The decision about whether to remove Conway is up to Trump. A senior White House official said Thursday the president is unlikely to punish Conway and instead will defend her. The White House counsel immediately issued a letter calling for the agency to withdraw its recommendation that Conway be removed — a request the Office of Special Counsel declined.
In an interview, Special Counsel Henry Kerner called his recommendation that a political appointee of Conway’s stature be fired “unprecedented.”
“You know what else is unprecedented?” said Kerner, a Trump appointee who has run the agency since December 2017. “Kellyanne Conway’s behavior.”
“In interview after interview, she uses her official capacity to disparage announced candidates, which is not allowed,” he said, adding: “What kind of example does that send to the federal workforce? If you’re high enough up in the White House, you can break the law, but if you’re a postal carrier or a regular federal worker, you lose your job?”
Conway did not reply to a request for comment.
In the past, Trump has privately dismissed concerns about the Hatch Act, sympathizing with aides found to have violated it, according to current and former White House officials.
The White House on Thursday said the agency’s assessment of Conway’s actions was “deeply flawed” and violated “her constitutional rights to free speech and due process.”
“Others, of all political views, have objected to the OSC’s unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees,” deputy White House press secretary Steven Groves said in a statement. “Its decisions seem to be influenced by media pressure and liberal organizations, and perhaps OSC should be mindful of its own mandate to act in a fair, impartial, nonpolitical manner, and not misinterpret or weaponize the Hatch Act.”
Legal experts said that if the president refuses to enforce Hatch Act violations, it will reduce the force of the law.
“He’s essentially writing the Hatch Act out of existence,” said Andrew Herman, an attorney in Washington who specializes in election law and congressional ethics and investigations. “He’s telling Congress, ‘I don’t care what you enact. I’m not going to faithfully meet my duties to make sure that the law is upheld.’ ”
Democratic lawmakers said the White House response sends the message that complying with the law is optional. Rep. Elijah E. Cummings (Md.), chairman of the House Oversight committee, said he will hold a hearing this month with the Office of Special Counsel about its findings and seek Conway’s participation.
Rep. Gerald E. Connolly (D-Va.), a member of the committee, said that Conway should resign and that if Trump does not act to fire or discipline her, he would support “legislative action.”
“We can’t have this,” he said. “We can’t have people violating the law with impunity when all other federal employees are subject to the Hatch Act, and they take it seriously.”
In its 17-page report, the Office of Special Counsel found that Conway repeatedly attacked 2020 Democratic presidential candidates while she was being interviewed by media outlets in her official capacity and tweeted about the candidates from her official account.
The agency noted that Conway attacked former vice president Joe Biden’s lack of “vision,” said Sen. Elizabeth Warren of Massachusetts spent “decades appropriating somebody else’s heritage and ethnicity,” and called Sen. Cory Booker of New Jersey “sexist” and a “tinny” “motivational speaker.”
During a one-week period leading up to the 2018 midterm elections, Conway posted at least 15 messages on Twitter that were political and in support of midterm election candidates or the Republican Party, according to the report.
“Her defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable,” the agency wrote.
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 a separate agency from the office run by now-former special counsel Robert S. Mueller III, who led the investigation into Russian interference.
The agency is led by Kerner, who was a career prosecutor in California. He has served on the Republican staff of the House Oversight and Reform Committee and was staff director under the late senator John McCain (R-Az.) of the Senate Permanent Subcommittee on Investigations.
The Hatch Act, also known as the “Act to Prevent Pernicious Political Activities,” was signed into law in 1939 by President Franklin D. Roosevelt. Then-Sen. Carl Hatch (D-N.M.) introduced the bill amid allegations that Democratic politicians gained an unfair advantage in the 1938 midterms through employees at the Works Progress Administration, a New Deal employment agency.
In a letter to Kerner this week before the agency released its report, White House counsel Pat Cipollone requested his agency withdraw its recommendation for Conway’s removal.
Cipollone wrote that the agency has inconsistently applied Hatch Act standards across Democratic and Republican administrations and said it did not provide Conway enough time to respond to its allegations.
The office has no legal authority to establish binding social media rules for federal employees and has applied an “overbroad interpretation” of the Hatch Act, Cipollone wrote.
“The White House takes seriously the principles codified in the Hatch Act and has continued to take affirmative steps to ensure compliance. At the same time, the White House must ensure that OSC exercises its significant authority in an appropriate and neutral manner,” Cipollone wrote.
The agency declined the White House’s request.
“OSC respects the White House Counsel’s Office but respectfully disagrees with their position, and will not withdraw the report,” said Zachary Kurz, a spokesman for the office.
Trump can simply decide not to follow the agency’s recommendation, legal experts said.
“Because Kellyanne Conway is a presidential appointee, the Office of Special Counsel itself does not have authority to discipline her,” said Daniel Jacobson, who worked on ethics and compliance matters at the White House Counsel’s Office during the Obama administration. “They can only recommend disciplinary measures, and it is up to the president to take up the recommendation or not.”
Jacobson said he could not recall a previous episode in which the agency recommended such drastic action against a White House appointee.
“How unique is this? I am not aware of any other time, to my mind, ever, where the Office of Special Counsel has recommended the removal of a White House presidential appointee,” Jacobson said.
The agency can prosecute violations by civil servants, mostly though the Merit Systems Protection Board. That board imposes discipline against anywhere from six to a dozen civil servants a year for Hatch Act violations, which range from suspension without pay for 30 to 90 days to firing, Kerner said.
Pattern of violations
Since Trump took office, Conway has been reprimanded for numerous ethics violations.
In 2017, she was upbraided for touting the clothing line sold by Trump’s daughter Ivanka Trump. The White House said Conway was “counseled” after that misstep, but no further disciplinary action was taken.
Conway has brushed off the findings.
Kerner said Thursday that her ongoing violations show “this is someone who simply isn’t going to stop.”
The reprimands of Conway are among a series of Hatch Act violations by Trump administration officials.
Others reprimanded by the Office of Special Counsel for political messages include former interior secretary Ryan Zinke; Stephanie Grisham, the first lady’s spokeswoman; Dan Scavino, former White House social media director; and Nikki Haley, former U.S. ambassador to the United Nations.
Trump often praises Conway on TV and appreciates the way she deflects questions and attacks his political enemies, current and former White House aides said.
“She’ll do the shows that nobody else dares go near,” Trump said in a speech last spring praising her. “She’ll just — I’ll say, do this one or that one. No problem, sir. Others say, sir, do you think I could take a pass, please, I beg you please. Great going, Kellyanne. Thank you. What a help.”
Since Trump took office, the Office of Special Counsel has fielded an unusually high number of queries from civil servants on both sides of the political divide about what is permissible for them to say in the workplace, agency officials said.
As the 2020 race is getting underway, federal agencies have been reminding employees that politicking at work is not allowed.
In the heat of a political campaign, federal employees cannot “engage in communications that are directed at the success or failure” of Trump or any other candidate, according to OSC guidance.
They can donate to a political campaign on their time, but they cannot solicit money or bundle campaign contributions for a candidate. And they can’t do anything official at work, including tweeting, that appears to endorse the president for reelection or endorse a Democrat trying to unseat Trump.
This week, acting defense secretary Pat Shanahan sent 750,000 Defense Department civilians two memos reminding them to limit “active partisan political activities or actions” on the job. The missives come in the wake of an episode in which the White House requested that the USS John S. McCain warship be kept out of sight during Trump’s visit to Japan.
Felicia Sonmez and Mike DeBonis contributed to this report.