The idea behind the Hatch Act is simple. There’s a lot of power in Washington, and elected officials earn their positions to wield that power on behalf of their constituents. One can see how an unscrupulous person might try to leverage that power to extend their partisan advantage, filling their staffs with political lackeys or dispatching staff to work on partisan political efforts. Or, in a more common example, using their official positions to advocate partisan positions.
On Tuesday, Kellyanne Conway, counselor to President Trump, became the latest member of Trump’s administration to violate the Hatch Act, according to the Office of Special Counsel (not to be confused with special counsel Robert S. Mueller III). On two occasions last year, Conway was interviewed on television as part of her official capacity and, during those interviews, advocated the election of Roy Moore to the Senate from Alabama.
“And Doug Jones in Alabama,” Conway said on Fox News of Moore’s Democratic opponent. “Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.”
The OSC’s letter to Trump read: “In passing this law, Congress intended to promote public confidence in the Executive branch by ensuring the federal government is working for all Americans without regard to their political views. Ms. Conway’s statements during the Fox & Friends and New Day interviews impermissibly mixed official government business with political views about candidates in the Alabama special election for U.S. Senate.”
The punishment for the violation was left to the White House, which wasted little time making clear that there wouldn’t be any punishment.
This was the second time that Conway has violated ethics rules since coming to the White House. When Nordstrom stopped carrying Ivanka Trump’s clothing line early in the administration, Conway said in an interview: “Go buy Ivanka’s stuff, is what I would tell you. I hate shopping, but I’m going to go get some for myself today. I’m going to give it a free commercial here. Go buy it today.” That was a different sort of violation: leveraging her formal position for the economic benefit of someone else.
But she’s also not the only member of the Trump White House to be ensnared in questions about violating the Hatch Act.
Social media director Dan Scavino was found to have violated the Hatch Act when he tweeted out a criticism of Rep. Justin Amash (R-Mich.).
Trump “is bringing auto plants & jobs back to Michigan,” Scavino wrote. Amash “is a big liability. #TrumpTrain, defeat him in primary.”
The White House’s defense of Conway — that her words didn’t explicitly advocate the defeat or election of anyone — clearly doesn’t hold for Scavino’s tweet. Regardless, it’s not clear that there was any punishment leveled against Scavino.
The OSC also found that U.N. Ambassador Nikki Haley violated the Hatch Act by expressing her support of candidate Rep. Ralph Norman (R-S.C.) from her personal Twitter account. In that case, Haley retweeted a tweet of support from Trump.
Other members of the administration have faced questions about whether they’ve crossed the line. Housing and Urban Development Secretary Ben Carson faced questions when he was introduced at a campaign rally using his formal title. Jared Kushner, Trump’s son-in-law and a presidential adviser, was listed under his official title in a news release announcing the hiring of the campaign manager for Trump’s 2020 effort. (The news release was quickly revised.)
With Trump’s reelection effort gearing up, the OSC released updated guidelines on what is and isn’t allowable for government employees.
“For example, while on duty or in the workplace,” the guidelines read, “employees may not: wear, display, or distribute items with the slogan ‘Make America Great Again’ or any other materials from President Trump’s 2016 or 2020 campaigns; use hashtags such as #MAGA or #ResistTrump in social media posts or other forums; or display non-official pictures of President Trump.”
FCC commissioner Mike O’Rielly, speaking at the Conservative Political Action Conference last month, seemed to cross the line in advocating for Trump’s reelection — pretty explicitly.
“I think what we can do is make sure as conservatives we elect good people to both the House, the Senate, and make sure that President Trump gets reelected,” O’Rielly said during a panel at the conference.
Trump himself is not subject to the constraints of the Hatch Act. When he was in Missouri last year on an official presidential trip to tout his plans to overhaul the tax code, he took a moment to excoriate Sen. Claire McCaskill (D-Mo.). If she didn’t vote for the Republican plan, he said that “you have to vote. Her. Out. Of. Office.”
Although that’s not a violation of the Hatch Act, it is problematic. In essence, Trump turned the event into a political rally — necessitating that the Republican Party reimburse part of the costs of the event.
If this all seems confusing: Fair enough. That’s why the Office of Special Counsel offers training for administration officials about where the legal lines are. In its letter to the White House about Conway, the OSC notes that Conway completed that training shortly after coming to the White House.
Might be time for a refresher.