GOP brushes off charge convention tactics violate law
Among the many things on display at this week’s Republican National Convention is the current toothlessness of a 1939 law called the Hatch Act, which prohibits employees in the executive branch of the federal government from taking part in partisan political activity.
On Tuesday, Chad Wolf, acting secretary of the Department of Homeland Security, conducted a citizenship ceremony for five immigrants at the White House, followed by remarks from President Trump, who presided over the ceremony. It was televised nationally as part of the Republican National Convention.
Also on Tuesday, the convention audience heard taped remarks by Secretary of State Mike
Pompeo, who was on an official trip to the Middle East, praising Trump’s “America First” foreign policy.
And while the Hatch Act’s ban on partisan politics does not apply to the president or vice president, they are covered by another provision of the law imposing criminal penalties for ordering or coercing federal employees to engage in political activity.
A law professor said those penalties could apply to Trump’s role in directing White House staff to take part in the naturalization ceremony and another televised event, his pardon of a onetime bank robber who founded a rehabilitation program in prison and who also spoke at the convention. U.S. Marines were present when Trump entered the room for the naturalization ceremony.
Those events “appear to have been conducted for the purpose of the Republican convention ... for the purpose of affecting a national election,” said Kathleen Clark, a professor at Washington University in St. Louis whose specialties include legal ethics.
A future presidential administration might try to examine possible Hatch Act violations at the convention. But not this one.
After the U.S. Office of Special Counsel, an independent agency that investigates violations of the 1939 law, recommended firing White House counselor Kellyanne Conway in June 2019 for disparaging Democratic presidential candidates in dozens of public appearances, Trump replied on Fox News, “It looks to me like they’re trying to take away her right of free speech, and that’s just not fair.”
Conway recently announced her upcoming departure from the administration. When a reporter asked her about her Hatch Act compliance issue last year, she replied, “Blah, blah, blah. If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”
Or, as White House Chief of Staff Mark Meadows told the Politico news agency Wednesday, “Nobody outside of the Beltway really cares” about the Hatch Act.
“The protections we’re supposed to have under the Hatch Act are dead or dormant,” said Jessica Levinson, a Loyola Law School professor in Los Angeles who specializes in election law and governance. “We’re living in a world where a federal law is being blatantly ignored.”
The law, sponsored by Sen. Carl Hatch, DN.M., was a response to disclosures that employees of the U.S. Works Progress Administration were using federal funds to support Democratic candidates in the 1938 congressional elections. Violators of the Hatch Act can be barred from all federal employment, for up to five years in most cases, or permanently in the most serious cases, and fined $1,000. The U.S. Supreme Court upheld the law in 1947, and again in 1973, rejecting arguments that it violated freedom of speech.
“At my first job as a trial attorney at the Department of Justice, on our first day we were told we’d been ‘Hatched,’ what we could and couldn’t do,” said Erwin Chemerinsky, now the law school dean at UC Berkeley. “The law was meant to keep federal employees from being pressured, and to keep the incumbent from taking advantage of the federal workforce for political reasons.”
Once the Office of Special Counsel finds that a civil service employee has engaged in partisan politics, the case is supposed to be heard by the U.S. Merit Systems Protection Board. But the board has lost its members and its authority because Trump has stopped making appointments.
Accusations against Cabinet members and other presidential appointees are sent directly to the president for review. That happened twice under President Barack Obama.
Kathleen Sebelius, the Health and Human Services secretary, was accused in 2012 of violating the Hatch Act by endorsing a political candidate during a speech. Housing and Urban Development Secretary Julian Castro faced similar accusations in 2016 for praising Democratic presidential candidate Hillary Clinton during a television interview. Both said the violations were unintentional, and the Office of Special Counsel did not seek penalties.
In 2017, the office found that Nikki Haley, Trump’s United Nations ambassador, had violated the Hatch Act by retweeting Trump’s endorsement of a congressional candidate. Haley deleted the tweet and faced no penalties. She resigned in 2018 and was not subject to the Hatch Act when she spoke to the convention this week.
But Pompeo was on official business when he traveled to Jerusalem, where he recorded a fourminute speech that was broadcast at the convention. Meadows, the chief of staff, said the Hatch Act did not apply because Pompeo “made it very clear that he was talking in his personal capacity.”
Meadows said he researched the Hatch Act as a North Carolina congressman before his appointment by Trump this year and determined that the administration’s opponents were overstating the scope of the law.
“What it’s really designed to do is to make sure that people like myself and others do not use their political position to try to convince other employees, other federal employees, that they need to vote one way, register one way or campaign another way,” he told Politico.
Chemerinsky, the Berkeley law school dean, disagreed on both counts.
Pompeo, he said, had made it clear that “he was doing this while in Israel on official business.”
More troubling, Chemerinsky said, were the actions of Trump and federal employees he ordered to install the equipment that enabled him to broadcast his convention comments from the White House, the seat of the executive branch.
While President Franklin D. Roosevelt accepted the 1940 Democratic nomination from the White House, “other presidents have not used the White House for blatant political purposes,” Chemerinsky said. “Whatever line there is, Trump has obliterated it.”
Clark, the Washington University law professor, said it was the same line the president is accused of ignoring by steering foreign governments to his Washington, D.C., hotel.
“They are flouting the Hatch Act, the same way President Trump has flouted the more general standard of not using public office for private financial gain,” she said.