Conway Found In Violation Of The Hatch Act By Special Counsel

Screen Shot 2017-11-26 at 10.09.44 PM.pngWe previously discussed the complaint filed by Walter Shaub, the former director of the Office of Government Ethics against White House Counselor Kellyanne Conway for violating the Hatch Act.  At the time, I discussed my view that the statements of Conway concerning the special Senate election in Alabama were clear violations of the Act.  The new report by OSC special counsel, Henry Kerner found two violations in Conway’s making highly political statements in her “official capacity” in November and December of last year in supporting Alabama candidate Roy Moore. Kerner, a Trump appointee, in a letter to President Donald Trump, called on President Trump to take “appropriate disciplinary action.”  However, the White House issued an almost immediate dismissal of the findings.  That was a mistake in my view.  The President can justify not firing Conway but, particularly for an Administration fighting what it considers politicized actions in the Executive Branch, the President should reaffirm the need to comply with the Hatch Act, Some have criticized the act, but it remains federal law.

The two violations occurred on CNN’s “New Day,” and on Fox News’ “Fox & Friends.”  On Fox,  Conway was introduced by the show’s hosts as a “counselor to President Trump” and shown standing on White House grounds. She discouraged voters from voting for  Democratic Senate candidate Doug Jones: “Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.”

On CNN, Conway again was introduced as “counselor to President Trump” and warned voters that Jones would be “for tax hikes,” “against border security,” “against national security,” “against the Second Amendment” and “against life.” She also denounced Jones as “out of step for Alabama voters” and told viewers that Trump “doesn’t want a liberal Democrat representing Alabama in the United States Senate.”

That all seems pretty clearly a violation of the Act. Formally entitled an Act to Prevent Pernicious Political Activities, the Hatch Act passed in 1939 “prohibits federal employees from using their official authority or influence to affect the outcome of an election.” Employees are warned on the Special Counsel site about expressing such political opinions as a federal employee:

May federal employees express their views about current events, policy issues, and matters of public interest at work or on duty?

Generally, all federal employees may discuss current events, policy issues, and matters of public interest at work or on duty. The Hatch Act does not prohibit employees at any time, including when they are at work or on duty, from expressing their personal opinions about events, issues, or matters, such as healthcare reform, gun control, abortion, immigration, federal hiring freeze, etc.  For example, while at work employees may express their views about healthcare reform, e.g., “I agree with healthcare reform.”

However, the Hatch Act prohibits federal employees at work or on duty from engaging in political activity. Political activity is activity that is directed at the success or failure of a political party, partisan political group, or candidate for partisan political office.  Thus, employees may not express their personal opinions on such events, issues, and matters if such views also are political activity.  For example, while at work employees may not express their views about healthcare reform tied to a candidate for partisan political office, e.g., “If you disagree with healthcare reform you should support candidate X.”

Finally, even when federal employees are expressing personal opinions that are permissible under the Hatch Act they should be mindful of how such views may be received by their coworkers and whether such comments are consistent with the Hatch Act’s underlying purpose of maintaining a politically neutral workplace.

Of course, Conway was not just speaking “at work or on duty” but on a national television interview concerning a political race in Alabama — and whether people should vote for one candidate.  Conway is clearly trying to influence the election when she states “Doug Jones in Alabama, folks, don’t be fooled. He will be a vote against tax cuts. He is weak on crime, weak on borders. He is strong on raising your taxes. He is terrible for property owners.”  In denouncing Jones a s a “doctrinaire liberal” in front of the White House, Conway emphasizes that “I’m telling you that we want the votes in the Senate to get this tax bill through,” Conway said, calling Jones a “doctrinaire liberal.”

5 U.S.C. § 7323(a)(1) was used in the case involving former Secretary of Housing and Urban Development Julian Castro in the Obama Administration.  Castro was found to have violated the Hatch Act. Notably, unlike Conway, Castro stressed that he was speaking as an individual and not a public figure when he was asked about the presidential election by Yahoo News anchor Katie Couric, even though he stressed that he was answering her political questions in his personal capacity:

“Now, taking off my HUD hat for a second and just speaking individually, it is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for President that we have this year.”

He then answered a question about his concerns with a Trump election and the low likelihood of his continuing in his position:

“What I am interested in, though, is trying to do a great job here at HUD and serving the people that we do serve, folks that are of modest means but who deserve our attention and our efforts. And so I don’t believe that is going to happen, but I am supportive of Secretary Clinton and I believe she is going to make a great president.”

Julián_Castro's_Official_HUD_PortraitThe similarities are quite striking.  If anything, Castro was more restrained, but in a letter to President Barack Obama, Special Counsel Carolyn Lerner stated

“OSC concluded that Secretary Castro violated the Hatch Act by advocating for and against Presidential candidates.  Secretary Castro’s statements during the interview impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.”

Similarly, in 2012, OSC found then-Health and Human Services Secretary Kathleen Sebelius violated the law when she gave a speech to a gay rights organization that included an aside comment favoring Obama’s re-election.

To the credit of these prior administrations, they accepted the results and pledged to take action.  Instead, White House deputy press secretary Hogan Gidley issued an effective rejection of the conclusions of the Special Counsel:

“Kellyanne Conway did not advocate for or against the election of any particular candidate. She simply expressed the President’s obvious position that he have people in the House and Senate who support his agenda. In fact, Kellyanne’s statements actually show her intention and desire to comply with the Hatch Act — as she twice declined to respond to the host’s specific invitation to encourage Alabamans to vote for the Republican.”
Again, none of this means Conway should be fired, but it is not accurate to say that her statements were compliant with federal law.  Moreover, this is the third finding fo Hatch Act violations in the Administration. Both White House social media director Dan Scavino and US ambassador to the UN Nikki Haley have receivedreprimands or warnings from OSC for political statements on their official capacities.
Moreover, Conway is a lawyer (and one of my former law students) who should be aware of these limitations.  We previously discussed the violation of federal rules by White House counselor Kellyanne Conway in the endorsement of a commercial product.
The White House should release a statement confirming that it will act in conformity with the findings by its own appointed Special Counsel and that steps will be taken to assure compliance with federal law.  That burden will fall on White House Counsel McGahn, who will lose considerable credibility if the press office will be seen as addressing (and dismissing) this problem.

 

48 thoughts on “Conway Found In Violation Of The Hatch Act By Special Counsel”

  1. Who actually is – or is not – covered by the Hatch Act? Are Congressional staffers forbidden to express partisan viewpoints? Which – if any – White House employees are exempt?

  2. Just a side thought while time is wasted on exteraneous nothing we still don’t have a FY18 budget passed and the budget for FY 19 which kicks off October 1st in just a bit over six months from now sits while Congress plays games and takes phony vacations while phony filibusters feature no one filibustering but just playing with their tweeties.

    The last time had federal budget was….about three years ago. according to some sources but two things we know for sure we can now call it the national Federal Budget Obstruction Act for FY18 which started last October and it’s nine years before matching the 12 year without a budget record of Lebanon and yet they have time for phony and all too real vacations, to cash pay checks for not getting their work done, and fiddling around with nothing much of importance.

    Watching the continuing resoution votes I see very little being down by the left who are also the first to complain.

    And these jack’n’jill offs want to get re-elected?

    What ever for?

    This concept of one government party is somehow not working and has nothing to recommend it’s continued existence so how about we go back to a multi party system or better yet ban the failed party system altogether.

  3. “appropriate disciplinary action.”

    **********************************
    This is the equivalent of a traffic citation where the offender sets the fine. I’d say make her stand in the corner of the Oval Office — no mean feat — without her lunch during her break. Oh, and she can clap erasers after the press briefing, too.

    1. Mespo good idea but Iwouldn’t even set that sort of precedent given the war ain’t over yet

  4. Hillary Clinton clearly and deliberately obstructed justice by deleting 30,000 e-mails using BleachBit.

    No intent there.

      1. it is until she’s charged, tried,, convicted and punished along with her sex offender husband until then De Guello.

        1. Good thing you’re not an attorney. “You honor, I don’t care if this young man shot five people in the park. Hillary walks free, so you must acquit!”

    1. Haven’t you neard first neither did Hillary but then where Hillary is concerned intent is not an element of the crime and matters not either way.

  5. There is a long history of people from the whitehouse expressing views in political elections.
    There would be no one to speak on the sunday talk shows otherwise.

    I do not know the letter of the hatch act, but clearly elected officials and political appointments as opposed to carreer government employees are permitted to express views on politics.

  6. Reblogged this on kommonsentsjane and commented:
    Reblogged on kommonsentsjane/blogkommonsents.

    Yes, have to agRee – the law is the law is the law. But, Turley doesn’t seem to be grave digging with the democrats who have clearly obstructed justice in so many ways that Mueller the grave digger of substance at the moment is tHe gum shoe whose shoes have gotten stuck in one track which is “Trump”. Mueller has committed the biggest crime but yet he is investigating himself?

    According to what the real crime is with the government (Obama) and you are knit-picking with the Hatch Act.

    My suggestion is that Trump give her 30 days’ time out w/o pay.

    The whole jest here is – the piss ants media is trying to cull out the
    Trump supporters so that he can’t continue to MAGA.

    Plain and simple.

    kommonsentsjane

  7. If she was acting as a direct agent of the president, speaking for him and not herself personally, then wouldn’t that give her cover for HatchAct violation? Since the prez CAN do that.
    I thought the Admin gave a plausible defense.

    1. True but why set the first precedent of being the only time that Act was enforced unless iyou want it before soon to be friendly supreme court as unconstitutional on it’s face. Let the left set the precedent and then when it’s tossed all the more reason to crush them once crush them twice crush them once too often must have hit a spring or some damn thing for now they are in their coffin. Whoopsie No intent! No intent!

    2. That’s where thexe discussions usually stop when the perps of the discussion realize it’s a very sharp two b bladed axe against which they have zero defense.

    1. as well as the Awan bros and their congressional employees, Seth Rich (why isn’t Mueller talking to Assange and Kim Dotcom??), HRC private server and on and on and on….

    1. Precisely. I wonder why there was never an issue when Obama and Hillary would stump for various Democrats running for office? Showing up at their rallies. . .endorsing them, while they were, simultaneously, federal employees. Why weren’t those instances considered to be flagrant violations of the Act? This is just a lot of bs. . .an attempt to throw as much spaghetti, up against a wall, and see how much will stick. A sad and transparent attempt to try to heap as much as possible, against Trump’s circle, in an effort to see what will stick. A hope that, even when the dust settles, and the public is informed that nothing has been found to have been wrong, all which will be remembered is the unsubstantiated accusations. Routinely, during the Obama and Clinton administrations, members of said administrations were on various news shows, smugly stating their unequivocal beliefs about any array of topics. Oh, that’s right, those were different.

      1. But you don’t really wonder, do you? If you actually wondered, you could have googled that and found out in 5 seconds that the Hatch Act doesn’t apply to the President or Cabinet members, whose jobs are acknowledged to be inherently political. (Hence why nobody cares about the President stumping for Moore, Handel, et al.)

        Nope, you just wanted a nice little whataboutism rant to start your day and you decided to phrase things as questions to do it.

        Don’t do that, it’s transparent, boring, and a bit sad.

        1. If you bothered to read all of what I wrote, which I suspect that you did not, I specifically stated that there were members of previous administrations who routinely were involved in the same activities. Routinely. Talk about sad. . .learn to read. . .carefully. The media is having a field day with this administration. A field day. Every time someone farts, there is a cry of inappropriate and illegal activity. Insanity. What is sad and pathetic is that people like you can’t see what is occurring, willing to call this Insanity out for what it is–a sad and pathetic attempt to discredit and destroy anyone or anything associated with this administration. Transparent enough for you?

          1. You wrote “Routinely, during the Obama and Clinton administrations, members of said administrations were on various news shows, smugly stating their unequivocal beliefs about any array of topics.” You’re right about people in those administrations as well as members of the current administration and all others in recent history. The Hatch Act does not generally forbid making smug statements of unequivocal beliefs about an array of topics. It forbids the type of statements Conway made.

            1. And. . .Richard. . .just how would you know that the type of statements, made by others, similarly situated, were NOT the like type of statements attributed to Conway? The answer is–you wouldn’t. You, like everyone else, wait–wait to see what is covered and sensationalized in the media to start howling about inappropriate comments; however, if the media ignores such comments, because they come from members inhabiting the correct side of the isle, then you would never know about those comments, now would you? The media is quite selective in what it covers and what it doesn’t cover. Unless you have every show taped, where you listen to these news programs, 24/7, your statement about no one else, in previous administrations, making similar statements, is simply hogwash. You don’t know about the things which are never covered or discussed.

              1. I never said that no one in other administrations had violated the Hatch Act. During both of the last two administrations there was press coverage of investigations into alleged violations of the Act. However, it is really not that difficult to refrain from violating it, and people who do should be called on it. The higher the position, the louder misconduct should be called out.

    2. No, it’s wrong when anybody does it. But a sense of perspective reveals this to be a mote, while logs are being ignored. For punishment, I think this should go on Conway’s Permanent Record!

      Squeeky Fromm
      Girl Reporter

      1. 1 Judge not, that ye be not judged.
        2 For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again.
        3 And why beholdest thou the mote that is in thy brother’s eye, but considerest not the beam that is in thine own eye?
        4 Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?
        5 Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother’s eye.

        — Matthew 7:1-5 KJV

        I love a good King James version quote. “Mote” is just a great word. Can “filthy lucre” or “begat” be far behind?

      2. then deleted. It’s a violation of freedom of speech and the whole representative constitutional republic political system to let any whiff of left wing socialist fascist elitism taint the very air we breathe.

  8. Didn’t Obama try to interfere in the Brexit vote? =) But maybe openly involving oneself in foreign elections isn’t illegal =)

  9. She didn’t even try to pretend she was taking off her counselor to President Trump hat before making the statements. I don’t see any difference between what she did and Castro. That being said, this seems to be a law like FARA that enables violations first and then allows the violators to correct their violation later while receiving insignificant penalties.

  10. Leaving the mindless drivel of the party member at all costs aside helinski nailed it. Why stop with conway? Why not indict and fine himself obama and all other presidents in pasado and oh yes both parties running and supporting anyone for office in presento especialy all those in government bureaucracy who exercised money as free speech by donating to the DNC in the last election.

    Now as to the penalty only the President has the power to levy punishment as he sees fit. so. we wipe out that free speech law in one swoop and drain the swamp big time by dismissing any who donated in the last election. Add to that any who wore T shirts, had bumper stickers all of that. were overheard to have mentioned anything in favor of or against one or the other candidates.

    Then Fishwings dream of a straight up hands down fascist nazi party would come true in an instant.

    Not sure why that act hads never been repealed only a left wing extremist of the National or International Socialist genre would and certainly zero citizens of the USA and it’s representative Constitutonal Goverenment unlike fishwings would support it.

    So if fishwings is indeed a real personw which i doubt but suspect is just a mindless meachine part of The Collective of The Party but he was yes I plead guilty to ad hominem in defense of my country and in full support of my oath of office to the Constitution but…

    I suspect ad machina would serve and be far more correct.

    On the other hand if you wish to contest being termed something more odious than a fascist of one stripe or another file a charge and bark at the moon.

    1. In your your world of post-factual post ethical views, I just try to battle ignorance on steroids. But in your case, That train has left the docks.

        1. Current restrictions

          (See U.S. Office of Special Counsel “Hatch Act for Federal Employees”)
          Permitted and prohibited activities for employees who may participate in partisan political activity

          These federal and D.C. employees may:

          be candidates for public office in nonpartisan elections
          register and vote as they choose
          assist in voter registration drives
          express opinions about candidates and issues
          contribute money to political organizations
          attend political fundraising functions
          attend and be active at political rallies and meetings
          join and be an active member of a political party or club
          sign nominating petitions
          campaign for or against referendum questions, constitutional amendments, municipal ordinances
          campaign for or against candidates in partisan elections
          make campaign speeches for candidates in partisan elections
          distribute campaign literature in partisan elections
          hold office in political clubs or parties

          These federal and D.C. employees may not:

          use official authority or influence to interfere with an election
          solicit or discourage political activity of anyone with business before their agency
          solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
          be candidates for public office in partisan elections
          engage in political activity while:
          on duty
          in a government office
          wearing an official uniform
          using a government vehicle
          wear partisan political buttons on duty

          1. the kicker

            The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. It prohibits using any public funds designated for relief or public works for electoral purposes. It forbids officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support.

            It provides that persons below the policy-making level in the executive branch of the federal government must not only refrain from political practices that would be illegal for any citizen, but must abstain from “any active part” in political campaigns, using this language to specify those who are exempt:[7]

            (i) an employee paid from an appropriation for the Executive Office of the President; or
            (ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in the nationwide administration of Federal laws.

            Conway was not below the policy making level. Nor were the President(s) nor Vice Presidents nor cabinet members for starters.

  11. Well,well,well.
    I dare say that Obama was a federal employee. And if you go back and expose the numerous opinions of his , he would of been a violator as well. Same is true for the the present occupant on Pennslyvania Ave..

      1. Agencies and employees prohibited from engaging in partisan political activity

        Employees of the following agencies (or agency components), or in the following categories, are subject to more extensive restrictions on their political activities than employees in other Departments and agencies:

        Administrative law judges (positions described at 5 U.S.C. § 5372)
        Central Intelligence Agency
        Contract Appeals Boards (positions described at 5 U.S.C. § 5372a)
        Criminal Division (Department of Justice)
        Defense Intelligence Agency
        Federal Bureau of Investigation
        Federal Election Commission
        Merit Systems Protection Board
        National Geospatial-Intelligence Agency
        National Security Agency
        National Security Council
        Office of Criminal Investigation (Internal Revenue Service)
        Office of Investigative Programs (Customs Service)
        Office of Law Enforcement (Bureau of Alcohol, Tobacco, Firearms and Explosives)
        United States Office of Special Counsel
        Secret Service
        Senior Executive Service

        (career positions described at 5 U.S.C. § 3132(a)(4))
        Permitted and prohibited activities for employees who may not participate in partisan political activity

        These federal employees may:

        register and vote as they choose
        assist in voter registration drives
        express opinions about candidates and issues
        participate in campaigns where none of the candidates represent a political party
        contribute money to political organizations or attend political fund raising functions
        attend political rallies and meetings
        join political clubs or parties
        sign nominating petitions
        campaign for or against referendum questions, constitutional amendments, municipal ordinances

        These federal employees may not:

        be candidates for public office in partisan elections
        campaign for or against a candidate or slate of candidates in partisan elections
        make campaign speeches
        collect contributions or sell tickets to political fund raising functions
        distribute campaign material in partisan elections
        organize or manage political rallies or meetings
        hold office in political clubs or parties
        circulate nominating petitions
        work to register voters for one party only
        wear political buttons at work

        Additionally, one of the early consequences of the act, were disparate court rulings in union busting cases which forbade the use of voter information from initiative and recall petitions for any purposes outside the intended elections.

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