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COMMENTARY: Does a federal anti-nepotism law apply to Donald Trump and his son in law?

The decision by President Trump to appoint his son-in-law, Jared Kushner, as a senior adviser at the White House has triggered a national discussion about nepotism.

Law professors debate the fine points of the federal anti-nepotism statute, enacted in 1967. Does the law apply to the White House itself, or just to Cabinet departments and agencies? Is the law itself an unconstitutional infringement by Congress on the president’s authority to select his own advisers?

Beyond the legal issues, though, is an argument about the merits. On the basis of the historical record, is a president better off with or without family members serving in his administration?

Hillary Clinton’s role in heading up the Clinton administration’s failed and secretive health care reform task force was certainly complicated by her status as first lady. But not even Congress is arrogant enough to believe that it can outlaw a president from taking advice from his own wife.

The most relevant recent nonspousal example was John F. Kennedy’s presidency. JFK’s brother, Robert, served as attorney general. Sargent Shriver, who was married to the president’s sister Eunice, was founding director of the Peace Corps.

The family ties did not prevent Shriver or Robert Kennedy from serving their country well. In each case, the relationship with the president may even have helped.

Robert Kennedy may have been the most effective attorney general in American history.

On civil rights, while some historians have faulted the administration for initially moving slowly, the Kennedy Justice Department oversaw the racial integration of the University of Mississippi and the University of Alabama over the resistance of segregationist Southern Democratic governors. These were historic achievements against racism.

More broadly, Robert Kennedy served as a valuable adviser to his brother on a wide variety of issues, including the Cuban Missile Crisis. The Russians withdrew their nuclear missiles from Cuba and nuclear war was avoided, in part because of adroit back-channel diplomacy between Robert Kennedy and the Soviet ambassador at the time, Anatoly Dobrynin.

Ted Sorensen wrote that Robert Kennedy “could be trusted more implicitly, say ‘no’ more emphatically, and speak for the candidate more authoritatively” than anyone else. Arthur Schlesinger Jr. described Bobby as “his brother’s total partner.” A photo of the brothers in together in silhouette is one of the iconic images of the Kennedy era.

As for Shriver, his placement at the head of the Peace Corps symbolized the priority that the president personally placed on the new program, which helped win friends for America in poor rural villages in Africa and Asia.

Did Congress really intend to rewrite the rules to prevent another Shriver or Robert Kennedy from ever serving? President Johnson’s signing of the provision into law suggests the effort may have been caught up in the rivalry between Johnson and Robert Kennedy. Contemporaneous news accounts, though, suggests that the matter involved one Iowa congressman’s long-running campaign to prevent rural postmasters from hiring their relatives. The Chicago Tribune reported on Dec. 24, 1967, that the law passed “almost by accident,” by a vote of 49-33, with a mere 82 of 434 members of the House present.

Congress has plenty of other worthy priorities in the coming days and months. But it could do worse than to find some time to either repeal the 50-year-old law or amend it to make clear that nothing in it is intended to prevent the president from accepting the counsel or assistance of any trusted member of his own family. Call the new law the Robert Kennedy-Sargent Shriver-Jared Kushner Act of 2017.

Ira Stoll is editor of FutureOfCapitalism.com and author of “JFK: Conservative.” His column appears Sunday.

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