If Donald Trump won’t address the repeated Hatch Act violations of his senior adviser Kellyanne Conway, maybe the courts will do it for him.
Watchdog group Citizens for Responsibility and Ethics just filed a lawsuit seeking to hold Conway accountable for her dozens of violations of the Hatch Act, the federal law prohibiting government employees from campaigning while acting in their official government capacity. The group is asking a federal district court to require the U.S. Office of Special Counsel, an independent federal investigative and prosecutorial agency, to comply with the law and file a complaint.
All of this is necessary because Conway hasn’t just broken the law, she’s absolutely reveled in breaking the law. And why wouldn’t she? After violating the Hatch Act at least 50 times on her Twitter account alone, she suffered no consequences whatsoever. In fact, she was emboldened by the charge that she broke the law, declaring in on Fox News in June that she had “First Amendment rights” to violate the act.
The special counsel’s office is charged with investigating violations of the Hatch Act. Under law, when it finds a violation, it is required to file a complaint with the Merit Systems Protection Board. That’s because, while the office investigates the violations, Merit Systems Protection Board is the agency that can discipline, fine, and fire employees that violate the act.
As CREW points out in its complaint, federal statutes don’t give the special counsel’s office the discretion to decide not to refer a Hatch Act violation to the board. If it finds that a government employee has broken that law, it must present the complaint. There’s a narrow exception for government employees who were confirmed by the Senate. In that case, the office must present the complaint to the president instead.
In the case of Conway, the special counsel’s office has ignored that law. That’s even though, as CREW notes, the office “deemed Conway’s violations so egregious that they warranted the disciplinary action of her removal from federal service.” With that, it was required to forward a complaint because Conway is not an employee who was confirmed by the Senate. She’s just an adviser to Trump.
But instead of sending the complaint, in June 2019, the office punted and sent the matter directly to Trump, telling him she should be removed from her federal job “immediately.”
Unsurprisingly, Trump said he wouldn’t discipline or fire Conway, saying the special counsel’s office was “trying to take away her right of free speech, and that’s just not fair.” For her part, Conway mocked the referral, declaring, “Let me know when the jail sentence starts.”
Of course, Conway does have the right to free speech — just not while on the clock as a federal employee, paid by taxpayer funds. Put another way, Americans aren’t supposed to be paying Conway to campaign for Trump. But that’s exactly what Conway does.
She does media interviews in her official capacity as adviser to the president, and during those interviews made partisan statements about a number of Democrats, including presidential candidates Joe Biden, Bernie Sanders, and Cory Booker. She also uses her Twitter feed to tweet about Trump’s campaign rallies, including using his MAGA slogan, and to attack Democratic presidential candidate Sen. Elizabeth Warren.
All of these things are clearly forbidden under the Hatch Act, and career federal employees have been disciplined for much less flagrant behavior.
CREW isn’t asking the court to take any action against Conway or Trump. Indeed, what they’re asking for is quite modest. They’d like the court to order the Office of Special Counsel to file a complaint with the Merit Systems Protection Board about Conway, as required by law. This doesn’t even mean any discipline would be issued against Conway, as once the complaint is filed, it is up to that agency how they choose to address the matter. CREW is also asking the court to order the special counsel’s office to end its current policy of not filing complaints about any presidential appointee, even if that appointee is not confirmed by the Senate.
The current head of the the special counsel’s office, Henry Kerner, is a lifelong Republican who worked for deceased Sen. John McCain and Reps. Darrell Issa and Jason Chaffetz before being appointed by Trump to lead the office. Under Kerner, the office has been firm in its recommendations against Conway but also clearly wants to leave what happens up to Trump. That’s not the law, and CREW shouldn’t have to sue to get the the special counsel’s office — or Conway — to follow the rules.
Published with permission of The American Independent Foundation.