Somehow, three of senior White House adviser Steve Ricchetti’s children have landed jobs in the Biden administration, including J.J. Ricchetti, who, fresh out of college, will be handling legislative matters at the Treasury Department. A fourth Ricchetti child is working for a member of Congress. Government, after all, is a good family business.
Nepotism has been a potential threat to presidential administrations for years. Recently, it was one of several unmitigated disasters during the Trump administration.
With the deaths of over 600,000 Americans from Covid-19, we will never know what would have happened if then-President Donald Trump had not appointed his son-in-law, Jared Kushner, to a senior White House position in 2017, and then in 2020 put Kushner in charge of much of the nation’s response to the pandemic.
It’s hard to imagine that the federal response to the pandemic could have been any worse, and Kushner was in charge of a lot of it.
From 1967 until January 2017, it was widely understood that the nepotism statute applied to all parts of the United States government, including appointments by the president in the White House and federal agencies. The statute was enacted after President John F. Kennedy appointed his brother Robert Kennedy to be attorney general. Congress determined that, regardless of how good an attorney general Kennedy had been, such an appointment should not be made in the future. Congress decided that the federal nepotism game was going to end.
In 2006, when I was the chief White House ethics lawyer, a senior Bush White House staff member encouraged the White House to appoint his son to be a White House intern, an unpaid position. I asked the Justice Department’s Office of Legal Counsel (OLC) if this was permitted. Within an hour, OLC sent me a copy of a letter that it had addressed to President Jimmy Carter’s White House explaining that under the anti-nepotism statute, Carter’s son could not be a White House intern. I conveyed this news to the senior Bush White House official who, after some cursing, made employment arrangements for his son outside the executive branch.
OLC’s position was strict — the federal anti-nepotism statute applied to everyone, including the president, and to every job, even an unpaid internship.
OLC’s position was strict — the federal anti-nepotism statute applied to everyone, including the president, and to every job, even an unpaid internship.
Until January 2017. That’s when OLC, to accommodate the incoming Trump administration, reversed course and opined that Trump could appoint his daughter Ivanka and Kushner to senior White House jobs. OLC based its reasoning in part on the view that another statute gave the president broad discretion to appoint White House staff and that this statute somehow qualified — “trumped,” dare we say — the nepotism statute.
Trump family nepotism was a disaster for the United States. Kushner was put in charge of issues far beyond his abilities and expertise. First came the Middle East conflict, where Kushner had both minimal experience and maximum conflicts of interest. Then came Trump’s decision to put Kushner in charge of much of the nation’s response to the coronavirus.
As set forth in painstaking detail by investigative journalist Katherine Eban, Kushner’s handling of the pandemic was plagued with conflicts of interest and politicization, with little focus on a coordinated strategy to mitigate the spread of the disease or its catastrophic impact. Kushner’s secret coronavirus “testing plan” involved delegation of testing to the states, with the federal government ordering and distributing millions of Chinese-made testing kits that didn’t work because they were contaminated.
Neither nepotism nor Kushner’s incompetence are entirely to blame for the staggering death toll of the pandemic; Trump’s refusal to take the virus seriously in early 2020 put the U.S. dangerously behind. Nonetheless, Kushner’s bungling and seeming insensitivity to human suffering was very likely an impediment to the federal response to the pandemic even after the denial phase was over.
In part because of the pandemic, Trump lost the 2020 election. But Joe Biden is now president, and the days of nepotism are over. Except they’re not. Nobody from the Biden family works for this administration. Despite all the ranting on right-wing media about the president’s son Hunter, he’s not in the administration and has not been seen making professional contacts with any of the president’s appointees. Same for other Biden family members. Vice President Kamala Harris also has not brought her family members into the administration. Perhaps every one of these Ricchettis is fully qualified for the federal job he or she holds. If so, and if Ricchetti had nothing to do with their appointment, the letter and the spirit of the nepotism law have been complied with. The White House can clarify this situation by stating in no uncertain terms that Steve Ricchetti did not have anything to do with encouraging anyone in the federal government to hire any of his children The White House can clarify this situation by stating in no uncertain terms that Steve Ricchetti did not have anything to do with encouraging anyone in the federal government to hire any of his children. He is surely aware that the nepotism statute provides that a federal official may not “advocate for appointment, employment, promotion or advancement” of a relative in an agency in which he works or another agency over which he has “jurisdiction or control.” While the president technically has jurisdiction and control over the federal agencies, it is common knowledge that control over these agencies is exercised by and through the senior White House staff. They do not comply with the nepotism statute if they use their positions in the White House to encourage federal agencies to hire their children. The White House needs to unequivocally show that Ricchetti did not do so, or else face the consequences. Meanwhile, with the Trumps gone to Mar-a-Lago, and a hotel owned by the president no longer the go-to destination for lobbyists and foreign dignitaries, we can be confident that the nepotism statute and other ethics laws will be taken seriously by the White House. Biden has committed himself to an executive order on ethics that is the strictest in history. His values seem to be in the right place. It’s been 14 years since I was the chief White House ethics lawyer. But from time to time, I will write columns such as this one to accomplish, from a distance, what I did in person that day I told a senior Bush White House official that his son needed to find another job.
Richard W. Painter
Richard W. Painter was the chief White House ethics lawyer from 2005 to 2007 under President George W. Bush. He is the S. Walter Richey Professor of Corporate Law at the University of Minnesota and is a graduate of Harvard College and Yale Law School. 
