President Donald Trump has always demonstrated an almost mocking disregard for the Hatch Act, the 1939 law barring officials from using their official powers or positions to engage in partisan political activities. It is a core protection of good government but it has been primarily honored in its breach in this Administration, including violations by top White House staff that were barely acknowledged, let along addressed, by the President. The White House now faces a series of alleged violations over events and speeches used at the Republican National Convention. Mark Meadows, President Trump’s chief of staff responded that, while no one should violate federal law, ”Nobody outside of the Beltway really cares.” No statement better captures the culture at the White House in erasing the line of separation between official and political work by executive branch officials.

While there is debate over the specific violations of the Hatch Act, most of us agree that the speeches and events featured at the Republican National Convention shattered the principles of the Hatch Act and improperly used executive officials for political purposes.  The legal issue is whether there is a technical defense to these allegations.  In some cases, the answer is yes.  However, there is a stronger claim with regard to one speech. At a minimum, these decisions are worthy of condemnation by any citizens who still believe in the purpose and principles of the Hatch Act.

The Office of Special Counsel posts the various violations under the Hatch Act. I would like to divide the allegations into two groups: events and speeches. In my view, the stronger claims involve the latter rather than the former category.

EVENTS

I previously criticized the use of the pardon signing ceremony for John Ponder at the National Convention. It seems clearly timed for the use in the convention and, while I felt the ceremony and Ponder’s comments were moving, it made the ceremony a virtual campaign event. The President then used a naturalization ceremony in the same way.

I found both events troubling in terms of their use for the convention and troubling in terms of the Hatch Act.  While the President and Vice President are excluded from the Act, federal officials who are not excluded from the Act were used at these events. However, as I explained to the media, the White House has a technical defense.  It can argue that these were held as official events and the footage simply used later by the convention.

That is a valid defense. Many presidents have used events like naturalization ceremonies for images in their campaigns.  This was certainly raw.  The Trump White House reduced the transition from the official to the political to what seemed like minutes. However, I fail to see the viable legal distinction. These photos are made public and may be used by anyone without copyright violations. Indeed, we have used such White House photos.

I was interviewed by the New York Times with Daniel Jacobson, who worked on Hatch Act issues for the Obama White House. Jacobson referred to this point as a “loophole” while adding ”It doesn’t matter if you post it first — it’s your intent that matters.” I understand Jacobson’s point but I still disagree. I cannot imagine many judges drawing the distinction made on intent when identical acts could then be viewed as lawful or unlawful depending on the presumed motive. I assume that the White House secured a legal opinion drawing these lines and that further undermines the argument of criminal intent.

There is no question that these ceremonies could have been held a week earlier and later used in campaign events. Indeed, that has been done by prior presidents.  What is being suggested that is that this is too close in time and reveals an intention to violate the Act. However, I do not believe that there was a violation of the technical letter of the law rather than the spirit of the law.  If these events were first held as official ceremonies and then used later by the convention, there is a viable defense.  This means that the participation of acting Homeland Security Secretary Chad Wolf would also be lawful despite the call for an investigation.

SPEECHES

The second category contains the speeches during the convention. Specifically, the speech that I believe raises serious ethical and legal questions is the address by Secretary of State Mike Pompeo from Jerusalem. Pompeo is not exempt from the Hatch Act and his speech represented the first time that any sitting Secretary of State has addressed a political convention. The Trump Administration can rely on interpretations of the Obama Administration on such an appearance under the Hatch Act. However, in my view, it was wrong and likely a violation of rules set out by the State Department itself.  The consistent refusal of past secretaries to appear, let along speak, at national political convention is meant to protect the legitimacy and integrity of our national diplomacy abroad.  Our diplomats speak for the nation as a whole and this undermined that worthy tradition.

The State Department itself declares such a speech to be a violation, including memoranda signed by Pompeo. On Feb. 18, 2020, Deputy Secretary of State Stephen Biegun sent State Department employees an email repeating the limitations on the political activity of U.S. diplomats and other State staffers.  He stated “Senate-confirmed Presidential appointees may not even attend a political party convention or convention-related event.” That view is repeated in other memos.  Biegun further states “In my case, as a Senate confirmed Department official, I will be sitting on the sidelines of the political process this year, and will not be attending any political events, to include the national conventions.”

The State Department memos state that, if employees are in the United States, political appointees “other than a Senate confirmed presidential appointee” are permitted to attend outside of work “a partisan political rally, fundraising function, election party, meet-the-candidate event, or other political gathering as a spectator.” Pompeo is a Senate confirmed presidential appointee.  The memos repeat that bar on Senate-confirmed individuals in allowing employees to attend “a political party convention or convention-related event as a spectator, if you are a political appointee other than a Senate-confirmed Presidential appointee.”

The rules are even stricter when an employee is abroad, as was Pompeo.  In July, Pompeo’ sent out a memo reaffirming these clear rules for all employees working in diplomatic and consular posts.

A State Department spokesperson responded to these allegation by noting “Secretary Pompeo will address the convention in his personal capacity. No State Department resources will be used. Staff are not involved in preparing the remarks or in the arrangements for Secretary Pompeo’s appearance. The State Department will not bear any costs in conjunction with this appearance.”

That does not matter. Pompeo is a State Department employee covered by the rules.  Imagine the response if the chargé d’affaires in Jerusalem decided to address the Democratic National Convention. Moreover, whenever a Secretary of State travels, there are federal employees needed to supply security, scheduling and other logistical support.

Some have also said that Pompeo did not really “attend” the convention because this was a taped statement played at the convention.  That is a technical argument that should fail in my view.  Particularly during this pandemic, “attending” meetings and work has been widely defined as including virtual appearances.  Indeed, even Congress allows members to “attend” hearings virtually.

Finally, it is argued that Pompeo did this speech in his personal time. However, State Department officials are viewed as being on official duty whenever they are abroad. Moreover, such a view would gut the rules that Pompeo himself reaffirmed in his memoranda.

It is certainly true that cabinet members spoke at the Democratic National Convention for President Barack Obama, including then-Health and Human Services Secretary Kathleen Sebelius, Secretary of the Interior Ken Salazar, Secretary of Agriculture Tom Vilsack, and Secretary of Education Arne Duncan. Moreover, as we have previously discussed,  Office of Special Counsel (OSC) found that Sebelius violated the Hatch Actfor saying that it was “imperative” to reelect President Obama at another event and it also found that then-HUD Secretary Julián Castro, violated the Act in praising Hillary Clinton during a 2016 interview.  Even in the appearances in 2012, the Obama Administration recognized that this was a difficult question and specifically told the cabinet members to avoid using the title “Secretary.”

The Obama Administration later banned such speeches in the 2016 convention, but noted that it did not consider such a ban to be required under the Hatch Act.

The later ban was the right decision and it is worth noting that the media did not make the type of objections that we are hearing today over the legality of such appearances. My point is that the State Department has long followed clear rules that ban such appearances.

The Hatch Act has certainly been treated as a toothless tiger and has long suffered from vague terms and limited enforcement.  However, in my view, the Pompeo speech was not just wrong but could constitute a violation of the Hatch Act, though there are good-faith defense.  Yet, it clearly violated that rules of State Department which are more detailed and demanding of our diplomats.