Yesterday, the Office of Legal Counsel published the first new opinion of the Trump Administration, titled Application of the Anti-Nepotism Statute to a Presidential Appointment in the White House Office. It is signed by career lawyer DANIEL L. KOFFSKY, Deputy Assistant Attorney General Office of Legal Counsel. Here is the introduction:
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 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.
Haddon was a per curiam opinion by Buckley, Ginsburg, and Sentelle. What a panel!
Future OLC Opinions I expect: (1) rationale for firing Richard Cordray, and (2) rationale for halting CSR payments. I would like, but do not expect, an opinion withdrawing the DAPA OLC opinion. It is far easier to simply withdraw the policy, but leave the OLC opinion in place–it may come in handy in the future.
H/T Josh Gerstein