In a subsequent phone call, Peterson said, the attorney twice told him that he had been assigned to investigate the case.
Zachary Kurz, spokesman for the Office of Special Counsel, said the office “generally cannot comment on or confirm the status of Hatch Act investigations.”
The Hatch Act prohibits political campaigning on the part of government officials. In an interview with Fox News this month, DeVos was asked about Biden’s opposition to her school choice agenda. DeVos replied by noting that Biden had spoken in favor of school choice in 1997.
“Today he’s turned his back on the kids that we’re talking about, and he’s turned his face in favor of the teachers union and what they have to say and what they have to demand, and it’s really shameful,” she said.
The interview aired Sept. 2, and later that day the Education Department included a link to the video in an email distributed with the subject: “Important Updates from U.S. Department of Education Secretary Betsy DeVos.”
Political appointees often wear multiple hats, and it’s not always clear whether somebody has violated the Hatch Act. A DeVos spokeswoman said at the time that her comments were not a violation because she did not advocate the election or defeat of any candidate.
In his complaint, Peterson said she crossed a line.
“Secretary DeVos’s characterization of Vice President Biden as ‘shameful’ and the accusation that ‘he’s turned his face in favor of the teachers union’ is a personal, political attack. With a Presidential election less than two months away, this is clearly campaign rhetoric, not policy discussion,” he wrote.
He said the distribution of the video was “premeditated,” distributed via government email and from DeVos’s official Twitter account, which shows it was a “coordinated campaign” meant to damage Biden’s campaign.
DeVos spokeswoman Angela Morabito said on Monday, “Not every allegation is based in fact . . . The secretary was asked to respond to oft-repeated criticism of her and her policies, and she defended her policies, including discussing the history of that criticism.”
She added that the agency would “of course” cooperate with an investigation “of this frivolous complaint” if one were opened.
Trump administration officials have been repeatedly accused of violating the Hatch Act. Special Counsel Henry Kerner, who was appointed by President Trump, has cited at least nine high-level Trump appointees for abusing their government roles to further the president’s reelection or disparage his rivals.