”Nobody Outside of the Beltway Really Cares”: The Trump Administration Faces New Allegations Of Hatch Act Violations [Updated]

donald_trump_president-elect_portrait_croppedPresident 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.

49 thoughts on “”Nobody Outside of the Beltway Really Cares”: The Trump Administration Faces New Allegations Of Hatch Act Violations [Updated]”

  1. To even mention the Hatch Act in the light of what we are discovering about the obama administration’s corruption of the executive office takes real nerve if not just plain willful ignorance.

    1. My thought exactly. Obama weaponized the FBI, CIA, and the FISA court against his political opponent.

  2. And Obamacare is unconstitutional, which means illegal, which means a violation of fundamental law.

    I don’t see Dear Leader Obama in prison. Oh, and would spying on President Trump and the broader Obama Coup D’etat in America be legal?
    _________________________________________________________________________________________________________________

    “Court strikes down Obamacare’s individual mandate as unconstitutional”

    The Trump administration backed an effort by Republican attorneys general to invalidate the Affordable Care Act.

    Dec. 18, 2019,
    By Pete Williams

    WASHINGTON — A federal appeals court ruled Wednesday that the individual mandate in the Affordable Care Act, better known as Obamacare, is unconstitutional. But it sent the case back to the trial judge for another look at whether the entire law is invalid or if some parts can survive.

    The nature of the decision and the fact that it comes so late in the year make it highly unlikely that the Supreme Court will weigh in on the fate of Obamacare during its current term, which ends in June.

    “Anything is possible, but it would require extraordinary effort,” said Tom Goldstein, a Washington lawyer who argues frequently before the Supreme Court.

    By a 2-1 vote, the 5th Circuit Court of Appeals in New Orleans agreed with Texas and 17 other red states that the key part of the law is unconstitutional — the provision that requires all Americans to buy insurance or pay a penalty on their income tax.

    – NBC News

  3. Again and again his supporters think laws don’t apply to Trump, it doesn’t matter they say, it’s not really a law they say, and on and on with the alternative facts and outright denial of the truth. “Either you deal with what is the reality, or you can be sure that the reality is going to deal with you” Alex Haley

  4. I want to see the Coup members Hang publicly for their TREASON. The Democrats keep investigating to keep the focus off their crimes… But America sees their crimes and wants them to pay. Something better happen soon.

  5. Every act by everyone is a political act. Pelosi tearing up the State of the Union speech in the Capitol was a political act. The impeachment was a political act. Tweets by State Dept. and Justice Dept. employees who hate President Trump are political acts. Should those people be prosecuted?

    Prosecuting Trump Admin. officials under the Hatch Act should occur when John Kerry gets prosecuted under the Logan Act.

  6. I understand and appreciate that we need to hold all in office to the same standard (which the Professor nearly always does), but realistically, if we put Trump’s malfeasance on a scale with the DNC and their various associations’, the DNC side would bore a hole through the earth straight into outer space. Rightly or wrongly, Trump’s actions are annoying, whereas the modern DNC in totality is a profound threat to our personal freedom the likes of which we have seldom seen in this country, one that could have ramifications across the entire globe over time. That’s all there is to it in my mind, and I’m voting accordingly. I do appreciate the all-inclusivity of the Prof’s posts though, it’s critical to see the full picture of things, and I also appreciate the attention to detail and history regarding the law (from the audience as well!).

    1. I agree James, completely. As long as the MSM is going to function as the propaganda arm of the Democratic party, then I absolutely support this administration finding any means necessary to inform the citizens of this country about what it has been doing for the last 47 months. The Democrats could challenge them on the validity of the content, but the facts get in the way of their truth. So instead, they will do everything in their power to silence the messenger, so the American people remain dis-informed.

  7. “However, I do not believe that there was a violation of the technical letter of the law rather than the spirit of the law. ”

    Shocker.

    ” 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. ”

    Good article, Turley. Glad there’s a progression from the ‘it doesn’t quite rise to the level of illegality’ mantra forward. Not for lack of material to be considered. Good to see you’re open-minded enough to rise above.

  8. Who the damned hell cares the dem/communists do the same thing and have for years.It only matters if a republican does it and I just don’t see that they did.The dem/communists are the most two faced bunch of liars I have ever seen just like the communists they have become.

  9. ”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.

    No President has worked this device, the acclimating of the public to improper behavior, like Trump. All politicians push the envelopes, whenever it suits them. However, Trump has always made it his modus operandi to create in himself a precedent for working outside the law. When he and his Dad were charged and fined for racism in restricting Blacks from renting their apartments, Trump and Trump paid the fine but did not admit guilt. This allows in the mind of Trump, innocence and a platform of precedence to continue on breaking the law. Trump requested assistance from a foreign power to help him defeat Biden. The only way Trump did not get canned for this was because the Senate was Republican. It works because enough of Trump’s supporters appreciate this disgraceful behavior, in fact applaud it. They like their tough guy, regardless of how he erodes the responsibilities of leadership to the people. Trump is the single most dangerous ingredient in reducing America to one of those sh*#%ole countries. The only thing missing is a general’s uniform with a big hat and lots of medals. Trump, America’s shame, disgrace, and enemy.

      1. How about subverting public health agencies (the FDA and CDC) to try to manipulate the pandemic statistics solely for political purposes, something no other presidential candidate has done? He bullied the FDA to give emergency approval for hydroxychloroquine because he used our tax money to stockpile a large quantity of the drug, even though it was unproven. Science got in the way and approval was withdrawn, but Trump did this so he could look like a hero, doling out the drug, thinking it would help him politically, and because he is clueless as to what to do to address the pandemic. He bullied the FDA for emergency approval of convalescent plasma treatment, even though it has not been tested, and we don’t know how long it might protect a victim of COVID, what the dosage should be, or even whether it is safe. He’s trying to get a COVID vaccine at “warp speed”, even though no drug researcher or public health official recommends ignoring scientific principles on testing and efficacy. He bullied the CDC into recommending testing only for symptomatic patients, even though we know 40% of positive cases are asymptomatic, and they will spread the infection to others.

        These things will result in unnecessary deaths of Americans, which might include myself and those whom I love. All for the ego needs of a failed former businessman/game show host who cheated to get into our White House with the help of Russia and who is drunk on power. Republicans allowed him to cheat and get away with it. The bottom line result is: AMERICANS CANNOT TRUST OUR GOVERNMENT TO PROTECT OUR HEALTH IF DOING SO MIGHT HURT TRUMP’S CHANCES FOR RE-ELECTION. It’s all about him, not us.

        As to the Hatch Act, he illegally uses our property for his campaign purposes, another campaign prop, like the US flag, conducting a naturalization ceremony and a staged presidential pardon, all for show, something no other president has ever done. Yes, we Americans DO care about the Hatch Act and using our properties for campaign purposes.

    1. Tell you what, Isaac.

      Let me know when Trump starts destroying sovereign nations, and assassinating its leader, like Obama and Hillary “We came. We saw. He died” Clinton did to Libya.

      You’ll have to forgive me if I find that to be a much more important transgression than anything Trump has done since he took office.

      BTW, Barry was on his way to doing the same thing in Syria, until Putin ate the community organizers lunch in front of the entire world.

      1. Trump kowtowed to Turkey and threw the Kurds to the wolves; after the Kurds were the main instrument allied with the US against ISIS.

        Trump pulled out of an economic agreement that included the Pacific Rim countries that specifically excluded China, a pact that was designed in large part to contain China. Trump then inflicted on Americans higher costs of goods imported from China and other countries to make a point, at the expense of the American consumer and manufacturer; not to mention US agriculture.

        Trump turned his back on Europe economically which lead directly to Europe making a 600bn$ trade agreement with Japan.

        The primary movers and shakers in the world have been Europe and America working in unison. Together Europe and the US could design strategies to offset China’s rapid rise to economic dominance. Trump has been working against this from day one.

        China has over 1.3 billion consumers/potential consumers. Over 500 million Chines consume at the same level as Europeans/Americans. There will come a point when China’s consumers will be the primary reason for its manufacturing and it will be unable to produce cheap goods. This is the way of the future for all countries. The nations that consume will be obligated to either find cheaper sources of goods or manufacture those goods theirselves; as it was originally. The road to this sort of self sufficiency has been poorly navigated by Trump. Trump’s tariffs have added cost to raw materials, cost to imported goods, lowered profits from exports, etc. Trump’s tariff wars have been and continue to be stupid. Tariffs and all the associated arguments have been going on since the beginning of time and in such a way where no one country was impacted detrimentally.

        Washing machines are still being imported and in greater numbers. They just cost more. American manufacturing spends more for taxed raw materials and has seen little to no increase in jobs. The jobs haven’t been increased, only the baby boomers have retired and openings are more available. Low unemployment after a while leads to higher compensation etc. Hour for hour as far as work efficiency goes the US worker is way down the list. Americans work longer hours with less control over their lives. Trump’s chaos routine has cost the US enormously. Russia and China are laughing.

        Trump did everything he could to downplay the Covid-19 pandemic for six + crucial weeks while it raged out of control. Trump stood agains wearing masks, for ignoring restrictions, and played the idiot for months while statistics, science, and reality proved him wrong and people died by the tens of thousands. Trump has failed to act proactively and aggressively in dealing with Covid-19. The core philosophy of Trump is ‘We’ll wait and see.’ The examples are there world wide to see. Those that jumped on the problem have fared far better, less deaths, etc.

        Take a moment to reflect instead of defending this disgrace of a human being, let alone President.

      2. WTH Rhodes? You DON’T LIKE that Jesus Obama incinerated with a drone strike 16 year old child American citizen Muslim Anwar Al-Awlaki, without judicial charge, just because Obamy added Anwar’s name to a SECRET KILL LIST? Why NOT? WTH is wrong with THAT? Do you find something WRONG with that? Picky, picky, picky……..

  10. Good column JT. I posted the State Dept guidelines on this here a couple of days ago.

    Like lying, Hatch Act violations have been committed by other administrations, but never as blatantly and constantly as with Trump, the staged ceremonies and speeches on federal property (including the WH) being only the most egregious. Our Trump apologists here will rue the day they applauded this behavior and made it the new normal. Lowered bars let everyone in.

  11. If it is agreed that Sec. Pompeo violated the Hatch Act, what are the consequences, repercussions and penalties…other than incessant bluster from the Democrats

    1. Precisely. The point of the Hatch Act was to inhibit the use of the federal civil service as a political machine. If I’m not mistaken, there’s an explicit exception for patronage employees, which the Secretary of State certainly is. The professor is beclowning himself by taking these complaints seriously.

      1. “the first time that any sitting Secretary of State has addressed a political convention.”

        I don’t believe this is accurate, Professor. I believe this occurred in 1972. I think your point about Pompeo always being on duty while abroad is well taken. My impression was that his conduct was not a violation of the Hatch Act but was a violation of department rules. You made me reconsider that.

        That having been said, numerous department heads have talked at conventions since 1972. Is there a basis to treat State differently? I fear that the Hatch Act has led to a lack of credibility of institutions, not the reverse. Cabinet appointments are political actors, whether the Hatch Act exists or not. It forces known political actors to come up with ways to violate the spirit, not the letter of the law, creating circumstances like the one at present. The general public again sees politicians flouting the law without worry in a way normal Americans cannot.

        1. Athanatos , as JT points out, the State Dept has it’s own guidelines which are separate from the Hatch Act and the reasoning – which has been respected previously, your claim of 1972 being true or false – is maintaining the integrity of an officer who deals regularly and officially with foreign governments. Whether legally prosecutable or not – probably not – I hope we can agree that the practice is a good one.

        2. but was a violation of department rules.

          He’s the Secretary of State, not the consular officer of South Succotash.

  12. Thank you for this piece. At least someone is trying to bring light to the issues in relation to the practices of this administration. In my mind the skirting of laws just enough to avoid prosecution but in otherwise corrupt and immoral ways seems typical of Trumps lifelong behavior mode

    1. Multiple cabinet secretaries spoke at Democratic conventions during the Obama regime. The professor’s complaint is twee and you’re an attitudinizing fraud.

      1. “This is absurd x ? says: “The professor’s complaint is twee and you’re an attitudinizing fraud.”

        And you’re an old windbag. Go do something useful — if that’s even possible.

    2. Martha, I much prefer Biden’s under-the-table corruption, especially the kind that financially benefits him and his family.

  13. The State Department is full of (surprise) statists, and has needed to be completely cleaned out and overhauled for decades.

    It is amazing how few people understand that the State only exists to serve We the People, not the other way around.

    Pompeo is a plant for the neocons and neolibs who are extremely upset that Trump has put the brakes on the endless Middle Eastern wars. War is by far the most profitable business on the planet. Not just in terms of monetary profit, but also in terms of control. Control is everything to the war profiteers. They know that if they fail to maintain control, they lose everything. Including their lives.

      1. “There are only two things we should fight for. One is the defense of our homes and the other is the Bill of Rights.”

        – Smedley Butler

  14. What about the DNC we’re more time was spent attacking Trump than explaining the parties plans for the future. If you want to compare apples to apples be accurate

    1. Mr. Turley, get back to us when the democrats start following any manner of statute or law or political decorum.
      I am not saying you are wrong, but the time for only calling out one side is over. The democrats cannot even spell ethics.
      Give me a break.

      1. The Democrats want us to believe they, and only they, hold the moral high ground on racism, on truth, on justice, on the right side of history…blah blah blah…..or so they keeping telling us thru their media shills and mouthpieces, of course. Hey Democrats, give us a break.

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