June 25, 2019
Is President Trump trying to hijack the Independence Day celebration on the National Mall by turning it into a taxpayer-funded campaign rally? If he does, the Trump administration will violate federal appropriations law and the Hatch Act. In that case, Trump campaign manager Brad Parscale had better have the campaign’s checkbook handy and be ready to write plenty of zeros.
At a kick-off rally for his re-election campaign last week, Trump sounded a lot like he was laying the groundwork for politicizing America’s birthday party—
This election is not merely a verdict on the amazing progress we’ve made. It’s a verdict on the un-American conduct of those who tried to undermine our great democracy, and undermine you. And by the way, on July 4th, in Washington, D.C., come on down, we’re going have a big day. Bring your flags, bring those flags, bring those American flags, July 4th. We’re going to have hundreds of thousands of people. We’re going to celebrate America. Sounds good, right? July 4th. Celebrate America. This election is a verdict on whether we want to live in a country where the people who lose an election refuse to concede and spend the next two years trying to shred our Constitution and rip your country apart.
The very next day, Trump’s Interior Secretary, David Bernhardt, responded by issuing an announcement confirming that the July 4th event “will feature remarks by President Donald J. Trump.” Trump’s participation in the event will likely command the attention of major television networks and thousands of event goers on the National Mall. It’s the kind of advertising no other presidential candidate could buy, and it appears Trump’s campaign won’t be buying it either. The plan, it seems, is to stick you with the bill.
If Trump is careful and has the self-discipline to talk only about government policies, the event may amount to little more than a garish display of nationalism. Tacky? Probably. Illegal? Probably not.
But when has anyone ever accused Trump of being predictable or sounding like a dry policy wonk? It seems far more likely that he’ll talk about his reelection bid or fling schoolyard nicknames at his political rivals. That sort of bombast would be a whole lot more fun for Trump than having to deliver dull prepared remarks. And, hey, it’s a party after all. Right? The problem – as is so often the case for the Trump administration – is the rule of law.
Federal appropriations law prohibits using the government’s money for purposes Congress has not authorized. Also, section 501 of the Consolidated Appropriations Act of 2018 (and the pending bill for a Consolidated Appropriations Act of 2019) specifically prohibits the use of federal funds for unauthorized “publicity or propaganda.” The Government Accountability Office, which issues guidance on the use of appropriated funds, has said political activity can run afoul of these prohibitions. The Justice Department, too, has held that “If . . . there is no reasonable connection between the expense incurred and the official purposes to be served by an appropriation—as, generally speaking, there would not be when an expense is incurred purely for partisan political purposes—official funds may not be used to pay the expense.”
That’s why, for example, travelers and political organizations have to reimburse the government when the President travels to a campaign rally. If a trip is for a mix of political and governmental activities, they use a formula to calculate how much to repay the government for the costs of the political activities. In addition, campaigns are also covered by Federal Election Commission regulations that similarly prescribe reimbursement of allocated costs for mixed official and political travel.
The Hatch Act also prohibits the use of appropriated funds for political activities, whether travel is involved or not. An exception to the Hatch Act allows top presidential appointees to engage in some political activity, but it expressly bars them from engaging in any political activity that is “paid for by money derived from the Treasury of the United States.” Likewise, regulations implementing the Hatch Act state plainly that costs associated with political activities “may not be paid for by money derived from the Treasury of the United States.”
When the Office of Special Counsel (OSC) found that Health and Human Services Secretary Kathleen Sebelius advocated for President Obama’s reelection at an event while on official travel, the Democratic National Committee reimbursed the government for costs associated with the event. OSC explained: “Secretary Sebelius admitted her error, stating ‘I . . . regret the fact that I clearly made a mistake. I was not intending to use an official capacity to do a political event. I think it veered into political space at an official event and I regret that it occurred.’” Despite her acknowledgment that she made a mistake, OSC decided the reimbursement was warranted and, in fact, “some additional costs” needed to be reimbursed. Secretary Sebelius then ensured that the government was reimbursed for these additional costs.
OSC has also enforced the Hatch Act prohibition on using government funds for political activity when no travel was involved. After some of President Bush’s appointees engaged in political activities on government property in Washington, D.C., OSC determined that “failure to reimburse the U.S. Treasury for the costs associated with that activity violated the Hatch Act.” In addition to appointees directly involved in the political activity, OSC found violations by appointees who had “instrumental roles in coordinating and scheduling” their activities.
The Trump administration will similarly violate the appropriations laws and the Hatch Act if Trump turns the July 4th event into a campaign rally. The Hatch Act doesn’t cover Trump himself, but federal appropriations laws cover him. The Hatch Act and federal appropriations laws cover White House staff, all cabinet officials, and every political or career employee in the Department of Interior, the Department of Homeland Security, the Department of Defense, and other agencies involved in coordinating the July 4th event. Therefore, if Trump gets political during his speech this July 4th, his campaign manager will need to write the government a check.
It will have to be a big check, at that. Trump’s participation in the event will cause the government to incur significant additional costs. To accommodate his “Salute to America” segment, the government likely will have to build a second stage, move the fireworks to a new site closer to the river than originally planned, set up additional media equipment, add more security and crowd control measures, arrange for clean-up of the second venue, arrange for the local travel of Trump and his appointees, reimburse the District of Columbia for its added costs, and make a variety of other costly arrangements. The campaign will need to reimburse the government for its share of these costly arrangements.
A related concern is the troubling link between this event and Trump’s private business interests. Trump will be speaking within walking distance of his hotel on Pennsylvania Avenue. This proximity raises a question of misuse of position by White House staffers involved in coordinating the event for their boss. The government’s ethics regulations provide that employees, including presidential appointees, “shall not use public office for private gain” – in this case, Trump’s private gain.
Profits from the Trump Organization go to Trump himself, and the Trump Organization is working hard to make sure the July 4th festivities are as profitable as possible for Trump. CREW recently revealed that Trump’s “hotel, which almost never sells out, is sold out on the 3rd and 4th of July” and that, on the 5th of July, “the prices are double the average for the cheapest room available in comparable luxury hotels.” The overnight rate on July 5th is also “more than double the average for comparable Fridays at the Trump Hotel.” At a minimum, Trump’s participation in the July 4th celebration creates an appearance that he has used his authority over government personnel, resources, property, land, and funding for his private gain. Though he’s not covered by the misuse regulation himself, his conduct fits the very definition of corruption: “abuse of entrusted power for private gain.”
While the abuse of governmental power to benefit Trump’s business is clear, we’ll have to wait and see if the administration’s plans for the July 4th event violate federal appropriations laws and the Hatch Act. We’ll be watching Trump’s speech for the following indicia that would suggest he has turned the event into a campaign rally:
- Trump uses one of his campaign slogans: “Make America Great Again” or “Keep America Great”;
- Trump mentions the election, his reelection, or a desire to stay in office;
- Trump mentions election polling, his approval rating, or his fundraising efforts;
- Trump mentions a candidate vying for a rival party’s nomination for president;
- Trump mentions his political party or a rival political party;
- Volunteers hand out campaign signs, banners, or flyers;
- Other speakers on the stage mention Trump’s campaign, reelection or a desire for Trump to remain in office;
- Other speakers on the stage mention one of Trump’s political rivals, Trump’s political party, or a rival political party;
- Trump campaign officials are present at the event; or
- Any other indicia of political activity.