Office of Special Counsel: Kellyanne Conway Should Be Removed From Federal Service For Hatch Act Violations
[guest post by Dana]
From Politico:
The independent federal agency that oversees compliance with the Hatch Act has recommended that President Donald Trump’s top aide Kellyanne Conway be removed from her job after she repeatedly used her office for political purposes.
The U.S. Office of Special Counsel sent a report to Trump on Thursday that said Conway violated the law numerous times by criticizing Democratic presidential candidates while speaking in her official capacity during television interviews and on social media. It is the first time the office, which is not affiliated with former special counsel Robert Mueller and the Russia investigation, has made such a recommendation for a White House official.
The letter from the OSC described Conway as a “repeat offender,” and cautioned:
“Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system—the rule of law.”
Back in May, when asked about the Hatch Act, Conway told reporters:
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.
President Trump is reportedly supportive of Conway and has no plans to either discipline her or remove her from her position.
In an official response, the White House suggested that the OSC recommendation was politically influenced:
“The Office of Special Counsel’s (OSC) unprecedented actions against Kellyanne Conway are deeply flawed and violate her constitutional rights to free speech and due process. Others, of all political views, have objected to the OSC’s unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees,” deputy press secretary Steven Groves said in a statement Thursday.
“Its decisions seem to be influenced by media pressure and liberal organizations – and perhaps OSC should be mindful of its own mandate to act in a fair, impartial, non-political manner, and not misinterpret or weaponize the Hatch Act.”
Some background on the Hatch Act:
The law, enacted in 1939 and named for New Mexico Sen. Carl Hatch, takes aim at federal employees using their perch to push political candidates. At the time, Democrats were facing allegations of deploying Works Progress Administration employees to influence the 1938 elections. Today, the behavior that could come under scrutiny might include tweeting political messages, speaking about candidates, diverting official travel to attend political events and fundraising. The president and vice president are exempt from the law.
When the government receives a complaint, it investigates and often resolves them with a simple warning letter. In some cases, the oversight office will discipline the employee — perhaps with a fine or suspension — or allow them to fight the case in front of a board. Of the 286 cases closed in fiscal year 2018, 49 employees were issued letters, 10 took some corrective action for their behavior and six faced discipline.
Only in rare instances does the president determine if a staffer should be punished, according to the person at OSC. Trump has only been asked to determine the punishment for one staffer, Conway.
George Conway, a frequent critic of President Trump and husband of Kellyanne Conway, has not made a public comment about the recommendation concerning his wife. The two have not been shy about jousting publicly when the issue concerns this White House and the President. Just two days ago, George Conway wrote an op-ed (with law professor Neal Katyal) in the Washington Post responding to President Trump’s argument that Congress cannot investigate a president except possibly in impeachment proceedings:
It’s a spectacularly anti-constitutional brief, and anyone who harbors such attitudes toward our Constitution’s architecture is not fit for office. Trump’s brief is nothing if not an invitation to commencing impeachment proceedings that, for reasons set out in the Mueller report, should have already commenced.
…
Every principle behind the rule of law requires the commencement of a process now to make this president a former one.
Note: The House Oversight Committee announced that it would hold a hearing with the OSC on June 26 to review the allegations. Conway will be invited to attend.
(Cross-posted at The Jury Talks Back.)
–Dana
Hello.
Dana (779465) — 6/13/2019 @ 1:28 pmThis may become the trigger for Ms. Conway’s departure from the White House, which I’ve long expected. How long before her & George’s joint tell-all book? If they’re looking to maximize its sales, I’d say early summer 2020, certainly before the election. (There will be some really juicy litigation over the NDA(s) she’s doubtless had to sign, so they have to allow time for that.)
Beldar (fa637a) — 6/13/2019 @ 1:43 pmBeer being held
urbanleftbehind (5eecdb) — 6/13/2019 @ 1:47 pmIt’s almost campaign season for Trump. He could just transition her over to the campaign with little to no changes in how she interacts with the press.
Nic (896fdf) — 6/13/2019 @ 1:48 pm….somebody’s been watching season 3 of Designated Survivor.
urbanleftbehind (5eecdb) — 6/13/2019 @ 1:52 pmEh, a 1939 law from when telephone numbers had 2 letters and 4 digits and calling “long distance” was expensive and involved operators. It’s like a law regulating horses on government property now.
Today, assuming she’s using her own phone, she’s not using a mil of government resources. Where she’s standing isn’t really relevant. IF she’s using the White House switchboard, that’s another matter as that uses manpower.
Kevin M (21ca15) — 6/13/2019 @ 2:01 pm@ Nic (#4): Good point.
The Dems will cry Armageddon again — wait, didn’t the world already end because of the reversal of the FCC’s Net Neutrality policy? — but alleged Hatch Act violations usually end up with modest fines. Ms. Conway and her husband certainly know that.
Beldar (fa637a) — 6/13/2019 @ 2:01 pmAccording to Wikipedia, there are several exemptions besides the President and VP. If prohibits campaigning by executive department workers below the decision-making level, and prohibits certain promises (e.g. contracts, jobs, etc) in connection with campaigns from all executive department employees.
Besides the top jobs, exempt from most provisions are:
(i) an employee paid from an appropriation for the Executive Office of the President; or
(ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in the nationwide administration of Federal laws.
The POINT of the law is to prevent campaigns from using legions of federal workers to help get the incumbents re-elected, or in the modern era, Democrats elected. But to say that presidential aides cannot engage in politics is ludicrous.
The act has been weakened over time in Democrat administrations.
Kevin M (21ca15) — 6/13/2019 @ 2:12 pmAny opportunity for Trump to push back against toothless law and the do-nothing bureaucrats who cling to them is a win. ‘Rule of law’ is the punchline of our times.
DCSCA (797bc0) — 6/13/2019 @ 2:13 pmNic (896fdf) — 6/13/2019 @ 1:48 pm
Sounds like a good way to go.
felipe (023cc9) — 6/13/2019 @ 2:13 pmAnd now that Sarah Hucka-bee-goin’, goin’, gone, our Captain wants her to run for governor of Arkansas.
DCSCA (797bc0) — 6/13/2019 @ 2:17 pmPlease beware of misinformation from the tragically ill-informed, folks. The Hatch Act is not an absolute prohibition from presidential staff participation in politics while holding a public office.
The traditional work-around is to get off federal premises and to use no federal facilities (email accounts, phones, meeting rooms) to do that political participation. Ms. Conway is accused, in essence, of failing to observe the normal work-arounds and of being careless in using federal premises and facilities.
Beldar (fa637a) — 6/13/2019 @ 2:24 pmI think the facilities thing is solid, but given cell phones and myriad free communications channels, where you are standing when you use your personal communications device could be challenged as having little rational basis.
Kevin M (21ca15) — 6/13/2019 @ 2:31 pmDcSCA-What did Asa Hutchinson do to earn a primary challenge or is that for ’22?
urbanleftbehind (03583d) — 6/13/2019 @ 2:34 pmcall me when it’s an actual abuse of authority,
https://www.realclearinvestigations.com/articles/2019/06/10/it_started_with_a_lie_bruce_ohrs_linchpin_role_in_russiagate.html
narciso (d1f714) — 6/13/2019 @ 2:49 pmOSC is headed by a liberal Democrat. They can’t justify there interpretation of the Hatch act. They’ve overlooked numerous ethical violations by the Obama WH and have never to my knoweledge called for a WH employee to be fired without getting her response FIRST.
IOW, its just more of the Resistance and legal harassment of anyone who works for Trump. The Establishment is making sure NO ONE ever again want to be POTUS without getting their seal of approval.
rcocean (1a839e) — 6/13/2019 @ 3:02 pmBTW, if you google “White House response” its almost impossible to get the actual response in the first 20-25 items. Google wants you to read some left-wing website/outlet that will PARAPHRASE what the White house response was.
rcocean (1a839e) — 6/13/2019 @ 3:04 pmLaws are for the little people. Especially little brown people.
Dave (1bb933) — 6/13/2019 @ 3:16 pmOh sure, the first successful woman campaign manager of a winning Presidential campaign and the Democrats hound her out of office.
(Kidding, kidding. Well, at least sort of.)
JVW (54fd0b) — 6/13/2019 @ 3:21 pm@ rcocean: According to the cover letter for the OSC report, Ms. Conway publicly and deliberately chose not to respond to two prior letters from the OSC, instead mocking attempts to enforce the Hatch Act by saying on national TV, in her official capacity and from WH grounds (both no-nos):
There is a word for this. It’s called being a “scoff-law.” Her boss, and indeed Bill & Hillary Clinton, are all grand masters at being scoff-laws. Your and other Trump defenders’ whatabouts and deflection is spectacularly unresponsive and unpersuasive.
Beldar (fa637a) — 6/13/2019 @ 3:23 pmthe beatings will continue, until morale improves,
yes Plouffe can go work for the south African affiliate with zte, which has Iranian connections as well,
narciso (d1f714) — 6/13/2019 @ 3:24 pmAnd now that Sarah Hucka-bee-goin’, goin’, gone, our Captain wants her to run for governor of Arkansas.
Nothing says “draining the swamp” quite like having a daughter ascend to her father’s old political seat.
JVW (54fd0b) — 6/13/2019 @ 3:24 pmSarah Huckabee Sanders is like Hillary Clinton without the warmth, charisma and sincerity.
I guess she’ll be right at home in Little Rock.
Dave (1bb933) — 6/13/2019 @ 3:35 pmAnd we got treated to another finger-wagging, ‘outrage’ “Nancy Rant” today as well.
So who is more the ‘criminal’- the fella and his ‘folks’ who keeps ‘pushing the envelope’ – as corporate-authoritarian types tend to do- as long as he/they can get away with something– the ‘catch me if you can’ attitude; or the ol’babe w/t gavel who has been handed a lengthy, documented report full of evidence w/t power to do something about it and in a calculated, self-centered move, decides [so far] not to bother going after him– in hopes the voters will do the ‘hard work’ on their own for her instead in 18 months- and then reap the rewards without risking dirtying her hands.
By Pelosi’s current mindset, there was no point to pursuing articles of impeachment against Nixon in ’74, because– well, why bother, he’d be out of office by ’76 anyway. Which makes her televised rants that ‘nobody is above the law’ and so on so laughable. So who is the bigger ‘betrayer’ of the so-called ‘rule of law’– IMO, it is her; she is worse because with documentation in hand she knows better. The message she is sending to the young and to overseas observers is oaths be damned, ‘yes, you can get away with it.’
Warren has been correct; an impeachment inquiry should be opened on the SOB and the case made to the American people though televised House hearings and if articles pass and a TeeVee Senate trial comes about, let the likes of a Lee, or a Cruz, or a Cornyn or the always entertainingly effervescent Graham stand up and defend him on national television and endure the consequences, for better or worse– if McConnell would let it play out at all.
But that won’t happen. Which is why, along with the continuing strategy to neuter the modern conservative movement, my plan is to vote for Trump again– because he has the balls ‘to get away with it’ and Pelosi didn’t have them to stop him. That, and of course, because he’s such a deliciously better show than ‘Biden Time’ could ever dream to be. A Trump Steak trumps a platter full of 24 weenies any time. 😉
DCSCA (797bc0) — 6/13/2019 @ 3:47 pmrcocean,
I’ve provided a number of substantial links to become more informed about the matter, as well as the video clip of Conway’s mocking response to the press regarding the Hatch Act. Her response to inquiries from the OSC have not reflected a recognition of the seriousness of the violations. We should let her be held responsible for the choices she has made, and continues to make, and not automatically put the blame on the Resistance.
Dana (f29f36) — 6/13/2019 @ 4:39 pmOh. I see a Beldar responded at 20.
Dana (f29f36) — 6/13/2019 @ 4:40 pm#20: As in “why attempt a clear and convincing debunking when trash-talking might work.” Then again, they know their voters.
Kevin M (21ca15) — 6/13/2019 @ 4:46 pmIs the Office of the Special Counsel even Constitutional?
nk (dbc370) — 6/13/2019 @ 4:48 pmDana, it is worse than that. She is likely NOT in violation, at least not in the sense of their charges. There is no prohibition on her being political (she is exempt from that provision), just on her using government resources to do so. But rather than make her case, she trash-talks and flips everyone off. BS when the truth would serve her better.
Kevin M (21ca15) — 6/13/2019 @ 4:49 pmIs the Office of the Special Counsel even Constitutional?
As long as she is paid by the Office of the President, she’s exempt. Domestic officials who are confirmed by the Senate are also exempt (but apparently not ambassadors).
Kevin M (21ca15) — 6/13/2019 @ 4:51 pmWhen you get right down to it, anybody who pays attention to anything Conway says anymore is playing into the Trump game– and they love it. Smart people tuned her out long ago.
DCSCA (797bc0) — 6/13/2019 @ 5:03 pmHey, Kellyanne, what’s your game?
Can anybody play?
You were always something special to me
quite independent, never caring.
You lost your charm as you were aging.
Where is your magic disappearing?
You’re so, so like a Trumpkin to me.
nk (dbc370) — 6/13/2019 @ 5:11 pm(So like a Trumpkin to me.)
So, so like a Trumpkin to me.
(Like a Trumpkin to me.)
On the one hand, we have the Office of Special Counsel’s earlier report, dated March 6, 2018, which includes the following assertions at page 7 regarding the applicability of the Hatch Act to Ms. Conway (boldface & ellipsis by OSC; bracketed portions by Beldar):
The report elsewhere details (pp. 5-6) the elaborate guidance and warnings regarding the Hatch Act that Ms. Conway received, beginning during “senior staff ethics training led by White House Counsel Donald McGahn and Deputy Counsel to the President Stefan Passantino” in January 2017 and thereafter.
And then on the other hand, we also have, here in the comment section at Patterico.com, opinions on a pure question of law — unsupported by any link beyond a frankly mediocre Wikipedia article — by a
well-trained and duly licensed law school graduatenonlawyer who was once a guest at a Holiday Inn Express that she’s exempt, i.e., above the law.Hmm. Decisions, decisions. Whom to believe?
Beldar (fa637a) — 6/13/2019 @ 5:20 pmnk (dbc370) — 6/13/2019 @ 5:11 pm
felipe (023cc9) — 6/13/2019 @ 5:27 pmHeh!
I also don’t think that the Office of the Special Counsel has the authority to tell a President whom of his closest advisers in the Oval Office he should fire. Their opinion is worth no more than Kevin M’s in that respect.
Not to be confused with the Office of Legal Counsel rendering an advisory opinion on the applicability of a federal statute, but that’s a different subject.
nk (dbc370) — 6/13/2019 @ 5:30 pm@ nk (#35): The OSC’s cover letter implicitly acknowledges that she’s not subject to the Merit Systems Protection Board rules that would authorize a forced termination, which is surely why it ends with a “[respectful] request that Ms. Conway be held to the same standards as all other federal employees, and, as such, [that Trump] find removal from federal service to be the appropriate disciplinary action.” She’s covered, in other words, but given that her position is outside MSPB, forced termination isn’t among the remedies available. That does not mean that she’s exempt from the law or above it. But it probably does mean that Trump will again thumb his nose at the Rule of Law (and, yeah, transition her out of the WH and to his campaign organization, unless she quits to write her tell-all book first).
Beldar (fa637a) — 6/13/2019 @ 5:43 pmThank you, Beldar.
nk (dbc370) — 6/13/2019 @ 5:46 pmAnd thank you, nk!
Beldar (fa637a) — 6/13/2019 @ 5:49 pmThe current Special Counsel is a man named Henry Kerner. His Wikipedia biography
Something tells me that he’s not a Democrat, despite Mr Ocean’s assertion that he is.
Kishnevi (c5cd7d) — 6/13/2019 @ 5:52 pmWatching cultists spin sinister anti-Trump conspiracy theories involving career apparatchiks nominated by … Donald Trump … is rather amusing.
Dave (1bb933) — 6/13/2019 @ 6:24 pmBut rather than make her case, she trash-talks and flips everyone off. BS when the truth would serve her better.
You do realize who her boss is, right? Why would we expect her to behave any differently?
JVW (54fd0b) — 6/13/2019 @ 6:32 pm41. Bingo.
The Right is learning.
DCSCA (797bc0) — 6/13/2019 @ 7:10 pm@18. It is a Noo Yawk real estate thing; as Reagan-80’s-era-Trump-crony/competitor/jailbird Leona Helmsley allegedly quipped, ‘Only the little people pay taxes.” 😉
DCSCA (797bc0) — 6/13/2019 @ 7:18 pmBeldar:
I did not see the prior poster. The issue, in my mind, is not whether Conway is subject to the Hatch Act in general (she is), but whether giving an interview on political issues or posting
to Twitter violates the Hatch Act.
The key issue is whether her actions were within her official authority. Specifically, the Hatch Act states, in relevant part, that it is illegal for a covered federal employee to “use his official authority or influence for the purpose of interfering with or affecting the result of an election;” 15 USC 7323(a)(1). That seems to cover someone using their power of office to influence an election.
The Hatch Act also expressly states: “An employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates.” 15 USC 7323(c).
So the key here is to find that Conway used her “official authority or influence” to try to affect an election.
The report charges two things:
First:
Ms. Conway regularly participated in official media interviews in her capacity as a White House spokesperson to answer reporters’ questions about the Administration. Beginning in February 2019, Ms. Conway, during official media appearances, engaged in a pattern of partisan attacks on several Democratic Party candidates shortly after they announced their candidacy for President
Second:
With respect to her Twitter account, OSC concluded that Ms. Conway uses “@KellyannePolls to execute her official duties. OSC also found that Ms. Conway engages in significant political activity on this account.
Frankly, I find it very difficult to say that either involved using Conway’s “official authority or influence” for anything. She is a White House spokesperson, who is expected to give the White House’s view on issues of the day. If she comments (negatively) on Democratic candidates, how is that using her “official authority” to do anything? It isn’t.
Likewise, that she uses her Twitter account as part of her duties does not mean that he political commentary there is using her “official authority or influence.”
The point is, the Hatch Act (or this part of it) is aimed at someone in govt. using their offical power to affect an election. A spokeswoman speaking out is simply not that. Given both the express statement than an employee “retains the right . . . to express his opinion on political subjects and candidates,” not to mention the First Amendment, I find this letter utterly contrived.
Bored Lawyer (423ce8) — 6/13/2019 @ 8:09 pmSorry, it is 5 USC, not 15 USC.
Bored Lawyer (423ce8) — 6/13/2019 @ 8:10 pmBTW, if you read some of the details of the report, in many (not all) cases she was asked in the interview what she or the Administration thought about certain candidates (who has just entered the race). So the Hatch Act requires her to what, clam up on those subjects?
Bored Lawyer (423ce8) — 6/13/2019 @ 8:14 pm@ Bored Lawyer (#46): The Hatch Act — and its interpreting regs and the prior written executive branch guidelines for their enforcement — doesn’t require her to “clam up” when asked political questions, but rather to take active steps to avoid appearing to answer in her official (as opposed to political) capacity. It requires her not to appear to speak in her official capacity as a WH advisor (she didn’t object when introduced in her official capacity), on WH grounds with the WH literally as her backdrop, about campaign matters. It requires that she use a different Twitter account for her public statements in her official capacity and her public statements in furtherance of the Trump campaign. She could avoid all this with a tiny bit of self-discipline, like every other federal employee is supposed to do, consistent with the specific ethics training she received.
Karl Rove understood this. I’m sure she does too. I’m convinced she’s doing this either —
I think it’s (a) and (b) in the short term, and probably (b) in the long term: I think she & George are carefully and successfully positioning themselves to the the 2020s Mary Matalin and James Carville.
Beldar (fa637a) — 6/13/2019 @ 8:48 pm“to the the” –> “to be the”
Beldar (fa637a) — 6/13/2019 @ 8:48 pmOff-topic, but highly entertaining, is the DNC’s list of the 20 candidates who will appear on-stage in the first Democratic presidential primary debate later this month. What a kennel!
Even more entertaining, to me at least, is the discussion of who missed the cut:
I only recognize one of these names, and I think NBC garbled it: Wasn’t his name Seth Bullock, not Steve, and didn’t he leave his job as U.S. Marshal (not governor) for the Montana Territory to become sheriff at Deadwood in the Dakota Territory?
Beldar (fa637a) — 6/13/2019 @ 9:00 pmBeldar, #47. Thank you, this is the first cogent explanation of the fine points of her obligations that I have seen. Most of the stuff on the web today suggests the rules are the same that cover a Ag inspector or postal worker and she is indeed exempt from those.
Even the NY Times report muddles the issues. And, of course these rules are easily met without affecting what you can say and when, if you try and she does not, nor does she care all that much.
Is the Wikipedia article mediocre? It’s what I had and I linked to my source. Feel free to fix it. Anyone can.
Kevin M (21ca15) — 6/13/2019 @ 9:30 pmHowever, your attempts to demean me (#33) for having an opinion, based on the facts at hand, do you no credit.
Kevin M (21ca15) — 6/13/2019 @ 9:34 pm17. rcocean (1a839e) — 6/13/2019 @ 3:04 pm
Google works that way with a lot of things. It refers secondary sources to primary one, because they have a higher PageRank (mainly they have more links, but they also have a reliabiliy score I think)
I alos hae ahard time finding transcripts (it prefers video) and anytimes omehting hits the news, you usually get the most recent thing – to find out what was said before you usually have to use Toods to pick a custom range. And even that will get you recent things, when a sidebar on a opage does not update the date, but is used in search,
Page rank is one of those words that seem to have one etymology but really have another. You’d think it means the weight (rank) given to the page. But it’s named after Larry Page. (one of the two Google founders.)
Similarly, in New York, the furthermost south bridge between Staten Island and New Jersey is called the Outerbridge crossing. It’s not called that because it is the outer bridge, but because of an civil engineer named George Outerbridge.
However, there was no Sam Breakstone.
Sammy Finkelman (1c27d2) — 6/14/2019 @ 8:01 amKevin M (21ca15) — 6/13/2019 @ 9:30 pm
Sammy Finkelman (1c27d2) — 6/14/2019 @ 8:08 amOne can dream of fat-guy-with-skills hubby George Conway doing the same one day:
urbanleftbehind (5eecdb) — 6/14/2019 @ 8:21 amhttp://www.cnn.com/2019/06/13/politics/margaret-hunter-duncan-hunter-california/index.html
It may have been captured by a Wikipedia editor who watches it, and reverts most, if not all, changes. You may have to argue and defend your poaition, with sources other than yourself, and maybe appeal.
And, given that it is now topical, it may have utterly mutated since. However, I have made edits that have survived for years.
Kevin M (21ca15) — 6/14/2019 @ 3:01 pmSorry, I’ve been using Google for 12 years. In the last 4, they’ve changed from giving you a wide range of news sources to forcing you to go to the standard MSM and left-wing sites. Blathering about how “its just based on popularity” is wrong.
rcocean (1a839e) — 6/15/2019 @ 10:30 am