Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office

Application of the Anti-Nepotism Statute to a

Presidential Appointment in the White House Office

Section 105(a) of title 3, U.S. Code, which authorizes the President to appoint employees in the White

House Office “without regard to any other provision of law regulating the employment or compen-

sation of persons in the Government service,” exempts positions in the White House Office from the

prohibition on nepotism in 5 U.S.C. § 3110.

January 20, 2017

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

3110.

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 appoint-

ment 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.

I.

Section 105(a) of title 3 authorizes the President “to appoint and fix the pay of

employees in the White House Office without regard to any other provision of law

regulating the employment or compensation of persons in the Government

service,” as long as the employees’ pay is within listed salary caps. 3 U.S.C.

§ 105(a)(1). These employees are to “perform such official duties as the President

may prescribe.” Id. § 105(b)(1). We understand that most White House Office

employees are appointed under section 105 or a similar hiring authority, such as

3 U.S.C. § 107 (the authorization for domestic policy staff). See Authority to

Employ White House Office Personnel Exempt from the Annual and Sick Leave

1

Opinions of the Office of Legal Counsel in Volume 41

Act Under 5 U.S.C. § 6301(2)(x) and (xi) During an Appropriations Lapse, 36 Op.

O.L.C. __, at *5 (Apr. 8, 2011), https://www.justice.gov/olc/opinions; Authority to

Employ the Services of White House Office Employees During an Appropriations

Lapse, 19 Op. O.L.C. 235, 236 (1995). Such employees are the President’s

“immediate personal staff” and work in close proximity to him. Meyer v. Bush,

981 F.2d 1288, 1293 & n.3 (D.C. Cir. 1993). The appointment at issue here, we

understand, would be under 3 U.S.C. § 105(a).

Section 3110 of title 5, also known as the anti-nepotism statute, 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.” 5 U.S.C. § 3110(b).

The statute expressly identifies the President as one of the “public official[s]”

subject to the prohibition, and a son-in-law is a covered “relative.” Id.

§ 3110(a)(2), (a)(3). Moreover, under Article II of the Constitution, the President

exercises “jurisdiction or control” over the White House Office as well as over the

rest of the Executive Branch. See Myers v. United States, 272 U.S. 52, 163–64

(1926); Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977). Less certain is

whether the White House Office is an “agency”—a term that section 3110 defines

to include an “Executive agency,” thereby calling up the definition of “Executive

agency” generally applicable to title 5, see 5 U.S.C. § 3110(a)(1)(A); id. § 105.

But whether or not the White House Office meets this definition (a subject to

which we will return in Part II, infra), we believe that the President’s special

hiring authority in 3 U.S.C. § 105(a) permits him to make appointments to the

White House Office that the anti-nepotism statute might otherwise forbid.

Section 3110 prohibits the appointment of certain persons to positions of em-

ployment in the federal government. It is therefore a “provision of law regulating

the employment . . . of persons in the Government service.” 1 Under section 105(a),

the President can exercise his authority to appoint and fix the pay of employees in

the White House Office “without regard to” such a law. 3 U.S.C. § 105(a)(1). This

authority is “[s]ubject” only to the provisions of subsection (a)(2), which limit the

number of White House employees the President may appoint at certain pay

levels. See id. § 105(a)(2). Thus, according to the most natural and straightforward

reading of section 105(a), the President may appoint relatives as employees in the

White House Office “without regard to” the anti-nepotism statute.

This reading of the two statutes gives section 105(a) a meaning no more sweep-

ing than its words dictate. The ordinary effect of “without regard” language is to

1

Subsection (c) of section 3110, which states that an individual appointed, employed, promoted, or

advanced in violation of the statute’s prohibition is “not entitled to pay,” 5 U.S.C. § 3110(c), may also

make section 3110 a “provision of law regulating the . . . compensation of persons in the Government

service” rendered inapplicable by section 105(a).

2

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

negate the application of a specified class of provisions. In American Hospital

Association v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987), for example, the D.C.

Circuit declared that the “plain meaning” of a “without regard” exemption, which

there enabled the Secretary of Health and Human Services (“HHS”) to carry out

his contracting authority “without regard to any provision of law relating to the

making, performance, amendment or modification of contracts of the United

States,” was “to exempt HHS from . . . the vast corpus of laws establishing rules

regarding the procurement of contracts from the government,” although not from

the requirements of the Administrative Procedure Act. Id. at 1054; see also

Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir. 2016) (holding that a

statutory direction to issue a rule “without regard to any other provision of statute

or regulation that applies to issuance of such rule” effectively changed the

Endangered Species Act); Alliance for the Wild Rockies v. Salazar, 672 F.3d 1170,

1174–75 (9th Cir. 2012) (reaching the same conclusion about a direction to issue a

rule “without regard to any other provision of statute or regulation”); cf. Crowley

Caribbean Transport, Inc. v. United States, 865 F.2d 1281, 1282–83 (D.C. Cir.

1989) (noting, in interpreting an authorization to the President to take certain

action “notwithstanding any other provision of this chapter or any other Act,” that

a “clearer statement is difficult to imagine,” and declining to “edit” the language to

add an implied exemption).

Applying the “without regard” language, our Office has interpreted section

105(a) as a grant of “broad discretion” to the President “in hiring the employees of

[the White House Office]”; the provision, we have said, “reflect[s] Congress’s

judgment that the President should have complete discretion in hiring staff with

whom he interacts on a continuing basis.” Applicability of the Presidential

Records Act to the White House Usher’s Office, 31 Op. O.L.C. 194, 197 (2007);

see also Memorandum for Bernard Nussbaum, Counsel to the President, from

Daniel L. Koffsky, Acting Assistant Attorney General, Office of Legal Counsel,

Re: Presidential Authority under 3 U.S.C. § 105(a) to Grant Retroactive Pay

Increases to Staff Members of the White House Office at 2–3 (July 30, 1993)

(section 105(a)’s “sweeping language” gives the President “complete discretion”

in adjusting pay of White House Office employees “in any manner he chooses”).

That congressional intent is manifest in the House and Senate committee reports

accompanying the 1978 legislation by which Congress enacted section 105(a). See

Pub. L. No. 95-570, 92 Stat. 2445 (1978). Both reports state that the language

“expresses the committee’s intent to permit the President total discretion in the

employment, removal, and compensation (within the limits established by this bill)

of all employees in the White House Office.” H.R. Rep. No. 95-979, at 6 (1978)

(emphasis added); S. Rep. No. 95-868, at 7 (1978) (same). Aside from the

reference to the compensation limits in subsection (a)(2), that statement is

qualified only by the committees’ explanation that section 105(a) “would not

excuse any employee so appointed from full compliance with all laws, executive

3

Opinions of the Office of Legal Counsel in Volume 41

orders, and regulations governing such employee’s conduct while serving under

the appointment.” H.R. Rep. No. 95-979, at 6; S. Rep. No. 95-868, at 7 (same).

One piece of section 105(a)’s legislative history does point the other way.

During the House subcommittee hearing, the General Counsel to the President’s

Reorganization Project at the Office of Management and Budget (“OMB”)

testified that the language exempting the White House Office (along with other

entities in the Executive Office of the President) from the usual rules on hiring

and compensation “would not exempt [these entities] from the restrictions under

the nepotism statute because of the specific provisions of that act which apply to

the President.” Authorization for the White House Staff: Hearings Before the

Subcomm. on Employee Ethics and Utilization of the H. Comm. on Post Office

and Civil Service, 95th Cong. 20 (1978) (“Authorization for the White House

Staff”) (testimony of F.T. Davis, Jr.). Even if we were prepared to reach a

different understanding of section 105(a)’s text based on a single witness

statement, but see S&E Contractors, Inc. v. United States, 406 U.S. 1, 13 n.9

(1972) (“In construing laws we have been extremely wary of testimony before

committee hearings . . . .”), this particular statement does not offer a persuasive

basis on which to do so. Although no member of the subcommittee disputed the

OMB official’s interpretation, it is far from clear whether the members (and

later, the authors of the House and Senate reports) ultimately endorsed his view

about the language. The OMB official offered his interpretation after the

subcommittee chair asked about the language’s effect on a number of federal

laws and authorities, including “the Hatch Act, nepotism law, criminal conflict

of interest laws, [and] Executive Order 11222 regulating employee conduct”; the

chair explained that she was asking in order to draft the committee report.

Authorization for the White House Staff at 20 (question of Rep. Schroeder). But

while another of the witness’s assertions ultimately made it into the committee

reports—his statement that the language would not affect any laws “dealing with

conduct by public officials once they are appointed,” id. (testimony of Mr.

Davis), see also H.R. Rep. No. 95-979, at 6; S. Rep. No. 95-868, at 7—his

comment about the anti-nepotism statute did not. Cf. Gustafson v. Alloyd Co.,

513 U.S. 561, 580 (1995) (“If legislative history is to be considered, it is

preferable to consult the documents prepared by Congress when deliberating.”).

Moreover, the rationale the OMB official offered for his interpretation—that

“specific provisions” of section 3110 “apply to the President”—is not particular-

ly convincing. Because the President exercises “jurisdiction or control” over the

entire Executive Branch, section 3110, by its express terms, would seemingly

apply to the President’s filling of numerous positions in federal agencies, even if

the “without regard to any other provision of law” language carved out a handful

of entities in the Executive Office of the President, such as the White House

Office. Cf. Ass’n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898,

905 (D.C. Cir. 1993) (“AAPS”) (suggesting a reading of section 3110 under

4

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

which “a President would be barred from appointing his brother as Attorney

General, but perhaps not as a White House special assistant”).

In our view, therefore, section 105(a) exempts presidential appointments to the

White House Office from the scope of the anti-nepotism statute.

II.

Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), also bears on

the question here and might appear to resolve it, albeit through a different route.

Relying on arguments that would apply equally to the White House Office,

Haddon held that the Executive Residence at the White House is not an “Execu-

tive agency” within the title 5 definition. Id. at 1490. Because the prohibition in

section 3110 applies, as relevant here, only to appointments in “Executive

agenc[ies],” Haddon seems to compel the conclusion that the bar against

nepotism would not extend to appointments in the White House Office. Rein-

forcing this conclusion, though resting on other grounds, an earlier opinion of

the D.C. Circuit had expressed “doubt that Congress intended to include the

White House” as an “agency” under section 3110. AAPS, 997 F.2d at 905; but

see id. at 920–21 (Buckley, J., concurring in the judgment) (disputing that

interpretation of “agency”).

The matter, however, is somewhat more complicated. Not every part of the

reasoning in Haddon is entirely persuasive, and the court’s rationale extends more

broadly than necessary, in our view, to address the question now at hand. Nonethe-

less, we believe that Haddon lends support to our conclusion that the President

may appoint relatives to positions in the White House Office.

Haddon held that the Executive Residence, which like the White House Office

has a staff appointed under title 3, see 3 U.S.C. § 105(b), is not an “Executive

agency” within the title 5 definition. Haddon was considering 42 U.S.C. § 2000e-16,

which extends the antidiscrimination provisions of Title VII of the Civil Rights Act

of 1964 to employees or applicants for employment “in executive agencies as

defined in [5 U.S.C. § 105].” 42 U.S.C. § 2000e-16(a). Under that definition (the

same one that governs section 3110), an “Executive agency” means “an Executive

department, a Government corporation, and an independent establishment.” 5 U.S.C.

§ 105. Because the Executive Residence, like the White House Office, is plainly not

an “Executive department” or a “Government corporation,” see id. §§ 101, 103, the

issue in Haddon came down to whether the Executive Residence is an “independent

establishment,” see id. § 104.

The D.C. Circuit had two reasons for concluding that the Executive Residence

is not an independent establishment and therefore not an Executive agency under

5 U.S.C. § 105. First, the court observed that another statute, 3 U.S.C. § 112,

authorizes “[t]he head of any department, agency, or independent establishment of

the executive branch of the Government [to] detail, from time to time, employees

5

Opinions of the Office of Legal Counsel in Volume 41

of such department, agency, or establishment to the White House Office, the

Executive Residence at the White House, the Office of the Vice President, the

Domestic Policy Staff, and the Office of Administration.” In the court’s view, this

phrasing suggested that the listed entities in the Executive Office of the President

are not themselves “department[s], agenc[ies], or independent establishment[s].”

Haddon, 43 F.3d at 1490 (“That Congress distinguished the Executive Residence

from the independent establishments, whatever they may be, suggests that

Congress does not regard the Executive Residence to be an independent estab-

lishment, as it uses that term.”). Second, the court said that title 5 of the U.S. Code

“relates to government organization and employees and prescribes pay and

working conditions for agency employees,” while title 3 of the Code “addresses

similar concerns with respect to the President’s advisors and the staff of the

Executive Residence.” Id. The incorporation of the title 5 definition in section

2000e-16, the court explained, suggests that Congress intended the statute to cover

only “title 5” positions—not positions provided for in 3 U.S.C. § 105 and other

title 3 authorities. Id. 2

The D.C. Circuit’s first reason may be the less convincing of the two. The

wording of the detail statute, 3 U.S.C. § 112, “distinguish[es]” between the

sending and receiving entities only insofar as the sending entities are identified

generically, while the small group of entities that may receive details, including

the Executive Residence and the White House Office, are specifically named. This

wording might well be an apt way to authorize a detail without implying anything

about the status of the receiving entities. Indeed, Congress elsewhere used similar

constructions to provide for transfers between executive departments. Section

2256 of title 7, U.S. Code, declares that the “head of any department” may

“transfer to the Department [of Agriculture]” funds to perform certain inspections,

analyses, or tests. Similarly, under 22 U.S.C. § 2675, the Secretary of State may

“transfer to any department” certain “funds appropriated to the Department of

State.” The generic references to “departments” on one side of these transactions

could not be read to imply that the entities on the other side, the Departments of

Agriculture and State, are not “departments.”

The court’s second argument seems stronger, although the court stated it

more broadly than the facts of Haddon required. The court apparently viewed

the provisions in title 3 as creating a complete substitute for title 5: “while

Title 5 relates to government organization and employees and prescribes pay and

working conditions for agency employees, Title 3 addresses similar concerns

2

Shortly after Haddon, Congress passed the Presidential and Executive Office Accountability Act,

Pub. L. No. 104-331, 110 Stat. 4053 (1996), which expressly applies Title VII and other federal civil

rights and workplace laws to entities in the Executive Office of the President, including the White

House Office and the Executive Residence. See id. § 2(a) (relevant provisions codified at 3 U.S.C.

§§ 401, 402, 411).

6

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

with respect to the President’s advisors and the staff of the Executive Resi-

dence.” Haddon, 43 F.3d at 1490 (citation omitted). The court then quoted, in a

parenthetical, the “without regard” provision for hiring in the Executive

Residence that exactly parallels the one for the White House Office. Id. (quoting

3 U.S.C. § 105(b)(1)). Inasmuch as the plaintiff in Haddon claimed that he had

been unlawfully passed over for promotion—that he had not been appointed to a

higher position with higher pay—his claim had to do with exactly the subjects

identified in 3 U.S.C. § 105(b)(1), “employment or compensation of persons in

the Government service.” Section 105(b)(1) could therefore be understood to

displace the restrictions in Title VII, even if title 3 did not completely displace

all of title 5. Thus, the court’s broader statements about the relationship of title 3

and title 5, though not dicta, went further than necessary to decide the case and

further than we need to go here.

In any event, our conclusion above—that the President’s special hiring au-

thority in 3 U.S.C. § 105(a) allows him to appoint relatives to the White House

Office without regard to section 3110’s bar against nepotism—is consistent with

the holding in Haddon and with the court’s reliance on the parallel language in

3 U.S.C. § 105(b)(1). In accordance with Haddon, we believe that the White

House Office is not an “Executive agency” insofar as the laws on employment

and compensation are concerned. Both the “without regard” language of section

105(a) and the general treatment of the White House Office under title 3 instead

of title 5 undergird this conclusion. 3 Having conformed our analysis, to this

extent, with the only authoritative judicial guidance bearing on this question, we

have no need to delve into the issue whether the White House Office should be

considered outside of title 5 for all purposes whenever the application of that

title is confined to “Executive agenc[ies].” 4

3

We do not address the application of section 3110 to any other component of the government.

4

We have observed before that the D.C. Circuit’s reasoning in Haddon would seemingly extend to

other entities listed in section 112 with special hiring authorities under title 3, including the White

House Office. See Memorandum for Gregory B. Craig, Counsel to the President, from David J. Barron,

Acting Assistant Attorney General, Office of Legal Counsel, Re: Application of 5 U.S.C. § 3110 to Two

Proposed Appointments by the President to Advisory Committees at 18 (Sept. 17, 2009); Application of

18 U.S.C. § 603 to Contributions to the President’s Re-Election Committee, 27 Op. O.L.C. 118, 118

(2003) (“Section 603 Opinion”). In one circumstance, however, because of features “unique” to the

statutory scheme at issue—the Hatch Act Reform Amendments of 1993 (“HARA”)—we have found

that the White House Office should be treated as an “Executive agency” under title 5 notwithstanding

Haddon. See Section 603 Opinion, 27 Op. O.L.C. at 119 (White House Office employees may make

contributions to a President’s authorized re-election campaign by virtue of an exception available to

employees in an “Executive agency”).

Section 603 of title 18 prohibits “an officer or employee of the United States or any department or

agency thereof” from “mak[ing] any contribution . . . to any other such officer, employee or person . . .

if the person receiving such contribution is the employer or employing authority of the person making

the contribution.” 18 U.S.C. § 603(a). But section 603(c) exempts from liability “employee[s] (as

defined in section 7322(1) of title 5)”—meaning, employees subject to HARA. Section 7322(1), in

7

Opinions of the Office of Legal Counsel in Volume 41

III.

Our Office, on several occasions, has addressed the application of section 3110

to presidential appointments, including appointments to the White House Office

and other entities within the Executive Office of the President. Although our

conclusion today departs from some of that prior work, we think that this depar-

ture is fully justified. Our initial opinions on the subject drew unwarranted

inferences about Congress’s intent from a single witness statement in a congres-

sional hearing. Moreover, the surrounding legal context has been transformed by

the subsequent enactment of section 105(a), which expressly and specifically

addresses employment within the White House Office, and also by the D.C.

Circuit’s decision in Haddon.

A.

Section 3110 was enacted in 1967. In a 1972 memorandum, our Office con-

cluded that the statute would bar the President from appointing a relative “to

permanent or temporary employment as a member of the White House staff.”

Memorandum for John W. Dean, III, Counsel to the President, from Roger C.

Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Applicability

to President of Restriction on Employment of Relatives at 1 (Nov. 14, 1972)

(“Cramton Memo”). The Cramton Memo is brief but unequivocal: section 3110,

we said, “seems clearly applicable to . . . positions on the White House staff.” Id.

at 2.

In 1977, we advised that section 3110 would preclude the President from

appointing the First Lady to serve as chair of the President’s Commission on

turn, defines “employee” as “any individual, other than the President and the Vice President, employed

or holding office in . . . an Executive agency.” 5 U.S.C. § 7322(1)(A). Several considerations led us in

our Section 603 Opinion to confirm a prior opinion treating the White House Office as an “Executive

agency” for purposes of section 7322(1), see Whether 18 U.S.C. § 603 Bars Civilian Executive Branch

Employees and Officers from Making Contributions to a President’s Authorized Re-Election Campaign

Committee, 19 Op. O.L.C. 103 (1995). First, there would be “no purpose” for section 7322(1)’s express

exclusion of the President and the Vice President if they were not understood to be “holding office

in . . . an Executive agency.” Section 603 Opinion, 27 Op. O.L.C. at 119. Second, the exception to

HARA’s substantive prohibition on partisan political activity in 5 U.S.C. § 7324(b)(2)(B)(i) applies to

“employee[s] paid from an appropriation for the Executive Office of the President,” further reflecting

HARA’s assumption that such employees are otherwise covered. Section 603 Opinion, 27 Op. O.L.C.

at 119. Third, reading section 7322(1) to exclude employees of the White House Office “might be

thought to produce highly anomalous results,” as it would follow that White House employees “would

be entirely free from the restrictions of [HARA]” and “would be able to engage in all sorts of partisan

political activity,” including by “us[ing] [their] official authority or influence for the purpose of

interfering with or affecting the result of an election,” see 5 U.S.C. § 7323(a)(1). Section 603 Opinion,

27 Op. O.L.C. at 119. Thus, we determined that there are “powerful reasons to conclude that the term

‘Executive agency’ in section 7322(1) does not have the same meaning that section 105 of title 5

generally assigns it (and that cases like Haddon recognize) for the purpose of title 5.” Id.

8

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

Mental Health (“Mental Health Commission”), whether with or without com-

pensation. See Memorandum for Douglas B. Huron, Associate Counsel to the

President, from John M. Harmon, Acting Assistant Attorney General, Office of

Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the

Commission on Mental Health (Feb. 18, 1977) (“Mental Health Commission

Memo I”) (referencing attached Memorandum for John M. Harmon, Acting

Assistant Attorney General, Office of Legal Counsel, Re: Legality of the

President’s Appointing Mrs. Carter as Chairman of the Commission on Mental

Health (Feb. 17, 1977) (“Mental Health Commission Memo II”)). We deter-

mined that the Mental Health Commission, which would be established by

executive order and assigned specific authorities, would “clearly” qualify as an

independent establishment within the “comprehensive” meaning of that term.

Mental Health Commission Memo I. Our analysis noted, however, that the

funding for the Commission would come from an annual appropriation for the

Executive Office of the President covering “Unanticipated Needs,” and we

accordingly considered the effect of language in that appropriation that,

presaging section 105(a), authorized the President to hire personnel “without

regard to any provision of law regulating employment and pay of persons in the

Government service.” Mental Health Commission Memo II, at 5–6. We ulti-

mately concluded that the appropriation language did not override section 3110.

Although we did not say that the Mental Health Commission would be located

in the White House Office specifically, our analysis suggested that our conclu-

sion about the appointment would have been the same, whether or not the

position was located there. See id.

Shortly afterward, the White House asked us to answer that very question:

whether section 3110 applied to the contemplated appointment of the President’s

son to serve as an unpaid assistant to a member of the White House staff. See

Memorandum for the Attorney General from John M. Harmon, Acting Assistant

Attorney General, Office of Legal Counsel, Re: Employment of Relatives Who

Will Serve Without Compensation (Mar. 23, 1977) (“White House Aide Memo

I”) (referencing attached Memorandum for John M. Harmon, Acting Assistant

Attorney General, Office of Legal Counsel, Re: Appointment of President’s Son

to Position in the White House Office (Mar. 15, 1977) (“White House Aide

Memo II”)). The Civil Service Commission, the predecessor of the Office of

Personnel Management, had advanced several arguments why section 3110 did

not forbid the President’s appointment of relatives to his personal staff. See

White House Aide Memo I, at 1. Reaffirming the points made in the Mental

Health Commission Memos, however, our Office concluded that the statute also

covered the proposed appointment. Once again, we rejected an argument that the

language in the annual appropriation for the White House Office (i.e., the

“without regard” language) exempted those appointments from section 3110.

White House Aide Memo II, at 1–3.

9

Opinions of the Office of Legal Counsel in Volume 41

In 1983, we were asked whether the President could appoint a relative to a

Presidential Advisory Committee on Private Sector Initiatives (“CPSI”). See

Memorandum for David B. Waller, Senior Associate Counsel to the President,

from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal

Counsel, Re: Appointment of Member of President’s Family to Presidential

Advisory Committee on Private Sector Initiatives (Feb. 28, 1983). We answered

that the President’s proposed appointment of a relative to the CPSI raised “virtual-

ly the same problems raised by Mrs. Carter’s proposed service on the President’s

Commission on Mental Health.” Id. at 2. Because we lacked “sufficient time to

reexamine the legal analysis contained in our earlier memoranda,” we stated that

we had no choice but to “adhere to the conclusion” that “the President cannot,

consistently with section 3110, appoint a relative as an active member of such a

Commission.” Id.

Most recently, we advised whether the President could appoint his brother-in-

law and his half-sister to two advisory committees. Once again, we found that

section 3110 precluded the appointments. See Memorandum for Gregory B. Craig,

Counsel to the President, from David J. Barron, Acting Assistant Attorney

General, Office of Legal Counsel, Re: Application of 5 U.S.C. § 3110 to Two

Proposed Appointments by the President to Advisory Committees (Sept. 17, 2009)

(“Barron Opinion”). In the course of that analysis, we considered whether one of

the committees, the President’s Commission on White House Fellowships

(“Fellowships Commission”), was located within the Executive Office of the

President or was instead a free-standing establishment within the Executive

Branch. Id. at 14–15. 5 Concluding that, either way, the Fellowships Commission

was, or was within, an “independent establishment” falling within the title 5

definition of Executive agency, we did not decide the question. Id. But we

explicitly rejected the possibility that the Fellowships Commission constituted a

part of the White House Office. Id. at 14. As a result, the Barron Opinion had no

occasion to reapply or reconsider our precedents finding that section 3110 barred

the President from appointing relatives to White House Office positions. See id.

at 18–19 (distinguishing Haddon).

B.

Although none of our previous opinions analyzed the interaction between

3 U.S.C. § 105(a) and the anti-nepotism statute, our 1977 memoranda did consider

the effect of language in annual appropriations for the Executive Office of the

5

We concluded that the other advisory committee at issue, the President’s Council on Physical

Fitness and Sports, constituted part of the Department of Health and Human Services. Barron Opinion

at 9. Nothing in our present opinion should be understood to question our prior conclusions about

filling positions not covered by the special hiring authorities in title 3.

10

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

President that was nearly identical to section 105(a). Prompted by the inconsisten-

cy between our earlier memoranda and the implications of Haddon, we now revisit

the reasoning in those memoranda in order to assess the issue presented under

section 105(a).

While acknowledging that the appropriation language was “broad” and the issue

“not wholly free of doubt,” our memorandum regarding the White House appoint-

ment reasoned that section 3110 should be understood as a “specific prohibition”

constituting an “exception to the general rule that limitations on employment do not

apply to the White House Office.” White House Aide Memo II, at 3. We therefore

invoked the “basic principle of statutory construction that a statute dealing with a

narrow, precise, and specific subject is not submerged by a later enacted statute

covering a more generalized spectrum.” Id. (quoting Radzanower v. Touche Ross &

Co., 426 U.S. 148, 153 (1976)). But the canon about general and specific statutes

seems of limited help here, because neither of the two relevant statutes can readily

be characterized as more or less specific than the other. To be sure, section 3110

could be said to concern the “specific” subject of nepotism. But section 105(a) could

reasonably be described as a statute “dealing with [the] narrow, precise, and

specific” subject of hiring for the White House Office that ought to overcome the

generally applicable anti-nepotism rule of section 3110.

The 1977 memoranda also put significant weight on the legislative history of

section 3110, discerning a clear congressional intent that the Executive Office of

the President, including the White House Office, be among the entities subject to

the anti-nepotism prohibition. See Mental Health Commission Memo I; Mental

Health Commission Memo II, at 5; White House Aide Memo I, at 2; White House

Aide Memo II, at 2–3. We think that this history is not so compelling, however, as

to direct the outcome on the question here.

Section 3110 was enacted as part of the Postal Revenue and Federal Salary Act

of 1967. See Pub. L. No. 90-206, § 221, 81 Stat. 613, 640. When Congress

considered and passed the legislation, the annual appropriations for the Executive

Office of the President then in effect included the permissive language about the

President’s authority to hire personnel in the White House Office. See Pub. L. No.

90-47, tit. III, 81 Stat. 113, 117 (1967). As our 1977 memoranda observed, there

was no mention of those appropriations or that language during Congress’s

consideration of the anti-nepotism provision. But one witness, the Chairman of the

Civil Service Commission, testified before the Senate committee that, in his view,

the language then under consideration would have prevented President Franklin

Delano Roosevelt from appointing his son “at the White House as a civilian aide”

(as President Roosevelt had done). Federal Pay Legislation: Hearings Before the

S. Comm. on Post Office and Civil Service, 90th Cong. 366 (1967) (“Federal Pay

Legislation Hearings”) (testimony of Chairman Macy). Following the hearing, the

Senate amended the provision in the bill and explicitly named the President as a

“public official” to whom the bar applied. “Because the Senate Hearings contain

11

Opinions of the Office of Legal Counsel in Volume 41

the only extended discussion of the provision and the only discussion at all of its

application to the President,” we explained in our memorandum concerning the

White House appointment, “it seems appropriate to attach particular significance

to the Civil Service Commission’s interpretation of the statute in the course of the

hearings. It is reasonable to assume that the Senate Committee and eventually the

Congress acted on the basis of Chairman Macy’s interpretation of the prohibition

as drafted.” White House Aide Memo II, at 2.

Having reexamined the legislative materials, we no longer would make that

assumption. The Senate committee and Chairman Macy were reviewing a version of

the bill that prohibited nepotistic appointments to “department[s],” defined more

broadly to include “each department, agency, establishment, or other organization

unit in or under the . . . executive . . . branch of the Government . . . including a

Government-owned or controlled corporation.” H.R. 7977, 90th Cong. § 222 (as

referred to S. Comm. on Post Office and Civil Service, Oct. 16, 1967) (emphasis

added). It is unclear why the Senate amended the provision to apply instead to

“Executive agenc[ies]” and thus to call up the title 5 definition of that term. See H.R.

7977, 90th Cong., § 221 (as reported out of S. Comm. on Post Office and Civil

Service, Nov. 21, 1967). The Senate report does not explain the change. See S. Rep.

No. 90-801, at 28 (1967). Nevertheless, that the Civil Service Commission Chair-

man was considering different statutory language when offering his view about the

scope of the prohibition dilutes the strength of his testimony—which, as a witness

statement, should typically be afforded less weight to begin with. See S&E Contrac-

tors, 406 U.S. at 13 n.9; Gustafson, 513 U.S. at 580.

Because the appropriation language was apparently never mentioned during the

House’s or Senate’s consideration of the bill, the debates and other materials

include no clear statement that the anti-nepotism provision was intended to prevail

over the broad hiring authority previously granted in that year’s appropriation for

the Executive Office of the President. 6 Moreover, aside from that single question

6

Individual senators did stress the amended provision’s breadth in floor statements. See 113 Cong.

Rec. 36103 (1967) (statement of Sen. Randolph) (indicating that the Senate amended the provision “to

plug any loopholes which might exist,” because “[i]t was critical that the nepotism provisions be

applied across the board”); id. (stating that “[w]e could not stop at a certain point in formulating a

policy on nepotism” and “had to apply the policy across the board”); id. at 36103–04 (suggesting that

“the White House believes, as does now the Congress, that a nonnepotism policy should apply equally

to any branch of Government”); id. at 37316 (statement of Sen. Udall) (explaining that the provision

applies “across-the-board, from the highest office to the lowest paid job, with equal force and effect”

and that “[n]o official in any of the three branches of the Government . . . may appoint or promote a

relative to any position under his or her control or jurisdiction,” and calling it “the strongest possible

guarantee against any abuse of Federal appointive authority and any preference in Federal positions

that is adverse to the public interest”). These statements, whatever their worth in demonstrating

congressional intent more generally, suggest that at least those senators meant for section 3110 to have

broad effect across the three branches of government. But because those statements do not speak to

section 3110’s relationship to the President’s hiring authority under the annual appropriations for the

12

Application of Anti-Nepotism Statute to Presidential Appointment in White House Office

about the service of President Roosevelt’s son as a White House aide—which was

part of a series of questions posed by the senators to Chairman Macy about the

language’s application to the President generally, see Federal Pay Legislation

Hearings at 360–69—neither the Senate nor the House appears to have focused on

the White House Office. We therefore are hesitant to infer that the 90th Congress

envisioned that section 3110 would overcome the President’s hiring authorities

under the annual appropriation. We are even more reluctant to draw that inference

with respect to the permanent special hiring authority for the White House Office

that Congress enacted ten years later.

IV.

Finally, we believe that this result—that the President may appoint relatives to his

immediate staff of advisors in the White House Office—makes sense when

considered in light of other applicable legal principles. Congress has not blocked,

and most likely could not block, the President from seeking advice from family

members in their personal capacities. Cf. In re Cheney, 406 F.3d 723, 728 (D.C. Cir.

2005) (en banc) (referring to the President’s need, “[i]n making decisions on

personnel and policy, and in formulating legislative proposals, . . . to seek confiden-

tial information from many sources, both inside the government and outside”); Pub.

Citizen v. U.S. Dep’t of Justice, 491 U.S. 440, 466 (1989) (construing the Federal

Advisory Committee Act (“FACA”) not to apply to the judicial recommendation

panels of the American Bar Association in order to avoid “formidable constitutional

difficulties”). Consequently, even if the anti-nepotism statute prevented the President

from employing relatives in the White House as advisors, he would remain free to

consult those relatives as private citizens. See Barron Opinion at 8–9 (finding the

application of section 3110 to presidential advisory committees constitutional in part

because “[t]he President remains free to consult his relatives in their private,

individual capacities at the time and place of, and on the subjects of, his choosing”).

And our Office has found that such an informal, “essentially personal” advisory

relationship, even if the private person offers advice to the President on a “wide

variety of issues,” does not make that person an employee of the federal government

subject to the conflict of interest laws in title 18. Status of an Informal Presidential

Advisor as a “Special Government Employee”, 1 Op. O.L.C. 20, 20–21 (1977)

(“Informal Presidential Advisor”); see also id. at 22 (“Mrs. Carter would not be

regarded as a special Government employee solely on the ground that she may

discuss governmental matters with the President on a daily basis.”). 7

Executive Office of the President—and, of course, could not speak to the relationship between section

3110 and the later-enacted section 105(a)—they do not illuminate the matter at hand.

7

Our opinion explained, however, that while the informal presidential advisor’s general practice (as

we understood it) of discussing policy issues directly with the President did not itself render him a

13

Opinions of the Office of Legal Counsel in Volume 41

But the conflict of interest laws do apply to employees of the White House Of-

fice. See 18 U.S.C. §§ 203, 205, 207, 208, 209 (all applicable to, inter alia, officers

and employees in the “executive branch”); id. § 202(e)(1) (defining “executive

branch” for purposes of those statutes to include “each executive agency as defined

in title 5, and any other entity or administrative unit in the executive branch”); id.

§ 207(c)(2)(A)(iii), (d)(1)(C) (applying more stringent post-employment restrictions

to employees appointed to the White House Office pursuant to 3 U.S.C.

§ 105(a)(2)); see also, e.g., Applicability of Post-Employment Restrictions in 18

U.S.C. § 207 to a Former Government Official Representing a Former President or

Vice President in Connection with the Presidential Records Act, 25 Op. O.L.C. 120

(2001) (considering section 207’s application to former employees of the White

House Office).

A President wanting a relative’s advice on governmental matters therefore has

a choice: to seek that advice on an unofficial, ad hoc basis without conferring the

status and imposing the responsibilities that accompany formal White House

positions; or to appoint his relative to the White House under title 3 and subject

him to substantial restrictions against conflicts of interest. Cf. AAPS, 997 F.2d at

911 n.10 (declining, after holding that the First Lady qualifies as a “full-time

officer or employee” of the government under FACA, to decide her status under

the conflict of interest statutes). In choosing his personal staff, the President enjoys

an unusual degree of freedom, which Congress found suitable to the demands of

his office. Any appointment to that staff, however, carries with it a set of legal

restrictions, by which Congress has regulated and fenced in the conduct of federal

officials.

*****

In our view, section 105(a) of title 3 exempts appointments to the White House

Office from the bar in section 3110 of title 5. Section 3110 therefore would not

prohibit the contemplated appointment.

DANIEL L. KOFFSKY

Deputy Assistant Attorney General

Office of Legal Counsel

government employee, his more extensive “work” on a particular “current social issue”—in connection

with which the advisor “called and chaired a number of meetings that were attended by employees of

various agencies” and “assumed considerable responsibility for coordinating the Administration’s

activities in that particular area”—did cross a line and made him a government employee for purposes

of that work. Informal Presidential Advisor, 1 Op. O.L.C. at 23.

14