The Hatch Act

The national media have recently reported on the violations of the Hatch Act by the Republican National Convention and by President Trump’s Administration itself.  The Hatch Act is a 1939 law that, in essence, prohibits federal executive branch employees¬ (except the president and vice-president from political activity while in their official capacity or (in the cases of certain top government officials) even when they were off-duty.  Government employees aren’t supposed to share their political opinions on the job.  From top Cabinet members on down to your average federal bureaucrat, they are to work for all Americans, not just for those from their party.

Secretary of State Mike Pompeo, however, spoke in a pre-recorded video from Israel to the Republican National Convention on behalf of the Trump election effort.  The official explanation was that Pompeo was speaking as a private citizen, not in his official capacity.  This is hard to sustain, however, since he was listed in the program as the Secretary of State and the video was taped while he was on an official, tax-payer sponsored trip visiting several countries in the mid-East.  Further, under the Hatch Act, diplomats face an added set of restrictions that prohibit them and their families from engaging in any partisan political activity while serving overseas, even in their personal capacities.

Pompeo spoke from the rooftop of a Jerusalem hotel using the overview of the city as backdrop.  Because the President stirred up a political controversy by moving the American embassy to Jerusalem in 2018, Pompeo’s speech could be seen as further blurring the line between his official capacity and his private political role.

It’s not that Pompeo was unclear about the law.  In fact, on Dec 3, 2019, he approved a memo reiterating a

long-standing policy of limiting participation in partisan campaigns by its political appointees in recognition of the need for the U.S. Government to speak with one voice on foreign policy matters. … The combination of Department policy and Hatch Act requirements effectively bars [members of the State Department] from engaging in partisan political activities while on duty, and, in many circumstances, even when [they] are off duty.

The Hatch Act also prohibits political activity within federally owned property.  During the Republican National Convention, however, this section of the law was ignored as Eric Trump, Melania Trump, daughters Ivanka and Tiffany Trump and others spoke from the White House or its grounds.  The President even participated in a taped naturalization ceremony in the White House presided over by Chad Wolf, acting secretary of the Department of Homeland Security, whose participation was also a violation of the law.  The President held a ceremony in the White House pardoning a previously convicted felon.  The President’s acceptance speech was given from the South Lawn of the White House.

While these breaches of the law at the Republican National Convention have been particularly brazen, they are hardly the first times this Administration has done so.  Presidential aide Kellyanne Conway repeatedly violated the Hatch Act in 2018 by disparaging Democratic candidates while in her official capacity as Trump spokesperson.  At that time, the US Office of Special Counsel recommended the President fire Conway for her illegal actions.  When confronted by reporters, Conway responded

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.

When asked, Trump said that the law violated her constitutional right to free speech, ignoring the fact that the Supreme Court has previously upheld its constitutionality in several decisions.  Former administration officials have said the President sometimes jokes with aides that he will pardon them for any Hatch Act violations.  Trump’s Chief of Staff Mark Meadows dismissed concerns about the Hatch Act, saying that “nobody outside of the Beltway really cares” about ethics violations.

While Trump’s contempt for the Act has been noticed in the press, it has hardly become a major scandal.  The press and the public have become so inured to his disdain for the law and the Constitution that it is no longer important news.   

Most of the civil provisions of the Hatch Act are pursued through the Office of Special Counsel (OSC), and punishment for violation is, at the most, firing or suspension.  Given the president’s sensitivity to challenge and his willingness to interfere in the running of supposedly independent arms of the administration, it is perhaps not surprising that the OSC has taken so little notice of the violations.  

What is much less well known is that — while the president and the vice-president are exempt from the civil provisions of the original 1939 law — they are not exempt from its criminal provisions.  In 1993 Congress passed an amendment to the Hatch Act to provide “additional protections against political manipulation of the federal workforce.”  The current law makes it a felony with up to three years in prison for

any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government . . . to engage in . . . any political activity.

White House staff were presumably ordered as part of their employment to set up the White House for the campaign.  At the very least, two Marines, in full dress uniform, involved in the pageantry were commanded to be there.  The Presidents willingness to insert himself into Justice Department decisions, makes it highly unlikely that these crimes will be investigated by the FBI or any other part of the Justice Department.

These days, we easily pass over transgression of civil violations; they are simply too common in this presidency.  But when you’re talking about obvious and deliberate violations of criminal statutes, it should be a big story — especially when Hatch Act violations have been so extensively covered previously in the Ukraine inquiry last year and also in the run-up to the convention.  The GOP not only pressed forward with their violations but pushed the envelope even further with the pardon and naturalization ceremonies … almost daring anyone to do something about it.

This time, let’s not pass so lightly over these transgressions.  The President has made it crystal clear he believes he is above the law.  His many egregious violations of the Hatch Act in the Republican National Convention are a conscious and deliberate challenge to our Constitution.

In the Constitutional Convention of 1879, a number of delegates were concerned with the amount of power they were giving to the president.  Their concern was sidelined by Alexander Hamilton’s argument that impeachment would reign an overzealous president in.  But in the Trump Administration we have seen the constitutional provision for impeachment obviated by a Republican party in thrall to the president.  So there is only one option left: voting the President out of office.

Listening to parts of the Republican National Convention, I was reminded of The Silver Chair, one of the volumes of CS Lewis’s children’s series, The Chronicles of Narnia.  In the story, Eustace, Jill, Prince Rillian and the marsh-wiggle Puddleglum are trapped in the subterranean Underworld of the Green Witch.  The witch has kindled a fire whose magic smoke so muddles the children’s minds that they begin to forget what the real world is like, forgetting, almost, that there is a real world, almost convinced that the sun, too, is just a myth, a story told to children.  It’s only after Puddleglum painfully stamps out the fire with his webbed feet that the smoke’s magic dissipates and the web of lies dissolves.

Between Labor Day and the Nov 3 election, the campaign begins in earnest and the magic smoke will thicken.  We must hang on, remember that there is a sun, and work furiously to stamp the fire out.