Writers, bloggers, commenters, and pundits nearly exhausted the dictionary in the runup to the president’s July 4th Trumpapalooza™. With his tanks, parades, flyovers, and personal address, Donald Trump’s appropriation of America’s Independence Day rightly earned descriptions ranging from inappropriate, disgusting, and self-serving to grotesque, Orwellian, and masturbatory. But word that the Republican National Committee was distributing special reserved-seat tickets to GOP megadonors and VIPs to a taxpayer-funded event produced a qualitatively different reaction. As conservative columnist and Never-Trumper Jennifer Rubin put it, “This is the mother of all Hatch Act violations.”
Writing in Slate, legal analyst Dahlia Lithwick offered a primer on what types of July Fourth hijinks could indeed constitute violations of the Hatch Act, the 1939 law “that bars virtually all federal employees from engaging in partisan political activities.” But whatever Hatch Act transgressions may have emerged from Donald Trump’s autodeification in D.C. last Thursday, one thing is certain: Trump’s right-wing media enablers and Republican allies on Capitol Hill will defiantly brush them under the rug. As the record-setting Hatch Act lawlessness of Trump counselor Kellyanne Conway shows, today’s Republicans have no problem with politicizing the operations of the federal government and politicizing crime itself.
As University of New Mexico professor Jason Scott Smith explained this week, the good government legislation pursued by Senator Carl Hatch sought to prevent possible partisan political abuses by a Democratic president. While fascist regimes in Mussolini’s Italy and Hitler’s Germany were turning government programs into massive propaganda operations to cement the dictators’ personal power, Hatch wanted to forestall the New Deal’s Works Progress Administration from doing the same in the United States. While congressional investigations in the 1930s found that attempts to coerce WPA workers were rare and ineffective, concerns lingered about the potential for “politics in relief.” Writes Smith, “As a result, section 9(a) of Hatch’s proposed law declared, ‘No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns.’”
Sixty years later, taking “active part in political management or in political campaigns” is precisely what Kellyanne Conway stands accused of doing.
With her endorsement of Alabama GOP Senate candidate Roy Moore and public statements denouncing potential Democratic candidates for president in 2020, Conway has crossed the line repeatedly. Henry Kerner of the Office of Special Counsel told Congress that, before Conway, the OSC had "never issued two reports on the same person" in the 30 years it has been independent. And while the OSC had found two minor violations by different officials during the Obama administration, “The Office of Special Counsel found Conway guilty of 11 Hatch Act violations in its recent report, and two violations in a 2018 report.” It is with good reason that Kerner in his report recommended that Conway be removed from her post.
But for Conway and her Republican defenders, these gross Hatch Act abuses were nothing more than an ill-timed fart. Conway protested that OSC staff “want to chill free speech because they don’t know how to beat him [Trump] at the ballot box.” During a hearing by the House Oversight and Government Reform Committee, Republican Rep. Mark Meadows whined, “We have one standard for Kellyanne Conway and another standard for everyone else.” His colleague Jim Jordan regurgitated the same talking point, proclaiming, “Ms. Conway’s being targeted not just because she’s a conservative, not just because she’s in the Trump administration, but she’s being targeted because she’s good at what she does.” As Smith summed it up:
After the Office of Special Counsel recommended that White House adviser Kellyanne Conway be removed from her position for repeated violations of the Hatch Act, President Trump told the “Fox & Friends” television program, “I’m not going to fire her,” adding, “I think you’re entitled to free speech in this country.”
Conway had already signaled her lack of concern for the Hatch Act, which requires federal employees to refrain from using their public positions to engage in political activity. Responding last month to reporter questions about her track record of ignoring the act, Conway replied: “Blah, blah, blah. … Let me know when the trial starts.”
Conway’s trial hasn’t started yet, but a subpoena has been issued for her to appear before Chairman Elijah Cummings’ Oversight and Government Reform Committee. Meanwhile, right-wing attempts to paint the OSC’s Kerner as someone with a vendetta seem doomed to fail. After all, Kerner was a staffer for the same committee during the chairmanships of Republican hatchet men Jason Chaffetz and Darrell Issa. And, as it turns out, Issa was one of the GOP’s most aggressive defenders of the party’s own Hatch Act transgressors.
As you may recall, the violations of the Hatch Act came fast and furious during the administration of President George W. Bush. In 2011, the Office of Special Counsel released a devastating 118-page report that found that the Bush White House “engaged in widespread violations of a federal law which limits partisan political activity by government employees during the 2006 midterm elections” and concluded that “federal taxpayers footed the bill for improper activities that were intended to advance Republican political candidates.” Among the leading rulebreakers was President Bush's pick to head the General Services Administration. And when Lurita Doan first came under withering bipartisan criticism in early 2007 for using her office to promote Republican congressional candidates and awarding no-bid contracts to her friends, it was Darrell Issa who circled the wagons around her.
As Political Correction documented, time and again Issa came to Doan's defense, even going so far as to list her charitable contributions as proof of her virtue. That was hard to do with a straight face, given Doan's pathetic performance in front of his committee, then headed by Democrat Henry Waxman. As NPR detailed in March 2007:
In her testimony, Doan preferred to emphasize her entrepreneurial efforts. But Democrats were interested in other things: a contract that she tried to award to an old friend; negotiations with Sun Microsystems, in which she became involved; and, more especially, the briefing. In January, Scott Jennings -- the top aide to White House political adviser Karl Rove -- talked to GSA political appointees about the 2006 election results and the Republican goals for 2008.
In one exchange, the lead-off questioner for committee Democrats, Iowa freshman Rep. Bruce Braley, a former trial lawyer, asked Doan, "Would you characterize his presentation as a purely factual presentation about the results of the 2006 election?"
Doan replied, "I'm a little bit embarrassed to admit this, but I can say I honestly don't have a recollection of the presentation at all."
The slides showing the GOP's top 20 target seats for the 2008 election were made public.
Nevertheless, Darrell Issa, the same man who accused Valerie Plame of perjury, attacked the families of murdered Blackwater employees and accused Congressman Joe Sestak of Hatch Act violations, portrayed Doan as a victim during that March 2007 Oversight Committee hearing. NPR reported:
Republicans stuck up for Doan. Darrell Issa of California noted that she has been running GSA for just eight months: "In your eight months, I think you've probably found what I found in my nearly seven years now: That this is a bureaucracy that will resist you at every point, isn't it?"
Doan's reply: "You're absolutely right."
Doan ultimately resigned from the GSA on May 1, 2008, after "the U.S. Office of Special Counsel, a government watchdog agency, conducted its own probe of those claims and concluded that she made the remarks and violated the Hatch Act, which generally prohibits employees of federal agencies from using their positions for political purposes."
For her part, the loyal Bushie Lurita Doan repaid the favor. In October 2008, Doan attacked the man Issa would eventually replace: "Most Americans have grown familiar with your lack of candor, misleading statements, and bitter partisan machinations, and certainly, your report serves as yet another example of the same ol' same ol' from Henry Waxman." And in January 2011, Doan reemerged in the pages of Townhall to praise "Issa's Early Effect":
Congressman Darrell Issa's chairmanship of the House Committee on Oversight and Government Reform has already had an effect on Democrats in the Obama Administration, even before Issa has hosted a congressional oversight hearing. The announcement of the resignation of Josh Sharfstein, the Deputy Commissioner at Food and Drug Administration (FDA), is likely just the first of many such resignations that will occur as Executive agency leaders in the Obama Administration realize that their misguided policies can't stand up to public scrutiny...
Expect an exodus of other political appointees from other federal agencies as soon as public scrutiny reveals more Obama Administration abuses of public trust. Many Democrats have depended on operating in the dark because they know their policies are indefensible. Liberal Dems who know that their policies cannot be defended are going to leave before Issa's hawk's eye turns on their activities.
As it turned out, “Hawkeye” Issa’s most memorable charge against Obama was a bogus one. Obama, Issa baselessly proclaimed in October 2010, “has been one of the most corrupt presidents in modern times.”
Before returning to the man who has doubtless been truly the most corrupt president in modern times, it’s worth looking at another high-profile scandal in which Republicans tried their best to ignore—or excuse—serious Hatch Act violations by their party. The revelations surrounding the Bush administration’s purge of U.S. prosecutors and politically motivated hiring of career civil servants provide a damning case study.
In May 2007, Republican California Congressman Dan Lundgren was only too happy to offer the criminalization-of-politics line in defense of another loyal Bushie, White House liaison Monica Goodling, and her boss, then-Attorney General Alberto Gonzales. Just moments after acknowledging Goodling's admission of violating civil service rules and Hatch Act prohibitions ("she did admit that she made mistakes in that regard"), Lundgren returned to the script, saying, “Let me just say this -- and I think it's an important point -- there is too much of a tendency in this environment to try and criminalize political disputes. That's been the effort here. They have found no basis for criminality, so the suggestion is now a vote of no confidence. Who knows what is next?”
That was a surprising statement for him to make, given that Goodling, during her May 23, 2007 testimony before the House Judiciary Committee, admitted that she had discriminated against job applicants who weren't Republicans or conservative loyalists. Admitting that she illicitly screened out civil service job applicants who happened to be Democrats, Goodling clarified for all why she sought immunity from the committee in the first place: "I do acknowledge that I may have gone too far in asking political questions of applicants for career positions, and I may have taken inappropriate political considerations into account on some occasions, and I regret those mistakes."
But during his questioning, then-Indiana Republican Rep. Mike Pence ignored Goodling's confession to make a different point about the Bush administration's purge of U.S. attorneys then under investigation.
"I'm listening very intently. I'm studying this case, and I want to explore this issue of illegal behavior with you. Because it seems to me, so much of this, and even something of what we've heard today in this otherwise cordial hearing, is about the criminalization of politics. In a very real sense, it seems to be about the attempted criminalization of things that are vital to our constitutional system of government, namely the taking into consideration of politics in the appointment of political officials within the government." [Emphasis mine.]
"I am troubled," Pence concluded, "about the fact that we seem to be moving ever further down the road of the criminalization of politics."
As it turned out, the DOJ's own inspector general later rejected that criminalization-of-politics defense. (As the AP reported in May 2008, "A new Justice Department report concludes that politics illegally influenced the hiring of career prosecutors and immigration judges, and largely lays the blame on top aides to former Attorney General Alberto Gonzales.") Then, on July 28, the DOJ’s Office of Professional Responsibility and Office of the Inspector General jointly issued a report titled An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General. Its conclusion? Monica Goodling, Kyle Sampson, and other Bush Justice Department political appointees had in fact committed crimes under the Hatch Act and other civil service rules.
Which brings us back to Donald Trump and Mike Pence. As The Washington Post reported on November 30, 2018, six White House staffers were issued warnings about their Hatch Act violations:
The White House officials who were reprimanded were principal deputy press secretary Raj Shah; deputy director of communications Jessica Ditto; Madeleine Westerhout, executive assistant to the president; Helen Aguirre Ferré, former director of media affairs; Alyssa Farah, press secretary for Vice President Pence; and Jacob Wood, deputy communications director for the Office of Management and Budget.
As the Post also noted:
The reprimands were the latest cases in which high-profile Trump administration officials have been found in violation of the Hatch Act.
Others sanctioned by the Office of Special Counsel for political messages include White House adviser Kellyanne Conway; Stephanie Grisham, the first lady’s spokeswoman; Dan Scavino, former White House social media director; and Nikki Haley, former U.S. ambassador to the United Nations.
After Donald Trump’s Fourth of July Onanism on the Potomac, the only open question is how many more members of his team will join the list of those who broke the 1939 law also known as an “Act to Prevent Pernicious Political Activities.” As for Kellyanne Conway, Jason Scott Smith warned:
Laws, however, are only empty words if they are not upheld and faithfully executed by politically elected leaders and appointed officials. As Henry Kerner, whom Trump appointed to run the Office of Special Counsel, declared in his report, Conway’s “defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable.” Conway’s actions, he concluded, “erode the principal foundation of our democratic system — the rule of law.” If Trump fails to dismiss Conway, he, too, will have eroded this crucial pillar of our system.
“Yet,” Jennifer Rubin laments, “Republicans defend this ethical cesspool.” And they’ll doubtless continue to do so by decrying “the criminalization of politics,” even as the GOP’s best and brightest politicize crime.
