A Trump appointee displayed a “Make America Great Again” hat at her Housing and Urban Development office.
A top official at the Office of Management and Budget used his official Twitter account to promote President Donald Trump’s campaign slogan.
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And White House Counselor Kellyanne Conway delivered a scathing and unprompted attack on Trump’s potential opponent, Joe Biden, during a TV interview.
Those three instances — all in the last few months — are just a few of the growing number of complaints since Trump took office that federal employees are using their platform to campaign for the president or his allies, a violation of the Hatch Act. In Trump’s first year on the job, formal complaints to the government office that oversees compliance with the 80-year-old law jumped nearly 30 percent.
Such sloganeering would once have startled lawmakers and even the public. In an early executive order, Thomas Jefferson admonished government employees for trying to “influence the votes of others,” calling it “inconsistent with the spirit of the Constitution.” Nearly a century and a half later, Congress made it official with the Hatch Act, hoping to quell concerns that the powerful Franklin D. Roosevelt-era Democratic machine was using government workers to sway elections.
But increasingly, the public — and, watchdog groups say, the Trump administration — merely shrugs at such activities, representing another political norm trampled during the president’s tenure. It’s concerning advocates who say the rise in complaints reflects broader ethical lapses in the Trump administration, including staffers spending staggering amounts on travel, promoting the president’s businesses and failing to file legally required financial reports.
“There’s a message from the Trump administration that even if it’s a criminal law maybe they don’t take it seriously,” said Virginia Canter, chief ethics counsel at Citizens for Responsibility and Ethics in Washington, who served in the office that looks into potential Hatch Act violations during the Obama White House. “All they care about is keeping the boss happy.”
The White House declined to comment.
So far, at least 10 Trump senior officials have violated the Hatch Act, according to the Office of Special Counsel, the independent agency that probes possible violations, according to a person at OSC familiar with the Hatch Act. But in most cases, the office decided that the violation was minor enough to only merit a warning letter, not disciplinary action. Only one case has been sent to Trump for action. His predecessors faced similarly small numbers of cases.
Watchdog groups estimate that these official numbers might just be fraction of the total, though, as many cases go unreported. They point to the administration’s willingness to tap political appointees with no government experience and the rise of government social media use as two main factors driving up Hatch Act cases. And the numbers are expected to rise as the 2020 presidential race further dominates the headlines.
In total, the number of official complaints rose from 151 in fiscal year 2014, the first year after Congress significantly narrowed the criteria for violations, to 253 in fiscal year 2017 and 263 the following year. OSC already has received 177 complaints in fiscal year 2019 with more than four months left to go.
Nick Schwellenbach, who used to work at the Office of Special Counsel and now serves as director of investigations at the Project on Government Oversight, said more attention is being paid to the Hatch Act during the Trump administration in part because of the number of cases involving high-level appointees like Conway.
“Those cases made people much more aware of the situation,” he said. “But people have seen those cases … and they don’t see people penalized or disciplined in any way at all.”
The law, enacted in 1939 and named for New Mexico Sen. Carl Hatch, takes aim at behavior that could include tweeting political messages, speaking about candidates, diverting official travel to attend political events and fundraising. At the time, Democrats were facing allegations of deploying Works Progress Administration employees to influence the 1938 elections. The president and vice president are exempt from the law.
Several of Trump’s highest-ranking aides have run afoul of the Hatch Act over the past two years, according to the Office of Special Counsel. In addition to Conway, the office dinged Nikki Haley during her tenure as ambassador to the United Nations for retweeting a tweet by Trump endorsing a South Carolina congressman.
A spate of communications officials dominate the list, all cited for wayward tweets. In the vice president’s office, Mike Pence’s press secretary was cited while First Lady Melania Trump’s communications director Stephanie Grisham was found to have violated the Hatch Act.
Digital strategy chief Dan Scavino, top press aide Jessica Ditto, former media affairs chief Helen Aguirre Ferré, ex-deputy press secretary Raj Shah and Jacob Wood, the No. 2 communications officer at the Office of Management and Budget, also made the list, as did Trump’s executive assistant, Madeleine Westerhout — all for tweets.
The office also concluded that Michael O’Rielly, a Federal Communications Commission commissioner, violated the Hatch Act when he advocated for Trump during a 2018 speech at the Conservative Political Action Conference.
American Oversight, which formed to hold the Trump administration accountable, filed a complaint against former acting Attorney General Matt Whitaker, which the group said received political contributions while a federal employee. OSC opened an investigation but closed it when he left government, according to letters sent to the group.
Separately, POGO filed a complaint in November 2018 against Agriculture Secretary Sonny Perdue for appearing to endorse an incumbent congressman during a speech last year. The group has not been notified of the case’s status.
It’s difficult to compare the number of Trump employees who violate the Hatch Act to those of his predecessors because Congress significantly narrowed the criteria for violations in 2012.
In total, 67 federal employees — both political and career — violated the Hatch Act in fiscal year 2018, according to the Office of Special Counsel, which is not affiliated with special counsel Robert Mueller‘s Russia probe team. That’s up from 51 employees in 2017, but similar to some numbers seen during Barack Obama’s second term. Still, watchdog groups say more higher profile staffers have violated the Hatch Act during the Trump administration.
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, six faced discipline.
Only in rare instances does the president determine if a staffer should be punished, according to the person at OSC familiar with the Hatch Act. Trump has only been asked to determine the punishment for one staffer, Conway, the person said.
Conway violated the Hatch Act during a pair of TV interviews when she talked about why voters should support Republican Roy Moore and oppose Democrat Doug Jones in the Alabama Senate race. The case was referred to Trump for “appropriate disciplinary action,” but it doesn’t appear he took any action. Conway had previously received training from the White House on the law after she caused a bipartisan uproar for promoting the clothing line of Trump’s daughter’s and senior adviser, Ivanka Trump.
Obama, too, was accused of failing to punish the only two employees who were reported to him over Hatch Act violations. In the first instance, then-Housing and Urban Development Secretary Julian Castro praised presidential candidate Hillary Clinton in an interview. In the second, Health and Human Services Secretary Kathleen Sebelius endorsed Obama for re-election during a North Carolina speech. Castro wasn’t punished while the White House said Sebelius had to undergo training and reimburse taxpayers for her trip.
During the George W. Bush administration, General Services Administrator Lurita Alexis Doan was cited for violating the Hatch Act after joining a video conference with political appointees to discuss ways to help Republican candidates. The next year, Bush fired Doan — the sole employee sent directly to him for violating the Hatch Act. It’s unclear whether the incident was a factor, though.
Prior to 2012, Hatch Act violators often faced a severe punishment — dismissal. Now, they face a variety of lesser penalties, including fines, demotions, suspensions or being barred from federal government work for a period of time.
Kathleen Clark, an ethics lawyer who worked for the Senate Judiciary Committee and now teaches at Washington University School of Law, said Congress overhauled the law in 2012 because administrations were reluctant to enforce the Hatch Act, given its harsh punishments.
“Firing is not always appropriate response when someone makes a mistake,” she said. “People won’t want to enforce it if it seems too harsh.”
Canter said she thinks the law now needs to be strengthened to mandate certain penalties. But Clark says Trump — not the law — remains the bigger problem.
“There’s a problem but it’s not with the system, it’s with the head of enforcement,” Clark said. “This president doesn’t take it seriously.”