Did Dan Scavino Violate the Hatch Act?

Twitter LogoThe Trump Administration has proven to be something of a perpetual motion machine churning out novel ethical and constitutional issues from emoluments to nepotism.  The latest involves Dan Scavino, the White House social media director, after he went to his personal twitter account to call for the defeat of Michigan Rep. Justin Amash as a “liability” to the GOP. Amash was one of the conservative members of the Freedom Caucus to bar the effort to replace Obamacare.  The tweets have raised questions under the Hatch Act as a form of political advocacy from the White House — a position endorsed by Richard Painter, a chief White House ethics lawyer under President George W. Bush.  I am less convinced.

The Hatch Act was enacted in 1939 as the brain child of  Sen. Carl Hatch (D-N.M.).  Known as An Act to Prevent Pernicious Political Activities, it prohibits political activity by executive branch employees with the exception of the president, vice-president, and other designated high-level officials of that branch.  The problem is that the Act is both vague and rather dated. It obviously preceded new forms of communications like social media.  While the Act lays down the bright line distinction between personal and official conduct, that line is less than obvious in the age of instant communications and multiple platforms for communications.  What is clear is that you cannot  engage in “political activity while on duty or in the workplace.”

In the case of Scavino, he sent the following on a Saturday from a private account:

 

 

There is little question that this is political activity but employees are allowed, within some limitations, to engage in political communications outside of their work in the Executive Branch.  This was a private Twitter account with a message on a Saturday.  Given the first amendment interests, courts will ordinarily require clarity in such prohibitions and that clarity might raise significant free speech issues when extended to communications on private sources.  We have been discussing such controversies with regard to other public employees. I have previously written about concerns that public employees are being disciplined for actions in their private lives or views or associations outside of work. We have previously seen teachers (here, here, here, here, here, here, here, here, here, here, here, here, here) students (here, here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

I do not see a strong basis for discipline based on the strict interpretation of the law.  That does not mean that this is a good practice or that the White House Counsel could not reprimand Scavino for violating the spirit of the law.  This is also a poor idea politically.  Not only does a White House staffer not need to take on this role directly, it is likely to backfire with a number of members who do not like being publicly bullied.

Critics have noted that Scavino lists his White House title in his bio and his picture on the Twitter site is hard to distinguish from his official site.  That however does not clearly violate the law.  Again it was unwise of Scavino to reference his position in earlier tweets on his private account but that is a matter for internal discussions with the White House Counsel.  There is no clear rule barred such reference so long as he is not claiming to be speaking in that capacity.  Scavino clearly pushed this to the line which is both unwise and unnecessary.

In the end, I am not convinced that this is a clear violation.  If Congress wants a broader application of the law, it should amend the law.  To do so however there should be a discussion of the countervailing free speech issues.

 

16 thoughts on “Did Dan Scavino Violate the Hatch Act?

  1. This is the old, legal, ‘I had my fingers crossed.’ routine. There is always the law, the interpretation of the law, and the manipulation of the law. If you read from a left wing position, he stepped over the line. If you read from a right wing position, he was within his rights. That old line just can’t seem to get itself to stop moving.

    • That old line has more twists and turns than a Texas congressional district boundary. 🙂
      (I can say that; I’m from Texas.)

    • i would rather see the days of no donations from government offices, employees or pretend citizens and no government employees unions. Not like they are really needed. The line is up and down ….left and right is a term of the foreign ideology. Top to bottom. Citrizens, Family Country, Government Employees (Temporary)

  2. This fits into my “Metal Folding Chair” School of Morality. Which in brief is, if a bad wrestler hits you with a metal folding chair, hitting him back with one is not only acceptable, it is morally required.

    Like we are supposed to worry about the Hatch Act all of a sudden??? In the post Eric Holder and Lois Lerner days??? Sorry, but I have better things to do with my time. Like Alan Russell’s “Lost Dog” book. The third in his Gideon and Sirius series.

    Squeeky Fromm
    Girl Reporter

    • Squeeky,
      Agreed. Although we are technically a constitutional republic, we function like a utilitarian democracy. This massive bureaucratic state wasn’t created because people looked for constitutional means to produce the ends, but rather they looked to ANY means necessary to produce those ends. The means used were decided by the majority in power. The majority of course being in place because they convinced their constituents the ends were “just”, or more specifically “for the greater good”.

    • Squeeky – I think it is more of an ethical issue than a moral one. You have an ethical right to hit him with the closed chair, however you are not morally obligated.

  3. The question that should be asked is did Scavino use the knowledge he gained from his job in the public sector for advocacy using his private account? How different is this from the laws on insider trading?

    All of this pales in comparison with the weaponization of government agencies.

  4. I had a client who was a state employee (Div. of Employment Security) who was advocating that the employees join a union. She put up a sign which said: PTL. It did not mean Praise The Lord but Pay The Lobbyist. She got disciplined. The lawsuit we filed was on First Amendment freedom of speech and freedom of association grounds. At oral argument in the 8th Circuit they had brought on board a district judge from Swamp territory. I won’t say which state we were in. When the argument began he asked some questions and I said: “Hatch Act” Hatch Act. Somehow that got his attention.
    The Hatch Act has a lot of dimension.

  5. Elements of government are exempt from insider trading, Method of communicating MIGHT involve if he cast himself by official title or just by name. But since there is no such thing as insider knowledge or control thereof by virtue of help of the former Democrats now IS Immaterial Socialists well you leave the tools in place out of arrogance and they bite the donkey that fed them.

  6. Please, before they handcuff Scavino, please impeach and/or arrest that Progressive hag Ruth Ginsburg from the SCOTUS. She has done all but say Trump does not deserve the office, and that HRC should occupy the seat. So much for SCOTUS being impartial arbiters of truth and justice.

    Put that walking horse face out to pasture already.

    • that Progressive hag Ruth Ginsburg from the SCOTUS
      ___________________

      Stay classy, Joey… stay classy…

      Da libruls! Da libruls! Da Libruls! Da libruls! Da libruls! Da Libruls! Da libruls! Da libruls! Da Libruls!

      And always that odor… an overused restroom on a midwestern freeway at the end of hot summer day…

      You guys, and girls, are a HOOT!

      • I am with a gal from Hooters right now and know what you mean. She gave me time off for good behavior an hour ago to type on the computer. Her name is Sally.

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