Jonathan P. Baird

Federal workers, with the exception of the President and the Vice-President, are subject to the Hatch Act, a 1939 law that imposes strict limits on their engagement in political activity while on duty. When working, federal employees cannot send partisan emails, solicit political contributions or use government computers in support of any candidate.

The idea behind the Hatch Act is that federal service should depend on meritorious performance – not political subservience to an administration. Limiting federal employees’ political activity is an effort to guard against partisan favoritism or a spoils system.

This Hatch Act message is drilled into the heads of federal workers and I am not saying this from an abstract understanding. As a federal worker myself, I would say I have received countless messages about the Hatch Act and how to abide by its rules. If there is any question about a political activity, I know to ask our regional attorney to seek guidance.

Outside of work, federal workers can engage in some politics although the rules are very circumscribed. There are less restricted and more restricted employees and for the more restricted, there is a black letter rule against publicly endorsing any candidate. Violation of the Hatch Act can result in discipline which can include termination, suspension and loss of pay.

So it is a shock to see the Trump Administration treat the Hatch Act with utter contempt. Multiple Trump Administration officials have violated the Act with seeming impunity. They have acted like they are above the law.

The Office of Special Counsel, the government watchdog agency designated to oversee enforcement of the Hatch Act, has been a toothless tiger in responding to the violations. Apparently only lower level federal employees must abide by the Act. Trump aides gloat about how their violations have met with no consequences.

Federal workers generally know that if they violate the Hatch Act they are toast and will be punished. Defending a Hatch Act violation with the attorney fees incurred can be financially devastating. The double standard could not be clearer. This is unprecedented because up until this administration both parties recognized and respected the Hatch Act and accepted punishments.

According to Michael Grynbaum and Annie Carni of the New York Times, some of Trump’s aides privately scoff at the Hatch Act and they take pride in violating its regulations. Mark Meadows, the President’s Chief of Staff, has said that he doesn’t think people outside of the Washington DC beltway are worried about the mixing of partisan politics and official federal duties.

So far, fourteen senior Trump political appointees have been cited for Hatch Act violations by the Office of Special Council but Trump is generally dismissive of the Act.

I will cite some of the most egregious Hatch Act violations by Trump Administration officials. The Office of Special Counsel found that Counselor to the President, KellyAnne Conway violated the Hatch Act on numerous occasions by advocating for and against candidates in the 2017 Alabama special election for U.S. Senate. The Office of Special Counsel recommended that Conway be removed from federal service but President Trump ignored that recommendation.

Conway also used her @KellyannePolls Twitter account which she used for both personal and official government business to violate the Hatch Act over 50 times. Conway left her position for reasons totally unrelated to her Hatch Act violations. No discipline was ever enforced against her.

The Republican National Convention featured multiple Hatch Act violations. Secretary of State Mike Pompeo gave a convention speech while serving as chief diplomat in Israel. Senate-confirmed presidential appointees are not supposed to attend political party conventions. Also, Acting Secretary of Homeland Security Chad Wolf presided over an immigration naturalization ceremony doing a pre-taped event that was aired during the convention.

Secretary of Education Betsy DeVos disseminated a clip of her appearance on Fox News through official Department of Education email. The clip criticized Joe Biden. The Office of Special Counsel is investigating DeVos. Housing Secretary Ben Carson wrote an op-ed for the Wall Street Journal critical of Biden housing policy that he distributed to housing department employees via HUD email.

White House Director of Social Media Dan Scavino Jr. violated the Hatch Act by advocating for the defeat of Rep. Justin Amash (R-Mi), a Trump critic. Scavino’s Twitter account showed him standing in the Oval Office next to the official Presidential flag with a header photograph showing Trump giving a speech behind a lectern with the official presidential seal.

At the same time as Trump Administration officials skate through Hatch Act violations, lesser federal workers are penalized. I would cite the case of Gregory Davis, a federal police officer with the Bureau of Engraving and Printing. Davis is a union shop steward.

In August 2019, he sent an email from his work computer on work time to his fellow officers in the police union that listed the platforms of the Democratic presidential candidates. Davis criticized Trump for failing to support federal workers. He was reprimanded. Davis called his case “a one-time event” but he said the scrutiny he received from the Office of Special Council “made me feel like I committed a felony”. Fortunately for Davis, the union is covering his attorney fees. His investigation is ongoing.

A Defense Logistics Agency employee was suspended for 30 days without pay last fall after giving office employees a Power Point that displayed the words “Vote Republican”.

A Food and Drug Administration employee received a 120 day suspension without pay in July after creating a Facebook page with his name and photographs to solicit political donations. He had also co-hosted a fundraiser.

Fairness dictates that the law should be applied consistently regardless of an employee’s rank. The double standard around the Hatch Act is a form of corruption. One standard for the rich and powerful officials connected to the Trump Administration and another standard for everyone else.

The Hatch Act has actually served us well. Removing the barrier between partisan politics and government only promotes the unethical abuse of public service. I have found the partisan use of the White House by the Trump campaign contrary to the spirit of the Hatch Act. The White House, though a temporary home to the President, is the symbol of the government, a federal building that belongs to the people. It should not be reduced to being a prop for any political campaign.