Walter Shaub is a senior director at the Campaign Legal Center. He previously served as director of the Office of Government Ethics.
The special counsel is facing the biggest test of his career. I'm referring not to Robert S.Mueller III but to Henry Kerner of the Office of Special Counsel (OSC), the small agency that investigates Hatch Act violations. That law prohibits executive branch employees from using their government positions to influence elections, which is precisely what presidential counselor Kellyanne Conway did last week. Whether Kerner will enforce the law is another matter.
When Conway appeared on"Fox and Friends" last Monday, it was clear she was doing so in an official capacity: One of the show's hosts introduced her by her title and she articulated the administration's views as she stood in front of the White House. In discussing whether the president has enough votes to get a tax bill through the Senate, Conway (without prompting) attacked Doug Jones, the Democratic candidate for Senate in Alabama. "And Doug Jones in Alabama?" she said, "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."
Conway's intent was clear enough already, but she decided to make it clearer. "I'm telling you that we want the votes in the Senate to get this tax bill through," she admitted. Playing down the sexual misconduct allegations against Jones's Republican opponent Roy Moore, Conway added, "If the media were really concerned about all these allegations and that was what this was truly about with the Democrats, Al Franken would be on the ash heap of bygone, half-funny comedians." After a startled "Fox and Friends" host pointed out that even the Republican National Committee had withdrawn support for Moore, Conway doubled down on her advocacy against Jones. "Nobody ever says his name, and they pretend he's some kind of conservative Democrat, and he's not," she said.
Based on this obvious violation of the Hatch Act, the Campaign Legal Center (where I am a senior director) filed a complaint against Conway with the OSC. The White House has offered typical misdirection in response, asserting that Conway was innocently championing the president's agenda. The question is not whether Conway was championing the agenda of the president — who, it's worth noting, actively supports Moore — but whether she was advocating against Jones. Only in a world of alternative facts could Conway's televised words amount to anything other than advocacy against Jones.
In short, the case against Conway is airtight. Or it would be, that is, if President Trump hadn't appointed Kerner to lead the OSC.
Kerner comes from a conservative group called the Cause of Action Institute. When I served as director of the Office of Government Ethics (OGE), Cause of Action was the only organization that wrote to me in defense of Conway after she told Americans to "go buy Ivanka's stuff." The group claimed Conway was exempt from OGE's ethics regulations and that OGE lacked authority to oversee the White House's ethics program, despite four decades of White House compliance with OGE oversight and an example in OGE's White House-approved regulations expressly highlighting their applicability to White House staff.
Kerner and his group also went after potential whistleblowers at the Environmental Protection Agency. Shortly after the incoming administration demanded that the Energy Department turn over lists of employees who had worked on climate change issues, a small group of EPA employees understandably feared for their jobs and used encrypted texts to forge networks for potential whistleblowing. Cause of Action sued the EPA for release of the texts, which would have revealed the names of the would-be whistleblowers to the Trump White House and its allies. That action alone should have disqualified Kerner from consideration for a position that makes him the federal government's top guardian of whistleblowers.
But Kerner got the job anyway, and the Conway incident now presents him with as clear a violation of the Hatch Act as he's likely to encounter during his five-year term. The trouble for Kerner is that Conway is close to his new boss, who notably sided with her the last time she violated ethics rules. Kerner criticized the last administration for its Hatch Act issues, saying that, "The law is clear: public officials paid by taxpayers cannot use their position to engage in political activities," and "the Obama administration's unprecedented history of Hatch Act violations threatens to undermine this important protection." If Kerner plans to hold Trump's administration to the same standard, he'll have to issue a clear finding that Conway violated the Hatch Act. To do so, he'll have to sign a letter asking Trump to take action against Conway. Kerner will have broad discretion in recommending a penalty because consequences for violating the Hatch Act range from a letter of reprimand to a civil penalty of up to $1,000 to suspension, termination or even debarment from federal employment for up to five years.
What happens to Conway will send an unmistakable message to the rest of the federal workforce about this administration's commitment to enforcing the Hatch Act. Kerner asked for this thankless job, and he's taken an oath to enforce the Hatch Act. His willingness to pursue this slam-dunk case will tell us whether he has any intention of fulfilling that oath. If he does seek to hold Conway accountable, his penalty recommendation will tell us how vigorously he intends to go about fulfilling that oath. We should all watch what Kerner does next.