Fillon and Trump: the nepotism boys

U.S. President Donald Trump and French presidential hopeful François Fillon appear both to be in danger of falling foul of nepotism laws.

Fillon said last Friday that he would drop out of the presidential race if he were investigated, but he has been fighting back against the accusations. Trump has simply indicated that the law doesn’t apply to him.

Fillon’s nepotism charges came from the satirical newspaper Le Canard Enchaîné, which translates as “the chained duck.” On 24 January, the newspaper claimed that: Penelope Fillon earned about €500,000 as her husband's parliamentary assistant, but that there was no evidence she did any work. It also claimed that she was paid a further €100,000 for a publishing position by a billionaire friend of her husband for, allegedly, writing a couple of book reviews.

François Fillon addressed the charges on television, saying: “The work she does is real. I will defend her. I love her. I will protect her. And I say to all those who want to go after her that they will have to face me.” Of course, it is legal for French MPs to employ their relatives, but they must be doing an actual job. And employing family members is not unusual. According to a 2014 survey: 52 wives, 28 sons, and 32 daughters of 348 MPs were apparently employed using parliamentary funds.

But these allegations were enough to cause French financial prosecutors to open a preliminary investigation, though Fillon and his wife will only face formal judicial investigation or charges if the claim is found to have any substance. Fillon said his wife Penelope, who is British, had worked for him since his first election in 1980. Le Canard Enchaîné claimed she was paid as Fillon’s parliamentary assistant and then as an assistant to his successor after he joined the presidential race, but it also claimed that it could “find no trace of her ever having carried out the work and no witnesses to her doing the job.”

Fillon responded by saying: “My wife has always worked for me; she has always been by my side in my public life. She corrected my speeches, she met a huge number of people who I couldn’t see, she represented me at events, she did press reviews for me and she passed on people’s requests.” He also revealed that he had employed two of his children, who are lawyers, using public funds while he was a senator.

It is legal for French MPs to employ their relatives, but they must be doing an actual job. And employing family members is not unusual. According to a 2014 survey: 52 wives, 28 sons, and 32 daughters of 348 MPs were apparently employed using parliamentary funds.

Meanwhile, Penelope Fillon has always told the media she did not have a role in her husband’s political life and was occupied with raising their children at their chateau in western France. Fillon continued: “A parliamentary assistant is an adviser who carries out their role near their boss, and you can’t say that we didn’t spend time together.” Responding to questions as to why his wife had said that she didn’t work for him, Fillon replied: “She never did politics in the sense that she was never in the front line. She did daily work for me.” It does not appear that any documentation has been provided to the prosecutors’ office to prove that Mme. Fillon conducted business for Fillon. Something does not quite add up.

For Trump, the issue is slightly different. It is illegal to employ family members according to “5 U.S.C. 3110—Employment of relatives; restrictions,”which prohibits government official—including the President—from appointing or employing family members and prohibits those family members from being paid if they are hired. The law was brought in after President Kennedy appointed his brother, Robert, as attorney general.

Trump spokeswoman Kellyanne Conway claimed on MSNBC’s Morning Joe that Trump's daughter Ivanka Trump and her husband Jared Kushner would not be covered by the anti-nepotism law because they would be the President’s own staff and not part of the official administration. Ironically, this potential loophole is based on Hillary Clinton's appointment to a White House task force on healthcare reform.

Critics, however, have pointed to an Office of Legal Counsel memorandum that advised President Jimmy Carter that he could not employ his own son as an intern; and many believe that the Executive Office of the President is also covered by the law and that the Hillary Clinton loophole should not have been passed.

If that doesn’t fly, Trump has a number of other options. He could hire them but not pay them a salary, at least not one from the public purse. This doesn’t mean that he couldn’t pay them himself or have a SuperPAC or some other outside group pay them. He could also challenge the law in court or simply ask Congress to change it.

The potential consequences for the two politicians are very different. Trump himself, and most of his cabinet, are deeply mired in conflicts of interest to an extent not seen since the Nixon era. One more charge of nepotism or conflict of interest is unlikely to make much difference to his reputation. Fillon, on the other hand, is campaigning on his high standard of ethics, comparing himself favourably to other politicians with less bright white reputations. He has also indicated that, if elected, he will cut wasteful public spending and get rid of 500,000 civil service positions. If the Canard Enchaîné allegations turn out to be true, or even half true, he will need to come up with some alternative facts, or step down.

So, there is compliance with the law in spirit and compliance with the letter of the law and then there is an even better option, which is “don’t do it at all.” Whether it is legal or not in France is less material than the look of it. The fact that almost a third of French MPs employ their relatives, unless some MPs employ their wife, daughter, and son, which is even worse, does not look good, legal or not. In the same way, you cannot treat the office of the President as if it is a private company, with no regulations covering its governance. Whether the statute applies to the President’s own staff or not is less material than the look of it. And it doesn’t look good.