MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether section 3110 of title 5, U.S. Code, which forbids a
public official from appointing a relative “to a civilian position in the agency . . .
over which [the official] exercises jurisdiction or control,” bars the President from
appointing his son-in-law to a position in the White House Office, where the
President’s immediate personal staff of advisors serve. We conclude that section
3110 does not bar this appointment because the President’s special hiring authority
in 3 U.S.C. § 105(a) exempts positions in the White House Office from section
A decision of the D.C. Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C. Cir.
1995) (per curiam), lays out a different, but overlapping, route to the same result.
According to the reasoning of Haddon, section 3110 does not reach an appointment
in the White House Office because section 3110 covers only appointments in
an “agency,” which the statute defines to include “Executive agenc[ies],” and the
White House Office is not an “Executive agency” within the definition generally
applicable to title 5. Although our analysis does not track every element of the
D.C. Circuit’s reasoning about the meaning of “Executive agency,” we believe
that Haddon arrived at the correct outcome and that our conclusion here—that,
because of the President’s special hiring authority for the White House Office,
section 3110 does not forbid the proposed appointment—squares with both the
holding and a central part of the analysis in that case
Essentially, appointing Kushner to Carson’s job at HUD would be entirely verboeten. And rightly so. Bunging him a couple of 100 k a year to offer direct advice is OK and also rightly so.
After all, Hillary was appointed to something about health care, wasn’t she?
But they’ll not stop complaining, obviously.