The Office of Special Counsel (OSC) ruled in favor of President Donald Trump’s son-in-law and adviser Jared Kushner on whether he violated the Hatch Act in boasting Trump’s reelection in an interview. The Citizens for Responsibility and Ethics in Washington (CREW) has asked for the complaint to be reopened. There is an interesting twist in the case separate from the merits. The OSC rejected the claim not because it found Kushner’s comments were apolitical but because the interview was apparently not aired on television but was posted online. That seems like a bizarre and facially invalid distinction under the Act.
As we have discussed previously, the Trump Administration has had a long history of violations of Hatch Act, which remains the law in prohibiting electioneering activities by executive branch employees. There have also been alleged Hatch Act violations on the Democratic side and prior administrations have faced valid complaints. The Hatch Act can be a delicate balance for officials who are often asked questions that easily lead to a type of political advocacy or defense. However, the Trump Administration has had a litany of such complaints, including clear violations of the Act as we have discussed over the years.
This controversy was triggered by Kushner’s February appearance on CNN with host Fareed Zakaria where he defended the president in a piece captioned as a discussion of “Trump’s Reelection.” The discussion is clearly political and focused on the election and the Trump strategy:
“KUSHNER: Yes, I think there’s just a big difference between what the voters see and what the voters want, and from what the — what people maybe in the Washington or in the media are calling for. What we’ve seen since the impeachment started is that most people by the way are not paying attention to it. We’ve seen the president’s numbers go up by seven points. We got polling back last night that showed that the president’s approval rating nationally was over 50 percent. It was the highest that it’s been since right after the inauguration. So we’ve seen —
ZAKARIA: Yes, the RealClearPolitics average is more like 44 percent.
KUSHNER: I think it was about 46 percent, but again everything is relative, right? Again there is a lot of polls that were wrong in the last election. I think our data proved to be more right than the public holds and I think that it will continue to be. But I’ll also say about approval, though, is in the last election, when Romney ran, two percent of the people who disapproved of him voted for him.
In the last election, 15 percent of the people who disapproved of president — of Donald Trump as a candidate, and they’re voting for him. So look, I think his base is strong, getting stronger. Last night we were in Iowa, we had a massive crowd. We were around in New Jersey this week. About 160,000 people signed up for it. I mean, the energy that I’m feeling today was stronger than what we felt at the end of the campaign last year. I think that President Trump has not lost many supporters. If any at all. And I think that a lot of people who say well, what he’s talking about, now he’s actually done all the things he’s promised. He’s actually done more things than he’s promised. He got done criminal justice reform work done. He did promise he was going to do that. He did a lot of things that he didn’t even promise he was going to do.
And again, the American consumer has never been stronger. He’s created seven million jobs. You have 2.5 million Americans that have been — that have entered the work force, and 2.5 million Americans who’ve been lifted out of poverty, almost 10 million Americans that have come off of food stamps.
The numbers are unbelievable. But I will say this, the more time we spend in Washington and the more the administration gets better and better at it, and the more the president has his vision for what he wants to do, he believes that the potential for this country is unbelievable. And so as we finish implementing our deregulation agenda, our tax reform agenda, hopefully we’ll do more tax cuts as we, you know, focus on becoming energy independent, which is critical to our nation’s security, bringing down energy cost for people, folks on workforce training, training people for the future economy.
We have a lot of things. We have folks in the judiciary where the president has been very successful. The potential for making this country strong is unbelievable and the president has been very enthusiastic about what he’s been able to accomplish so far.”
That does seem to stray pretty deeply into electioneering under the language of the Act. Kushner is clearly identified as speaking as an adviser in the White House and Act prohibits the “use his official authority or influence for the purpose of interfering with or affecting the result of an election.”
The Hatch Act now appears honored primarily in the breach and this interview certainly danced along the edge of the law, if it did not blow past it. However, I am less interested in the merits than the technicality cited by the OSC. I think that there is a valid argument raised in CREW’s open letter to OSC Henry Kerner. I know of no precondition of a broadcasted interview or a particular form of media for violations. Such a distinction would be nonsensical and effectively gut the Hatch Act. It also ignores the shift over to online coverage and interviews.
What is particularly bizarre is that the OSC seems to view Kushner’s statements as unacceptable under the Act and confirmed that he did use his official title in the segments. However, the means of the communication appears to be determinative in the analysis.
The key prohibition is that executive branch employees from “us[ing their] official authority or influence for the purpose of interfering with or affecting the result of an election.” This has been violated in the past in a way array of forms. I think the OSC got this one wrong as a matter of law. It should rule on the merits and not the means of the interview.