Office Of Special Counsel Finds One Or Twelve Hundred Hatch Act Violations In Trumpland
Great news, guys! The Office of Special Counsel says we can hold the Democratic National Convention at the White House in 2024. Sure, the Hatch Act says that we can't use government resources in support of a political candidate, but turns out it's totally kosher to host a partisan event in the people's house. All you have to do is elect a president who doesn't give a shit about ethics, the rule of law, or public opprobrium, and you're good to go. What are they gonna do, lock you up?
Yesterday the OSC, which is responsible for ensuring compliance with the Hatch Act, released a report on violations in the lead-up to the election. Shocking exactly no one, the 63-page document on Political Activities of Senior Trump Administration Officials During the 2020 Presidential Election describes a whole shit ton of violations.
Because the president and the vice president are not subject to the Hatch Act, and because the White House is technically the president's personal residence, the OSC found that "the current statutory scheme does not categorically preclude a political party from holding events at the White House." However, it did document dozens of violations of the act which were either tacitly or explicitly encouraged by the president and his top officials.
Most egregious by far was when Secretary of State Mike Pompeo disregarded the advice of government lawyers and changed the State Department rules for him and him alone to allow him to speak at the RNC in his official capacity.
On or about August 21, Secretary Pompeo approved a change to a State Department policy that until then had prohibited him and all other political appointees at the State Department from engaging in many partisan political activities, such as addressing a political party convention. However, he approved a change to the policy—for the Secretary of State only—just days before he delivered a taped speech from Jerusalem to the RNC. Under the new policy, the Secretary of State "is not restricted from addressing a political party convention when requested by or for the President." That decision was made against the advice provided to Secretary Pompeo by senior State Department lawyers.
The OSC notes that there was "no evidence that the change Secretary Pompeo approved was driven by a measured reconsideration of the underlying policy rationale for the existing restrictions." Instead "[t]he policy change was precipitated by Secretary Pompeo being asked, on behalf of President Trump, to participate in the RNC."
In plain English, Trump asked Pompeo, a graduate of Harvard Law School, to violate the statute by using his official position to help Trump get re-elected, and Pompeo readily agreed. The speech, which was filmed when Pompeo was on State Department business in Jerusalem, also violated the Department's policy against "engag[ing] in partisan political activities abroad." His own lawyers advised him against making it at all, and told him that he should refrain from referencing his official duties if he was going to go through with it. But "[a]s he did with the policy change, Secretary Pompeo disregarded that advice."
Meanwhile back at the White House, (acting) Homeland Security Secretary Chad Wolf was giving Pompeo a run for his money taping a naturalization ceremony to be aired at the RNC without the knowledge of new American citizens taking part in it. The OSC extensively documents the pushback the White House and DHS got from ethics officials who told them in no uncertain terms that coopting an official act for partisan purpose was illegal.
Here's a fun little snippet, in which the White House keeps insisting that it will all be just fine if they renominate the ceremony as "an official event."
OSC repeatedly warned both DHS and the Trump White House that, because the ceremony was designed to produce content for the RNC, the proposed naturalization ceremony would violate the Hatch Act even if it was later characterized as an official event. OSC first advised a DHS ethics official of this on August 20, prior to the event being reclassified as an official event, and again on August 25, the morning of the event, after learning that it had been reclassified. OSC similarly advised the White House on August 20 and 24. As late as 10 a.m. on the morning of the ceremony—just 45 minutes prior to the event—the DHS ethics official emailed DHS leadership, including the GC, stating that Acting Secretary Wolf should not participate in the ceremony. A DHS employee replied and copied the CoS, writing "please note. Can you reach out to OGC soonest?"
When interviewed by the OSC, the White House refused to answer questions citing "privilege," and DHS officials insisted that no one ever told them it was going to be a problem — even the ones who were on email chains proving otherwise. One official even tried to convince the OSC that it was totes cool because once Donald Trump participated in a naturalization ceremony and put it on YouTube.
The OSC was incredulous:
Government functions cannot be scheduled, coordinated, or designed for the purpose of promoting a political party, campaign, or candidate for partisan political office. That the White House decided subsequently to classify the event as official, and thereby use even more government resources to stage an event intended for use as part of a political campaign, does not cure the Hatch Act problem. As of August 20, the White House and DHS understood that the August 25 ceremony was scheduled so that it could be featured as part of the RNC—i.e., to serve a partisan political purpose. Therefore, the Hatch Act prohibited federal employees from participating in the event in an official capacity.
Compared with Pompeo and Wolf, the 11 other Trump officials cited in the report for going on television to trash Biden and urge viewers to vote for Trump look like small potatoes. And yet, it was still wildly inappropriate for National Security Advisor Robert O'Brien to go on Hugh Hewitt's show and say "Who do you want to turn to to rebuild the economy—the guy who's proven he can do it, President Trump, or somebody who's been in Washington for 40 years?"
Naturally, the same people who've been braying to throw Hillary Clinton in email jail for seven years would like us all to ignore this persistent lawbreaking.
"From OSC's perspective, the administration's attitude toward Hatch Act compliance was succinctly captured by then-Chief of Staff Mark Meadows, who said during an interview that 'nobody outside of the Beltway really cares' about Trump administration officials violating the Hatch Act," the report notes. Kellyanne Conway was similarly dismissive, scoffing, "let me know when the jail sentence starts."
And that, as the OSC is at pains to note, is kind of the problem. The Hatch Act depends on a chief executive to enforce it, and that doesn't work when the president doesn't give a shit about the rule of law.
The president's refusal to require compliance with the law laid the foundation for the violations described in this Part. In each of these instances, senior administration officials used their official authority or influence to campaign for President Trump. Based upon the Trump administration's reaction to the violations, OSC concludes that the most logical inference is that the administration approved of these taxpayer-funded campaign activities. OSC further concludes that these violations likely would not have occurred had the Trump administration made clear to senior officials that they should act in accordance with the Hatch Act and that there would be consequences for violating it.
When Obama's HHS Secretary Kathleen Sebelius was found to have violated the Act in 2012, President Obama made her reimburse the Treasury for the cost of transporting her to make the offending comments. In contrast, Trump "fail[ed] to take any apparent action against employees in even the most clear-cut cases" and even argued that he couldn't possibly punish Conway for her serial violations because that would "take away her right of free speech."
And because the Hatch Act relies on the executive branch to play by the rules, the OSC is shit outta luck if the president and his cronies tell them to get bent. It doesn't have subpoena power, can't levy fines, has no mechanism to punish offenders once they leave government service, and not for nothing but the Merit Systems Protection Board, which might have judged these cases in the absence of executive action, lacked a quorum during the entire Trump administration. In short, the Hatch Act needs a major overhaul, as the OSC spent 14 pages pointing out.
No doubt Congress will get right on that one. Because if there's one thing that Mitch McConnell will cross the aisle for, it's cleaning up the government.
Haha, that's a little joke. Gotta laugh or you'll cry, right?
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.