Said with a Vader wheeze.
The law was pretty clearly passed in response to JFK’s appointment of his bruddah as AG, and Bobby is still widely regarded as one of the best AGs, but put that aside. I believe the law is constitutional. Nepotism is a bad thing, all in all, given the danger of self-dealing, corruption and family ties trumping (ahem) one’s duty to the public. Bobby was the exception that proves the rule. Congress can and I believe already does prohibit Federal employment for state officeholders, minors, current prisoners, ex-felons, unnaturalized aliens, those dishonorably discharged from the U.S. military, etc. I don’t see why it can’t put close family members off-limits, too.
For General Service, career and career-conditional it’s true that only US citizens may be employed. But an agency may hire a qualified non-citizen into the excepted service or Senior Executive service, assuming his immigration status permits him to work.
I think appointing Kushner would be legally murky, most likely he’s being considered for one of the “Counselor to the President” jobs or “Senior Advisor” jobs. These are will and pleasure appointments made directly into the Executive Office of the President, similar to White House Chief of Staff, and they aren’t subject to a confirmation process. They usually serve “outside” the normal chain of command. So an org chart would show them as boxes directly off of the President, with no “named” subordinates, but they’ll often have access to staff/assistants who do what they say since they’re directly working for the President and that carries a lot of weight. Presidents have intermittently had these people on staff for ages, sometimes 3-4 or more at once, with varying job titles (Senior Advisor or Counselor to the President being the most common.)
To be honest, much of the concerns of nepotism don’t apply to these, unlike Attorney-General or even someone “in the chain of command” in the Executive Office of the President (like the Chief of Staff or his deputies), they don’t oversee an agency or department, they usually have no real direct reports (they may have access to secretarial/aides, who won’t technically be under them), they have no power to give orders to anyone or etc. Their job is to give the President advice, and them being on the payroll and part of the executive branch makes it easier to give them security clearances and etc.
I wouldn’t find anything “smelly” about Trump appointing Kushner as a Special Advisor or “Counselor to the President”, Kushner is a multi-millionaire himself many times over, so it’s not like the low-six figures he’d earn from the job would be relevant. It’s even been suggested he’ll do it for no salary.
Would I find it in violation of the above law? Probably, by the letter of it. But my WAG is if this goes down, the Trump Administration will do what Presidents normally do when something they want to do “skirts” the bounds of the law. They’ll have a lawyer for White House Counsel’s office or maybe the Justice Department draft a “memo”, saying that while the broad law is constitutional, “advisors” who directly give advice to the President shouldn’t be viewed as normal officers of the government, and that the President has unlimited authority to “get advice” from whomever he wants, and that being able to appoint them to a legal position on his staff is required for efficiency/security reasons. If Congress doesn’t contest it, it’s unlikely you’ll hear much about it. Unlike a cabinet-agency position or a regular position in the chain of command, there aren’t any subordinates or etc who could likely claim standing to sue, so any lawsuits arising from it would probably be dismissed for lack of standing to sue, if brought by private citizens or public interest groups. Congress would have a case, but again, would be unlikely to pursue one.
An alternative might also be, the President has a budget for his staff, he could just hire someone as a contractor, and then that person isn’t an employee at all, but a “vendor”, and the service they are providing is advice, for $1/year. Lots of contractors get Top Secret clearance, and the President himself can unilaterally declassify anything he wants, so if he orders a specific contract be given a security clearance I can’t imagine he doesn’t get one.
There is still the NOCONTRACTOR caveat that I don’t think I’ve ever actually seen in real life on any particular classified materials. And interestingly, given the broadness of the law cited above (“… or control an individual”), even if Kushner was labeled some kind of contractor, it doesn’t look like he could legally keep the $1.
Working for free for the federal government without some kind of statutory allowance, though, raises issues about illegal augmentation to an existing Congressional budget appropriation. But that’s another whole can of headache-inducing worms.