An 81-year-old government ethics law is back in the headlines again, as the Trump administration is accused of staging official government events for purposes of the Republican National Convention.
White House officials have downplayed concerns about the law, called the Hatch Act, by suggesting that the scrutiny they’re now facing is mere pearl-clutching by an “inside-the-beltway” media.
But ethics experts told TPM that the way that official Executive Branch duties — such as a naturalization ceremony led by acting DHS Secretary Chad Wolf — are being used to boost Trump’s re-election campaign undermines the larger philosophy of the law, which is aimed at leveling the electoral playing field between incumbents and challengers.
And while it appears the White House took clever steps to find workarounds in the technicalities of the law, more broadly, the President has shown indifference — if not hostility — to the separation between public and political activity that the Hatch Act was passed to maintain.
“It’s just another example — of which there are now probably hundreds if not thousands — of, when it comes to any kind of ethical standards and laws, this administration is either, one, ignoring them, or just giving them sort of that passing wink,” said Don Fox, a former top ethics official who served in both Republican and Democratic administrations. “Their whole approach is how can we get around this, not how can we honor both the letter and the spirit of the law.”
The Executive Branch Shouldn’t Use Official Government Acts To Boost Political Campaigns — And Congress Said So In A 1939 Law.
The current criticism the White House is facing stems from the appearance that the administration is using official government acts to benefit Trump’s re-election campaign — something that Congress prohibited in a law passed in 1939 known as the Hatch Act.
The idea underpinning the law is that government officials should not be able to use the powers vested in them by the public to further a private political interest — such as a campaign for office — just like they shouldn’t use those powers to further their private financial interests. The law also places limitations on what kind of political acts can happen on federal property where government employees are otherwise engaged in public duties.
“The point of the Hatch Act is central to the fabric of our democracy: that politicians are not using the government and government resources to keep themselves in power,” said Jordan Libowitz, a spokesman for the watchdog group Citizens for Responsibility and Ethics in Washington (CREW). ”That’s a thing that dictators do. That’s not a thing that happens in a free open democracy.”
If the White House staged events showing Trump exercising the power of the federal government for the purpose of having those acts touted at a nomination convention, it almost certainly contradicts the spirit of the law — even if Trump found loopholes within the letter of the law.
“It may not be a technical, legal violation, but these things look like an abuse of power,” said Nick Schwellenbach, a former communications director at the U.S. Office of Special Counsel, which enforces the Hatch Act.
Several RNC Segments Rang Hatch Act Alarm Bells And Prompt Further Questions.
While this White House has routinely been accused of blurring the lines between official duties and Trump’s political campaign, what was showcased during the RNC’s primetime programming Tuesday night took that envelope-pushing to the next level.
The most controversial segment was one featuring Wolf presiding over a naturalization ceremony at the White House, where he was joined by the President to welcome the new citizens. Another questionable segment featured Trump pardoning an ex-felon who is now a criminal justice reform advocate.
In both cases, an official duty that the President and his officials are supposed to do on behalf of the public were repurposed in a way that propped up the President’s campaign. Wolf’s involvement, as well as the involvement of some Marines, in the naturalization ceremony seems to be the most egregious potential violation, since the President himself does benefit from some exemptions in the law.
The White House Looked To Sidestep Hatch Act Issues While Still Toeing The Lines Of the Law
Even as Trump’s top advisors are mocking the questions being raised about the segments — chief of staff Mark Meadows told Politico Wednesday morning that “Nobody outside of the Beltway really cares” about the law — behind the scenes the White House was spinning the ways that, in its telling, it had steered clear of any Hatch Act violations.
The naturalization ceremony and the pardon ceremony were filmed in advance of the convention on Tuesday, and according to the White House they were official government events. The footage from them was then posted to the White House’s YouTube page on Tuesday afternoon, and then “the campaign decided to use the publically [sic] available content for campaign purposes,” a White House official said.
“There was no violation of law,” the official, who spoke on the condition of anonymity, told TPM in an email.
It is true that conventions, and campaigns more broadly, use publicly available footage from official White House events for their own messaging. But the timing of when these events were staged and broadcast, and how they fit into the campaign themes the RNC was trying to hit, didn’t pass the ethical smell test, according to good governance experts.
“It is conceivable in some world that the White House could repurpose a naturalization ceremony,” said Kathleen Clark, a government ethics professor at Washington University Law. “Frankly — and this is not a legal opinion — it’s gross. Apart from the law, they are exploiting those new citizens for his personal political gain. What a way to be introduced to citizenship.”
Despite the White House’s claim that it had avoided a technical violation, it is still possible that evidence will emerge that unlawful coordination with the RNC happened. Two House Democrats have already asked the OSC to look at the naturalization and the pardon segments, and CREW plans on filing a complaint related to the naturalization segment as well.
Trump’s Willingness To Push The Envelope On The Law Is A Break From Past Administration’s Attempts to Avoid Even the Appearances That They’re In Violation.
The Trump administration is not the first to run into issues with the Hatch Act, and top officials in past administrations have been found to be in violation. What’s new, however, is the pattern of violations from repeat Trump administration offenders, like White House advisor Kellyanne Conway, and the overall sense of impunity that appears to shape Trump’s view of how his official powers can be used to enrich his political fortunes.
He’s even joked about pardoning employees who violate the law, according to the Washington Post.
In previous administrations, people were trying to avoid Hatch Act violations, and it was generally understood that Cabinet officials who violated the law more than once wouldn’t survive, Libowitz said.
Then-Housing and Urban Development Secretary Julian Castro, for example, violated the Hatch Act by praising Hillary Clinton’s presidential candidacy in a 2016 interview where he was discussing HUD policies. He claimed his error was that he misunderstood the Hatch Acts obligations, as he had tried to clarify during the interview that he was speaking in a personal capacity. Some believe the blunder may have taken him out of consideration to be Clinton’s vice presidential candidate.
“Now we have an administration that not only does not believe in punishing for it, it is trying to find ways to message its way around it,” Libowitz said.
Trump’s behavior can be seen within a larger trend of the President seeing the tools of government as things that he can employ for his electoral benefit, according to Clark, who compared the RNC accusations to Trump’s efforts to pressure Ukraine to open an investigation into his political rivals.
“That’s what we saw at impeachment: a president using government power for private political gain,” Clark said.
Enforcing The Law Depends On President’s Respect For Norms.
What the Trump administration’s behavior has suggested to ethics experts is that Congress may need to take another look at strengthening the law, since Trump is comfortable tramping over the guardrails that, in the past, had contained previous administrations.
“The system that exists today, under current law, is a system that really relies on a president that is faithfully executing the law, and is enacting it in good faith and in a high standard of ethics and integrity, who cares about appearances,” Schwellenbach, who is currently an investigator at the Project on Government Oversight, said.
The numerous Hatch Act reprimands that the OSC has brought against Trump’s top advisors have not resulted in the President holding them accountable, even as career rank-and-file servants are continued to be held to the law’s standards.
“People are used to separation and are used to the law working,” Libowitz said. “So, when they see for the first time this convention is blatantly trying to show that the government is backing the president, that makes a lot of people nervous.”