The RNC Was An Avalanche Of Corrupt Hatch Act Violations
The 2020 Republican National Convention (RNC) might as well have been called “What Hatch Act?” With the rallying cry of the Republican political party unabashedly sprawling across the White House South Lawn, you might wonder how it’s legal.
According to experts, it probably isn’t, and it is egregious. Walter Shaub, former Director of the Office of Government Ethics, tweeted:
This abomination may be the most visible misuse of official position for private gain in America’s history. It is an abuse of the power entrusted to this man, the breach of a sacred trust. It is the civic equivalent of a mortal sin—maybe a religious one too. And it is a harbinger pic.twitter.com/UryxiQTyv0
— Walter Shaub (@waltshaub) August 28, 2020
He previously explained the reasons this commandeering of government power is so problematic:
Trump is covered by a criminal section of the Hatch Act that bars him from “command[ing]” any employee “to engage in . . . any political activity, including . . . working . . . on behalf of any candidate.” So Kerner’s letter was simply incorrect.
— Walter Shaub (@waltshaub) August 26, 2020
PBS’ Yamiche Alcindor described the setup:
WH has been transformed into a sort of campaign rally meets Republican National Convention site.
Never before have the lines between the WH & the Trump campaign been more blurred.
Also, I wasn’t COVID tested so not clear that attendees will be. And, there is no mask mandate. pic.twitter.com/lBQUmC9wTS
— Yamiche Alcindor (@Yamiche) August 27, 2020
Later in the evening, with Melania wearing a dress begging for green screen manipulation, they stood on a White House balcony degraded by an actual “Republican National Convention” banner, like they were about to burst into “Don’t Cry for Me Argentina,” or were members of the British royal family stiffly waving to the commoners. While some spoke of the corrosion and erasure of “norms,” Amanda Litman, co-founder of Run For Something cut through the mitigating words:
This isn’t “innovation.” You’ve never seen a convention at the White House before because it’s illegal.
— Amanda Litman (@amandalitman) August 28, 2020
They capped the evening of blatant utilization of public resources for political gain with fireworks at the Washington Monument, another space that belongs to us, the People. The event concluded with a finale excess of which Louis XVI of France himself could only dream as fireworks spelled “Trump” into the People’s sky.
They spelled “Trump 2020” in the sky with fireworks. pic.twitter.com/TjhBxIXnYH
— Kelb Hull (@CalebJHull) August 28, 2020
The Hatch Act prohibits federal employees from engaging in political activity on government time or in federal buildings and also prohibits commands from superiors to engage in political activity. At least, that’s what it’s intended to do, but because its greatest remedy is firing the employee, a decision in the hands, in this case, of the person benefiting from the political activity, (someone had to hang that banner and line up those chairs and set up those fireworks), it’s not being enforced in this Trumpian ethical wasteland.
In 2019, President Donald Trump reportedly told Mick Mulvaney, “I’m in charge of the Hatch Act,” when his former Chief of Staff warned him having the Cabinet at a political rally could prove problematic. While Trump himself is not bound by the civil aspects of the Hatch Act, he is subject to the criminal statute that prohibits him from forcing anyone or preventing anyone from engaging in political activity.
But again we hit a snag, given enforcement of criminal statutes, including this one, is up to the Justice Department. The very same Justice Department headed by Attorney General William Barr.
Congress can investigate, and the House Foreign Affairs Committee’s subpanel on oversight already called for hearings on Tuesday’s speech by Secretary of State Mike Pompeo from Israel while he was there on official business. But once again freedom hits the roadblock named Senator Mitch McConnell (R-KY), because, like all impeachment of government officials, the responsibility of removal lies in the Senate. Actual law enforcement is the sole purview of the Executive Branch, and to say the foxes rule the henhouse is a massive understatement. As it now stands, the foxes rule the entire poultry industry.
Could all of the tasks required to pull off this assault on democracy at the White House have been performed by non-government employees? Perhaps. But engaging in this blatantly political event in a federal space also violates the Act. If they were ordered to be there, that would violate the criminal statute. And it being outdoors makes it no less so. The South Lawn, like the Rose Garden where Melania delivered her dystopian doublespeak address in a grim outfit to match, is federally owned:
Reporters: Do you know what @US_OSC hasn’t done? It hasn’t disclosed a legal analysis underlying its naked claim that the Rose Garden doesn’t meet the definition of “federal room or building” in 5 CFR § 734.101. There’s a reason why—and it’s not just a disinterest in transparency pic.twitter.com/nTu8fuLSBw
— Walter Shaub (@waltshaub) August 27, 2020
As Litman said, we are beyond “norms” or decorum here. Holding the RNC at the White House, like it was a campaign prop, was a declaration that laws no longer apply to Trump, Republicans, or those people who coalesce the sludge that is the flourishing Trump swamp. Dana Perino even said it aloud:
Dana Perino says “it doesn’t matter” that the President is using the trappings of the White House and the powers of his office to campaign because “by the time they have an investigation, this election is going to be over.” pic.twitter.com/VV2zz1zlIn
— nikki mccann ramírez (@NikkiMcR) August 27, 2020
Fox News’ John Roberts gave it a hearty “huzzah” for “both parties.” No doubt that largess would have extended to President Obama had he attempted such a thing:
When I say this could become a model for future incumbents, I’m talking about both parties. You can’t beat the backdrop – and the Washington Monument fireworks blew away any balloon drop I have ever seen. Incumbency is a powerful bully pulpit. The genie is out of the bottle. pic.twitter.com/tCjJico9la
— John Roberts (@johnrobertsFox) August 28, 2020
To highlight how truly off the rails this all is, in 2011, Politico mused at whether President Obama was crossing the line of using the White House to campaign for reelection, without any particular evidence or basis for doing so, aside from asking the question. It even clarified there had been nothing amiss in a tone implying otherwise:
“The addition of senior adviser David Plouffe, Obama’s outwardly unassuming but commanding 2008 campaign manager, to the White House staff last fall sent an unmistakable message that Obama was trying to get control of his organization with 2012 fast approaching. Since the arrival of Plouffe, the White House hasn’t been especially shy about politicking, organizing and fundraising within ethical guidelines, federal law and their own interpretation of political propriety – even though they chafe at the idea that they are the Beltway tail wagging the Midwestern dog.”
2020 Politico offers us its interview with White House Chief of Staff Mark Meadows, a former Hatch Act aficionado under Obama turned slacker under Trump:
“Nobody outside of the Beltway really cares,” Mark Meadows says about the Hatch Act #RNCwithPOLITICO
— POLITICO (@politico) August 26, 2020
Of course, Meadows isn’t the only Trumpian to do an about-face on the Hatch Act. Special Counsel Henry Kerner, head of the office that oversees enforcement of the Act, could hardly contain his spittle over President Obama. More on that below.
So what is the Hatch Act? What is the criminal component? Let’s get down to the nitty-gritty.
What is the Hatch Act and what does it cover?
Passed in 1939, The Hatch Act prevents politicking on the government dime, as well as the abuse of government position for political gain. Aimed at New Deal Democrats, who were misusing WPA (Works Progress Administration) funds, it survived Supreme Court First Amendment scrutiny twice. The Congressional Research Service created a primer on the Hatch Act, and breaks down what it does:
“In its current form, the Act prohibits all covered federal employees from
- “using their ‘official authority or influence for the purpose of interfering with or affecting the result of an election’;
- “generally soliciting, accepting, or receiving political campaign contributions from any person, including hosting fundraisers;
- “running for nomination or as a candidate in a partisan election;
- “soliciting or discouraging participation in political activity of any person who either has an application for any grant, contract, license, or permit before the employing agency, or is the subject of or participant in an audit, investigation, or enforcement action by the employing agency; or
- “engaging in political activity while on duty; on federal property; while wearing a uniform or official insignia; or in a government vehicle. This restriction covers, for example, distributing campaign materials, displaying campaign materials, wearing partisan political buttons, T-shirts, or signs, posting comments to social media sites that advocate for or against partisan political parties, candidates, or groups, or using any email account to distribute content that advocates for or against partisan political parties, candidates, or groups while on duty”.
The president, vice president and their families are generally excepted from the Hatch Act. In this age of unfettered nepotism, Ivanka Trump and her husband Jared Kushner, both alleged federal employees, are bound by it. Ivanka’s whispery RNC speech, no matter how devoid of voice-substance, nonetheless appears to be “engaging in political activity” while “on federal property.”
There is also a criminal provision added in the Hatch Act Reform of 1993, and no person in the government, including Trump, is exempt from it:
“It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government as defined in section 7322(1) of title 5, United States Code, to engage in, or not to engage in, any political activity, including, but not limited to, voting or refusing to vote for any candidate or measure in any election, making or refusing to make any political contribution, or working or refusing to work on behalf of any candidate. Any person who violates this section shall be fined under this title or imprisoned not more than three years, or both.”
While we do not know for a fact at this moment in time that Trump intimidated, threatened, commanded or intimidated anyone into attendance at his reelection event or attempted to do so, given what we know about Trump’s personality and his public actions, it seems likely. The inverse is also true; it seems exceedingly unlikely that any federal employee under Trump could support Joe Biden or decline to attend the RNC because they support Joe Biden and not face some type of retribution.
The criminal statute is intentionally broad:
“Section 610 expressly includes within the broad phrase “any political activity” any conduct that relates to voting, to contributing, or to campaigning. Specifically, Section 610 provides that “any political activity” includes, but is not limited to: (1) voting or not voting for any candidate in any election; (2) making or refusing to make any political contribution; and (3) working or refusing to work on behalf of any candidate. The statute thus encompasses intimidation directed at inducing any form of political action.”
Before Trump: Past enforcement of the Hatch Act, Obama Edition
In 2016, then-conservative organization CoA Institute VP Henry Kerner, now the Special Counsel of the United States Office of Special Counsel, or the one who would be enforcing the Hatch Act against the Trump Administration, railed against what he saw as the Obama Administration’s undermining of the Hatch Act:
“‘The law is clear: public officials paid by taxpayers cannot use their position to engage in political activities. The Obama administration’s unprecedented history of Hatch Act violations threatens to undermine this important protection. Americans have a right to know if Sec. Perez used taxpayer-funded resources to further his own political campaign.”
Contrast that to this expert assessment of Kerner’s approving the use of the White House as stumping grounds:
You know what’s really something? The @US_OSC, the office that‘s supposed to enforce the Hatch Act, issued a combative statement yesterday because, apparently, its Trump-appointed chief not only thinks this is fine, but he thinks it’s outrageous that Americans would be concerned.
— Walter Shaub (@waltshaub) August 28, 2020
Pause for laughs or all-consuming anger, dealer’s choice. The Obama Administration “violations” that “undermined” the Hatch Act numbered exactly two, with a third alleged but never founded. Nonetheless, the Republican-led House launched an investigation into whether the White House Office of Political Strategy and Outreach violated the Act, but the Obama White House was cleared, and the operation declared completely legal. It did not stop former Representative and then-Oversight Committee Chair Darell Issa from suggesting there was more digging to do.
In 2012, Health and Human Services Secretary Kathleen Sebelius violated the Hatch Act when speaking at a Human Rights Campaign event in her official capacity. Sibelius said:
“North Carolina Lt. Gov. Walter Dalton ‘needs to be the next governor of North Carolina.’ She also outlined the Obama administration’s accomplishments so far and said, “One of the imperatives is to make sure that we not only come together here in Charlotte to present the nomination to the president, but we make sure that in November he continues to be president for another four years.”
Looking at the statute above, the violation seems clear and unambiguous, though Sebelius called it “technical.” Republicans called for her firing.
In 2016, then-Housing and Urban Development Secretary Julian Castro was found to have violated the Hatch Act when he, during an interview with Katie Couric, said “let me take off my HUD hat,” and then endorsed Hillary Clinton for president. The OSC found that his words “let me take off my HUD hat,” were not a clear enough indication he was not speaking in his official capacity.
Yes, really, that was the violation. Castro acknowledged it as a mistake.
There were allegations that former Obama Labor Secretary Hilda Solis solicited a campaign donation for President Obama while on the job, but there was no finding of such from the OSC. She had asked someone, after saying it was off the record, to help with a fundraiser. Solis resigned.
These two violations and one allegation are what Kerner–who gave the fundraiser and Trump endorsement called the RNC the White House go-ahead–called “historic violations” of the Hatch Act.Looking to make a difference? Consider signing one of these sponsored petitions:
Trump Administration officials and alleged Hatch Act Violations
If, now educated on the Hatch Act, you think the Trump Administration has racked up fewer violations than it likely deserves, you may be on to something. Even so, prior to the RNC, Trump’s Administration already had 13 citations, nearly seven times that of the Obama Administration. As per ProPublica, at the beginning of August, 12 more investigations were in progress. From Forbes:
“One reason why many ethics violations by Trump administration officials have gone largely unnoticed, let alone unpunished, Sherman asserts, is because the OSC, run by Republican Henry Kerner, doesn’t perform ‘affirmative enforcement,’ instead waiting for complaints by watchdog groups like CREW or government whistleblowers before investigating and making recommendations.”
It’s a sharp contrast from Kerner’s tone on the Obama Administration, to say the least. The possible RNC violations of the act seem endless, if one compares both the civil and criminal aspects of the statute to the events. NPR reports:
“As part of Tuesday night’s prime-time convention programming, Trump granted a presidential pardon from the White House. Secretary of State Mike Pompeo appeared from Jerusalem, where he was on official state business, to make a campaign speech with the Old City as backdrop. First lady Melania Trump delivered a speech from the White House Rose Garden. And acting Homeland Security Secretary Chad Wolf performed a naturalization ceremony on television as Trump looked on.”
Keep in mind, every moment of the RNC was a political endorsement and a solicitation of donations on federal property. Everyone but Trump, Pence and their spouses could be in violation of the Act. From the political nomination theater to other violations, however, the Hatch Act is treated as a Trumpian non-issue. Here’s a quick view of the Act and Trump officials.
In June of 2019, the OSC recommended repeat Hatch Act violator Kellyanne Conway be fired. Consider the extent of her violations, given it’s the same OSC that allowed the White House to be turned into Republican Party headquarters. Conway repeatedly and unrepentantly made political statements while appearing in her official capacity.
The OSC statement::
“Although the President and Vice President are exempt from the Hatch Act, employees of the White House are not. OSC’s letter to the President accompanying the report refers to Ms. Conway as a “repeat offender” and states: ‘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.’”
And indeed they did erode. Conway didn’t care about violations, dismissing them with “blah blah blah:”
KELLYANNE CONWAY on the Hatch Act last month:
“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.” pic.twitter.com/MUmsFQgV3f
— JM Rieger (@RiegerReport) June 13, 2019
Conway was not fired.
Secretary of State Mike Pompeo
While on official business in Israel, Secretary of State Mike Pompeo endorsed Donald Trump for president, breaking with the Diplomatic Corps abstention from political activity. In 2012, then-Secretary of State Hillary Clinton avoided the Democratic National Convention (DNC) entirely, as per the legal guidance for political appointees.
Former Ambassador Linda Thomas-Greenfield, a 35 year veteran of foreign service, said:
“’People are extraordinarily upset about it. This is really a bridge too far. Pompeo is clearly ensuring the State Department is politicized by using his position to carry out what is basically a partisan mission.”
And it seems Past Pompeo doesn’t approve of Present Pompeo’s actions. From the AP:
“Pompeo’s speech shattered that precedent and even went against the guidance he issued to American diplomats last month, advising that federal law prevented them from taking overt sides in the presidential campaign.”
Claire O. Finkelstein and Richard W. Painter, both law professors, filed a Hatch Act complaint against Pompeo, calling his video “an egregious violation of the Hatch Act.”
Kind of Acting Secretary DHS Chad Wolf
Undeterred by a recent Government Accountability Office finding that he is not legitimately holding the position of Acting Secretary of DHS, Seattle invader Chad Wolf held a naturalization ceremony broadcast during the RNC. The recent citizens were not told that this momentous moment would be part of the Republican National Convention, nor that Trump would be there.
Given that naturalization is official government business that was used to garner support for Trump’s campaign, the reaction was swift, and Citizens for Responsibility and Ethics in Washington (CREW) quickly filed a Hatch Act complaint with the OSC. From CREW:
“The Hatch Act isn’t some nebulous, technical code buried deep in some federal manual, it’s the law meant to keep officials from using taxpayer dollars and the authorities of the federal government to keep themselves in power, as totalitarian regimes do.”
After Wolf’s perversion of the naturalization process, a sacred rite among immigrants who make the United States their adopted home, the DHS sent an organization-wide email reminding employees of the Hatch Act. A phrase about horses and barn doors comes to mind.
Lynn Patton, HUD
Former Eric Trump Foundation “president” and Eric Trump wedding planner Lynn Patton is in charge of the New York Region of HUD. As reported by The New York Times, she called a meeting to talk to tenants about housing issues in her official capacity. No tenants were told that they would appear in campaign material for Trump or asked for consent to do so. Said Claudia Perez:
“I am not a Trump supporter. I am not a supporter of his racist policies on immigration. I am a first-generation Honduran. It was my people he was sending back.”
Patton is no stranger to Hatch Act violations;, she is a repeat offender, including keeping a Trump hat in her government office, and lucky number 13 of the Trump Administration to be admonished for disregarding the act.
The Rantt Rundown
Donald Trump foisted the Republican National Convention upon the White House and the People in a callous escalation of his administration’s complete disregard for the Hatch Act. While the statute is intended to prevent the exact kind of corruption and abuse of government power we saw on display during the RNC, the people who profit from violating it also control whether it’s enforced.
It does us no favors, except to quiet pangs of panic, to call the blatant and open violations of law a shattering of “norms” or breaks with “tradition” or breaches of “decorum.” We have slid so far down that slippery slope that we couldn’t identify a mere “norm” now with an illustrated field guide and high-powered binoculars.
We might feel hemmed in by the brazenness of it all, by all the remedies winding right back to the perpetrators. And the truth is that we are.
But we are not powerless. We can refuse to normalize a level of lawlessness that rivals, or perhaps exceeds, any other in American politics. We can relentlessly point to the hypocrisy of Kerner, the person now in charge of the Act, calling Castro’s violation “historic,” while giving the A-OK to hang the RNC’s shingle physically from the White House itself.
And we have the most important remedy of all. We can vote. Voting is our greatest, most effective power. Voting is the only way we will clear this rot out from the root for good.