He recommended that President Trump fire her.
Democrats on the House Oversight Committee, who invited Conway to testify, plan to vote to subpoena her if she fails to show for the hearing, as expected. Republicans are intent on using the session to question the credibility and judgment of Kerner, one of the panel’s top investigators for more than three years when Republicans were in charge.
Kerner’s offense: Saying a fellow Trump official broke the law.
“It’s completely ridiculous,” said the committee’s top Republican, Rep. Jim Jordan (Ohio). “I mean look at some of the things [Conway]’s said; they’re just truthful statements when she’s asked by the press . . . something like, ‘the Democrats have moved far left.’ Tell me what’s not true about that!”
In her defense, Conway has dismissed the report while accusing Democrats of wanting “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.”
Trump has indicated he would not fire her.
After Kerner takes the witness seat, Republicans plan to argue he applied the law unfairly in Conway’s case, pointing to what they say were similar statements by top Obama administration political appointees, such as housing secretary Julián Castro and Health and Human Services chief Kathleen Sebelius, that received far less attention. Conway, however, has violated the law numerous times, according to Kerner.
“There’s two standards. There’s a standard that was applied during the Obama administration; there’s a standard that he is trying to establish for this administration — and it’s not based on law, and it’s not based on precedent, and it’s wrong,” said Rep. Mark Meadows (R-N.C.)
The hearing will also veer into the personal, said Republican lawmakers and aides, who spoke on the condition of anonymity to freely discuss strategy.
They plan to distribute and read from Kerner’s Facebook posts during the 2016 presidential campaign, with several Republicans suggesting they were critical of Trump. However, the same Republicans declined to share the posts in advance.
Republicans will also suggest that Kerner was out to get Conway because she challenged his authority. They’ll question whether he felt offended when Conway refused to take his advice and dared him to jail her during an interview in late May.
“I think at the end of the day he had his feelings hurt with some comments. . . . I think he took that as disrespecting him — and I think he started listening to the people around him to go after her,” said Rep. Jody Hice (R-Ga.).
Republicans also plan to suggest that his agency’s career staffers pushed him to go after Conway — and even accuse Kerner of having a chip on his shoulder because Trump has disparaged his former boss, the late senator John McCain (R-Ariz.).
Kerner said in an interview Monday that he has no trepidation about his appearance but respectfully disagrees with his former colleagues’ assessment of Conway’s actions.
“It’s my former home in many ways,” Kerner said of the committee. “I love the members. . . . They’re entitled to their viewpoint.”
The Conway case has brought to light the little-known, independent watchdog agency charged with enforcing the Hatch Act and protecting federal employees from retaliation for whistleblowing and from other prohibited personnel actions.
Kerner is adamant that career officials who investigate Hatch Act violations are professionals to be admired — not partisans prodding him to go hard on Conway. He said he has no beef with Conway personally.
“We’re mandated to investigate the violations. And we did. The only request I have is that she comply with the law,” he said.
He suggested that “there is a really easy solution” for the president with respect to her violation of the law: “Just move her out of a federal role and into a campaign role, where she isn’t bound by the Hatch Act.”
The GOP strategy is another reminder of just how much the party has shifted under a president who puts a high premium on loyalty. In February 2017, Oversight Republicans under the lead of then-Chairman Jason Chaffetz (R-Utah) joined Democrats in asking the Office of Government Ethics to review and recommend disciplinary action for Conway after she promoted Ivanka Trump’s clothing brand on national television.
These days, Republicans are rallying to Conway’s side.
Chaffetz, in an interview, called Kerner an “odd duck,” said the former staffer didn’t work for him long and claimed Kerner left when he didn’t get a promotion under his leadership.
Kerner, 52, a former county prosecutor in Los Angeles, arrived in Washington in 2011. He soon embroiled himself in one of the most partisan battles of the Obama era, co-leading the Oversight Committee’s GOP-led investigation into a gunrunning operation at the Justice Department known as “Fast and Furious.” He later left to oversee investigations for McCain on the Senate Homeland Security and Governmental Affairs Committee.
On Capitol Hill, Kerner enjoyed the respect of fellow GOP colleagues, who affectionately called him a “big teddy bear” and “straight shooter.” Former Oversight Committee chairman Darrell Issa (R-Calif.), who was close with Kerner, called him a “by-the-book guy.”
Issa said, however, that his former staffer may misunderstand the Hatch Act.
“When someone is answering the questions of the press, they speak on behalf of the president,” Issa said. “There is a good case to be made that the Hatch Act shouldn’t apply,” adding, “I could understand why Henry’s people could reach the conclusion they reached.”
Kerner was recommended for the special counsel job by Dan Epstein, founder of the conservative watchdog group Cause of Action, who later joined the Trump administration as associate White House counsel in 2017.
Kerner has shown himself an unlikely ally of a federal workforce often targeted by Trump. Where the administration has taken a confrontational view of the workforce and its unions as impediments to shrinking government, Kerner has expressed a passion for safeguarding their protections.
“Our job is to safeguard the merit system so people feel their tax dollars are being used to treat federal workers fairly,” he said. “So we don’t have a two-tiered system where the well-connected are treated differently.”
The Office of Special Counsel found that 67 employees at the federal, state and local level violated the Hatch Act in fiscal year 2018, up from 51 the previous year, statistics show. Of those, 49 employees received warning letters last year, with the rest either resigning, withdrawing from political races they entered inappropriately, or facing discipline at the Merit Systems Protection Board, which adjudicates Hatch Act cases.
Danielle Brian, executive director of the Project on Government Oversight, an independent watchdog group, said Kerner “was just doing his job” when he called for Conway’s resignation. “I wish members [of Congress] would not politicize this,” she said. “It’s pretty much black and white.”
“If they’re carving out favored allies of the president’s, they’re undermining the ability of the agency to enforce the law against other federal employees,” she said.
Democrats argue that Conway’s actions are proof that Trump has not “drained the swamp” as he promised but has turned Washington into a breeding ground for ethics violations. With Kerner on their side, Rep. Gerald E. Connolly (D-Va.) said, Democrats have a “slam dunk” because “he’s the president’s own appointee, and even he says it’s repeated, it’s woeful, it’s crossed the line, and the only remedy is, she has to be terminated from employment with the federal government.”
“Given the across-the-board enabling behavior by the Republicans — staff and members — think about what it must have taken for him to actually throw the flag down on her behavior,” Connolly said.