As President-elect Donald Trump was huddling Thursday in the Oval Office with President Barack Obama, his son-in-law was on the other side of the windows, strolling the South Lawn with Obama’s top aide Denis McDonough.
The sight of Jared Kushner, a publisher and businessman, pacing the grounds with Obama’s chief of staff left many speculating the husband of Ivanka Trump was in line to assume a top West Wing role come January.
After all, Kushner, 35, played a central, if undefined, role in Trump’s campaign. He was seen as a shadow campaign manager, orchestrating key events while maintaining a trusted line of communication to the temperamental candidate.
The same is true for Trump’s three adult children: Donald Jr, Eric, and Ivanka. Along with Kushner, all were listed as members of Trump’s Presidential Transition Team Executive Committee in a shakeup of the organization on Friday.
But any further ambitions to serve their father in an official capacity during his presidency may be curtailed by federal law. A statute passed in 1967 states no public official — from the President down to a low-level manager at a federal agency — may hire or promote a relative. The law was regarded as a rebuttal to President John F. Kennedy’s appointment of his brother Robert as attorney general.
Kushner, who is related to Trump by marriage but not blood, would still be ineligible. The law specifies “son-in-law” as a type of relative covered by the rule.
Trump’s other children would similarly be barred from holding posts in a Trump cabinet, or in the West Wing. Trump named Ivanka as a potential cabinet appointee during the campaign when asked which women he might select as part of his team. Donald Trump Jr. has been mentioned as a potential Interior secretary.
There could be ways to skirt the ban. The law reads that any appointee found to have violated the law is “not entitled to pay” by the federal government, raising the notion that Kushner or Trump’s children could forgo paychecks while still serving the administration.
But doing so would risk putting their decisions on shaky legal ground, experts say.
“While it’s true that the penalty for violation of the statute is just to withhold salary or other financial remuneration from the wrongfully appointed employee, there’s also the possibility that any action taken by such a wrongfully appointed employee could be subject to legal challenge and potentially even be voidable,” said Steve Vladeck, a CNN contributor and professor of law at the University of Texas School of Law.
That would be a risky proposition for a chief of staff, who is the highest-ranking decision-maker in the West Wing aside from the president himself. If Kushner or Trump’s children assume less-specific “senior adviser” roles in Trump’s White House, their individual actions may be less apparent.
Trump’s relatives could serve in other roles in Washington, as long as they’re not under the executive branch umbrella. They could take jobs on Capitol Hill, acting as a go-between for their father’s administration and lawmakers. Or they could be appointed as the heads of task forces, as Hillary Clinton was during her husband’s administration.
Or Trump could appoint them to his administration as a challenge to the law, which some believe is an unconstitutional check on a president’s power.
That, however, would almost certainly set up a prolonged court battle at the beginning of Trump’s term in office, a distraction as he works to implement his campaign promises.