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20 November 2019updated 25 Jun 2021 7:38am

Kellyanne Conway’s repeated Hatch Act violations are only the beginning

By Nicky Woolf

The White House is demanding that a government watchdog withdraw a report recommending the dismissal of senior adviser Kellyanne Conway for repeatedly breaking a law preventing federal employees from making political statements.

The Office of Special Counsel (OSC) – unrelated to the Special Counsel investigation headed by Robert Mueller – is an independent government agency which enforces restrictions on the behaviour of federal employees. That includes the Hatch Act, a 1939 statute which prohibits employees of the executive branch (apart from the president and vice-president and a few other exceptions) from taking part in political activity or campaigns in their official capacity as federal staff or while on duty.

In a statement released Thursday, the OSC said Conway should be fired “immediately” for repeatedly violating the Hatch Act “by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media”. Conway had recently given two interviews from the White House lawn where she had attacked Democratic presidential candidate Joe Biden.

This was a big move: the OSC has never recommended anyone be fired before. Of course the Trump White House was never going to follow the recommendation: not only is Conway one of Trump’s closest and most loyal advisors – this wasn’t even her first OSC citation for Hatch Act violations – but, more deeply, for Trump there can be no separation of the job from the politics. The very idea that any of his staff should be non-political is anathema to him. Everything is grist to the mill.

It’s not just the Trump administration: the OSC was also aggressive in enforcing the Hatch Act under Democratic presidents, too. Julian Castro, Obama’s secretary of Housing and Urban Development – who is currently running for the Democratic nomination – got in trouble for speaking in support of Hillary Clinton during an interview in which he was speaking in his official capacity.

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Smartphones and social media have caused some problems for the Hatch Act, partly because it has further blurred the lines between what constitutes “on duty” for a federal employee. “The increased use of mobile communications has expanded the opportunity not only for employees to call or email while in a work environment, but also for use of other applications that may be used to engage in political activity, particularly various outlets of social media,” legislative attorneys Cynthia Brown and Jack Maskell wrote in a 2016 paper for the Congressional Research Service.

The OSC doesn’t have the power to prosecute members of the executive branch – it is “an investigative and recommendatory body,” Richard Briffault, a law professor at Columbia University in New York who specialises in legislation and government ethics, tells me. “They don’t have the power to impose penalties.”

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The fact that the White House didn’t just reject the recommendation, but also demanded that the report be withdrawn, is a sign of just how willing Trump is likely to be to use the presidency as a political weapon as the 2020 election gears up in earnest. Conway is not out of step with the rest of the administration.