The 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.