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 compensation 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 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.
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
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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 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
employment in the federal government. It is therefore a “provision of law
regulating the employment . . . of persons in the Government service.” 1

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.

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

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
sweeping than its words dictate. The ordinary effect of “without regard”
language is to 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, “re-

§ 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).

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flect[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. 95570, 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 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
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 Application of Anti-Nepotism Statute to Presidential Appointment in White House

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 particularly 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 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 “Executive agency” within the title 5 definition. Id. at 1490. Be5

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cause 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. Reinforcing 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. Nonetheless, 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 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
6

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

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 establishment,
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 with respect to the President’s advisors and the staff of the
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).

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Executive Residence.” 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
authority 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 notwith-

8

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

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 departure is fully justified. Our initial opinions on the subject
drew unwarranted inferences about Congress’s intent from a single witness
statement in a congressional 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.

standing 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 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.

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A.
Section 3110 was enacted in 1967. In a 1972 memorandum, our Office
concluded 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
Mental Health (“Mental Health Commission”), whether with or without
compensation. 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 determined 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 ultimately 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 conclusion about
the appointment would have been the same, whether or not the position was
located there. See id.

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

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.
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 “virtually 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
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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 President that was nearly identical to section 105(a). Prompted
by the inconsistency 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 appointment 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

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.

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

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 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 eventual-

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ly 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. 90801, at 28 (1967). Nevertheless, that the Civil Service Commission Chairman 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 Contractors, 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,

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 “acrossthe-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

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

aside from that single question 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 confidential information from many
sources, both inside the government and outside”); Pub. Citizen v. 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,

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 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.

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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
But the conflict of interest laws do apply to employees of the White
House Office. 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 free-

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 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.

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

dom, 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

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