“Ms. Conway’s egregious and repeated Hatch Act violations, combined with her unrepentant attitude, are unacceptable from any federal employee, let alone one in such a prominent position,” Kerner told the panel. “Her conduct hurts both federal employees, who may believe that senior officials can act with complete disregard for the Hatch Act, and the American people, who may question the nonpartisan operation of their government.”
White House lawyers on Monday rejected the Oversight Committee’s request for Conway to appear at the hearing, citing a bipartisan practice that West Wing officials do not testify to Congress while they still work in the administration.
Democrats, however, countered that the White House had no right to claim executive privilege or immunity for Conway because the alleged violations deal with her personal actions — not her duties advising the president or working in the West Wing. They accused the administration of stonewalling yet another House investigation.
“This is about right and wrong. This is about the core principle of our precious democracy — that nobody, not one person, nobody in this country is above the law,” House Oversight Committee Chairman Elijah E. Cummings (D-Md.) said. “Contrary to claims by Ms. Conway and President Trump, this is not a conspiracy to silence her or restrict her First Amendment rights. This is an effort to enforce federal law.”
It is unclear, however, what Democrats will do if Conway ignores the subpoena, which is expected to be issued soon. She could be held in criminal contempt of Congress.
The Hatch Act bars federal employees from engaging in political activity during work hours or on the job. But a report submitted to Trump earlier this month by the Office of Special Counsel — which a Trump appointee runs — found that Conway violated that law on numerous occasions by “disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”
It recommended that Trump terminate her federal employment. The president had indicated that he will not fire her.
Conway has appeared on national television to defend her name. On Monday morning, she said on Fox News Channel that House Democrats are trying to retaliate against her for managing Trump’s 2016 campaign.
“You know what they’re mad about?” Conway said. “They want to put a big roll of masking tape over my mouth because I helped as a campaign manager for the successful part of the campaign . . . So they want to chill free speech because they don’t know how to beat [Trump] at the ballot box.”
Republicans also derided the hearing as a political attack aimed at silencing one of Trump’s most loyal aides. Before her time in the White House, Conway helped run Trump's successful campaign in 2016. Since then, she has frequently appeared on television to defend Trump and attack his political opponents.
Kerner, in an interview with The Washington Post, pushed back on the assertion that politics in any way influenced his decision.
“We’re trying to hold Ms. Conway to the same standard we hold other people in government to,” Kerner said Monday. “My staff came up with violations. They’re obvious. She says things that are campaign messages.”
The hearing created an awkward dynamic on the GOP side: Kerner is a former Oversight Committee staffer who worked for Republicans and spent years investigating President Barack Obama. He was once well-liked and friendly with fellow committee GOP staff and lawmakers. And he actually sat beside them on the dais years ago, advising GOP chairmen.
But as Kerner returned as the Democrats’ star witness, Republicans immediately challenged his credibility. Top committee Republican Jim Jordan (Ohio) argued that Kerner felt slighted by Conway and sought to punish her. Rep. Mark Meadows (R-N.C.) tried to get Kerner to say that he was pressured into the decision by liberal groups, warning him several times that he was under oath.
“The reason we’re here today is because Mr. Kerner got his feelings hurt,” Jordan said. “Mr. Kerner felt slighted. Ms. Conway didn’t pay enough attention to him and his office . . . You know why she didn’t? Because the allegations were ridiculous.”
Kerner defended himself, arguing that he took the unprecedented step of recommending Conway’s firing because it was consistent with the treatment of nonpolitical appointees under the Merit Systems Protection Board, which enforces the law for other federal employees.
Political appointees like Conway, however, are not subject to the board’s oversight on the Hatch Act. Democrats have questioned whether that is fair and are considering changing the law.
Democrats chided Republicans for putting party loyalty to Trump over the rule of law — even by assailing their own former colleague. Rep. Gerald E. Connolly (D-Va.) used his time to highlight Kerner’s onetime job on the committee, asking him if he were a liberal Democrat and feigning shock when Kerner said he was a “conservative Republican.”
Kerner also pushed back on the GOP assertion that other Democratic political appointees have broken the Hatch Act and got off. Kerner said those offenders in the past were admonished, apologized and stopped committing any offenses. Kerner said the OSC had “never had a repeat offender” like Conway, who refused to change her behavior and who “made a comment saying she didn’t feel she was bound by the Hatch Act.”
“President Trump appointed you? Oh, my Lord. Gosh!” he gasped, knowing full well that Trump tapped Kerner. To Republicans he said: “He’s not a partisan. He’s not some wild-eyed liberal. He’s doing his job!”
Before the vote, the hearing grew tense. Meadows argued that Democrats were setting a dangerous precedent and trying to undermine free speech.
“We are better than this!” he exclaimed as he grew angry.
Cummings shot back with equal fire: “We have gotten to a point, sadly, where disobeying the law is okay.”
Meadows tried to interject to argue that was not what he was saying, but Cummings slammed his gavel on the table and yelled, “it is!”
Freshman Rep. Ayanna Pressley (D-Mass.) summed up the Democratic frustration.
“Instead of appearing before this committee, Ms. Conway appeared on ‘Fox and Friends!’ We have offered her a platform to explain herself and she did not show up!” Pressley said. “Ms. Conway ignores OSC, ignores the Hatch Act and now she’s ignoring the committee. This is completely disrespectful to us as a coequal branch of government.”
The Office of Special Counsel is a quasi-judicial independent agency that adjudicates claims of retaliation by whistleblowers and administers the Hatch Act and other civil service rules. It is separate from the office run by former special counsel Robert S. Mueller III, who led an inquiry of Russian interference in the 2016 presidential campaign.
Felicia Sonmez contributed to this report.