute did not apply to executive advisers.

Courts generally interpret statutes, particularly those that are as unclear as this one, in a manner that avoids difficult constitutional questions. So I am relatively confident that President-elect Trump’s appointment of his son-in-law will not be successfully challenged.

Nor should it be, as a matter of sound policy. Whether one likes or dislikes a duly elected president, surely our chief executive should have the power to surround himself with anyone he believes, rightly or wrongly, can render sound advice. There are, of course, risks in the appointment of relatives. It would be more difficult for the president to fire his son-in-law – the husband of his daughter and father of his grandchildren – than it would be to fire a non-relative. But that is a factor any president should take into account in hiring a relative. I see no great institutional dangers in allowing such appointments, and I do see institutional dangers in prohibiting them.

No statute could, of course, preclude a president from seeking and relying on the advice of relatives. The only question is whether the relative can receive a formal – and in this case non-paying — appointment. There are advantages to a formal appointment: It requires the appointee to avoid conflicts of interest, and it promotes visibility and accountability.

So, let the president appoint his son-in-law to this important position as senior adviser, and let’s all hope, for the benefit of the country, that it is a wise decision. History has certainly judged President Kennedy positively for appointing his brother as attorney general. The two of them worked closely together to end the Cuban missile crisis, to promote civil rights and to carry out other policies that benefited the entire nation. The statute should be amended to permit the appointment of relatives, while maintaining the prohibition on the government paying them. That would avoid the evil of financially motivated nepotistic appointments, while preserving the benefits of allowing presidents to choose advisers whom they believe will be loyal and beneficial in serving the country.

Alan M. Dershowitz

Hillary Helps Trump Hire Son-in-Law Jared Kushner as White House Adviser

Tuesday, January 10th, 2017

President-elect Donald Trump’s son-in-law Jared Kushner, an Orthodox Jew, is slated to become senior adviser to the president, according to a Trump campaign announcement.

“Jared has been a tremendous asset and trusted advisor throughout the campaign and transition and I am proud to have him in a key leadership role in my administration,” Trump said in a statement.

Kushner was extremely effective in setting straight the Trump campaign’s course on several wobbly instances during the campaign and remained a critical behind the scenes asset for his father-in-law. He continued to be a major figure in Trump’s transition to the White House. However, the fact that Kushner, smart and wise and critical as he may be, is also family might raise legal questions.

Kushner’s lawyer, Jamie Gorelick, said in a statement that he is “committed to complying with federal ethics laws and we have been consulting with the Office of Government Ethics regarding the steps he would take.” It means, according to Gorelick, that Kushner will resign from his company, sell a substantial portion of his assets to a trust, and avoid getting involved in matters that impact his financial interests.

Still, according to NBC, Kushner’s post might be challenged based on a federal anti-nepotism law preventing government officials from hiring their relatives.

Congress passed the anti-nepotism law in 1967, probably to prevent a repeat of President Kennedy’s making his brother Robert Attorney General. The law also forbids congressmen to hire their wives – for which many lawmakers are probably grateful…

The federal anti-nepotism statute 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.”

The law defines “Public official” to include the president, and “relative” to include son-in-law, which is the challenge we mentioned above.

However, it can be argued that the definition of “agency” might not include the White House.

Enter Hillary Diane Rodham Clinton.

When President Bill Clinton appointed his wife as chair of a Task Force on National Health Care Reform in 1993, a lobbying group sued in DC Circuit Court.

The suit was not about nepotism, it was about transparency.

However, for whatever blessed reason, the court’s ruling including a short statement about the fact 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.”

Holy curlicues carved in chronicled constructions, Batman…

David Israel

The Jewish World Series: Home Run for Unison

Tuesday, March 12th, 2013

Baseball was on Rabbi Zvi Kahn’s mind as he headed from his home in Columbus, Ohio, to the nearby Jewish Community Center after Havdalah one Saturday night in May, three years ago. More accurately, a baseball tournament.

Rabbi Kahn is headmaster of Columbus Torah Academy, a Modern Orthodox day school (K-12) that was sponsoring a first-of-its-kind baseball tournament among four Jewish high schools over one long weekend in 2010. Earlier games on Thursday evening and Friday afternoon had drawn nice crowds of visiting parents and local fans, but the Motzaei Shabbat competition, starting at 10:30 pm, was the centerpiece of the tournament. Rabbi Kahn was worried that people wouldn’t show up.

He needn’t have worried.

As he drove up to the JCC, the site of the Columbus Baseball Invitational, he saw cars vying for parking spaces. “The parking lot was full,” he says.

“I had to park farther away, on a side street.”

The Saturday night crowd, the rabbi says, confirmed that the school’s decision to establish such a sports venture was a success, giving young frum athletes a chance to compete in a kosher atmosphere without Shabbat scheduling conflicts and with bleachers full of enthusiastic supporters.


The need for such a Shabbat-considerate—if not strictly shomer Shabbat—sports tournament was revealed last winter when the boys’ basketball team of Houston’s Beren Academy, a day school whose team had reached the semifinals in its league for small private and parochial schools, became the center of a national controversy. Beren nearly had to forfeit a game, and a shot at the championship, because the semifinal and final games were scheduled to be played on Shabbat. Following a firestorm of publicity, including support for the school from largely non-Christian celebrities and politicians, and sympathetic coverage by the Houston media, a Friday evening game was changed to Friday afternoon.

Beren won that semifinal; the final game was played Saturday night. The issue created a major kiddush Hashem, educating the wider public about the specifics of Sabbath observance and the sacrifices it sometimes entails.

“[The tournament] is very important to these kids and their families,” Rabbi Kahn says.

“If adults ignore what [teens] are interested in, we’re going to lose them,” says Dr. Tricia Rosenstein, a pediatrician and Torah Academy parent.

For most teens, especially in a Modern Orthodox milieu where athletics often plays a prominent role, competitive sports are a normal—and valued—part of adolescence. This is especially so in Columbus, home of the Ohio State Buckeyes, one of college football’s most successful teams, and of fans who continue their rabid interest as alumni. On Friday night, Torah Academy students can hear the sound of fans cheering at high school football games in their neighborhoods.

The students, frum but worldly, want the excitement and recognition that surround other—non-Jewish—schools’ sports programs, family members of the day school students say.

“Kids need something a little bigger than themselves to feel part of,” says Dr. Rosenstein. “Now,” she says, “they get to hear their own cheering.”

“Athletics, like academics, provides the challenges that help shape both the mind and body,” according to the day school’s sports blog (ctaathletics.blogspot.com). “Many studies show that qualities such as commitment and desire drive our students to compete and excel in the classroom, on the field and later, in their chosen professions.” Which is why the school said yes when Steve Guinan, a baseball coach and English teacher at Torah Academy, asked whether a baseball tournament among similar Modern Orthodox institutions is feasible.


Word went out over the Internet and several schools expressed interest.

First at bat were Chicago’s Ida Crown Jewish Academy, Manhattan’s Ramaz School and the Kushner Hebrew Academy in Livingston, New Jersey. The initial Columbus Baseball Invitational—renamed the Jewish World Series—was born within a few months. The 2012 tournament included Ramaz, Ida Crown, Yeshiva Atlanta, Kushner and Rabbi Alexander S. Gross High School in Miami. A tournament is scheduled for this coming spring as well.

“We thought it would be more local, limited to schools closer to Columbus,” says Coach Guinan. To his surprise, more distant schools signed up for the tournament, which takes place after end-of-year exams are over.


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