By Donald K. Sherman
July 1, 2020

It’s time for Congress to come for Kellyanne Conway. As Election Day inches closer, White House senior staff are flagrantly violating the Hatch Act, a law that prohibits federal employees from using their official authority to impact the outcome of an election. President Trump’s failure to discipline the most egregious offender, Senior Counselor Kellyanne Conway, has allowed her to duck a congressional subpoena, and cleared the way for escalating misconduct in the White House. Congress has routinely done bipartisan oversight of Hatch Act compliance, and today should be no different. It’s time to crack down on a White House run amok—before it’s too late.

In the last six weeks, as polls show the president’s popularity slipping even among his base, several White House officials have committed obvious violations of the Hatch Act in plain sight, making statements in their official capacity aimed at boosting Trump’s electoral chances or attacking his political rival, presumptive Democratic nominee for president Joe Biden.

The Hatch Act may be an area of the law previously overlooked by the public, but is one that protects our democracy by ensuring that government officials do not use the power or resources of their positions to advocate for an electoral outcome. Since 2017, political appointees in the Trump administration have aggressively and egregiously violated the statute. To date, the Office of Special Counsel (OSC), which enforces the Hatch Act, has found that more than a dozen senior Trump administration officials have broken this law. 

Just over one year ago, OSC took “unprecedented” action against Conway, recommending that she be fired for repeated violations that “erode the principal foundation of our democratic system–the rule of law.” After President Trump ignored Special Counsel Henry Kerner’s recommendation to fire Conway, White House staffers appear to have taken their cue and used their government platforms to attack the president’s political rivals. Conway, though, is the only one currently under subpoena to testify before Congress. 

The litany of apparent Hatch Act violations recently committed by senior White House officials includes:

  • On May 20, 2020, Kellyanne Conway participated in an interview on Fox News while in her official capacity and standing on the White House grounds, where she denigrated Biden. She said: “You’ve seen the long short list of Joe Biden’s VP choices — they all happen to be female. He sounds like, you know, a co-ed at the end of a frat party – I need a woman!”
  • On May 26, 2020, Assistant to the President and Director of Trade and Manufacturing Policy Peter Navarro participated in an interview on Fox News while in his official capacity and “from the White House,” where he promoted President Trump’s re-election slogan and made disparaging remarks about Biden. While the interview began with questions related to the administration’s trade policy, the conversation veered to the campaign, and Navarro promoted the Trump re-election slogan “Transition to Greatness” and said regarding comments from the Biden campaign, “To Brother Joe, I guess he forgot the eight years he was toadying up and kowtowing to the Chinese … and of course he is not going to basically hold China accountable for this pandemic.” Navarro added, “Have at it Joe. We’re coming at you on China if you’re going to pull that kind of stuff.”
  • On June 10, 2020, White House Press Secretary Kayleigh McEnany attacked Biden in her official capacity during a White House press briefing. In response to a question related to confederate monuments, McEnany offered unsolicited remarks on Biden, stating, “NBC tells us Joe Biden didn’t just compromise with segregationists; he fought for their causes in schools, experts say. CNN tells us letters from Joe Biden reveal how he sought support of segregationists in the fight against busing. The Washington Post tells us that Biden’s tough talk on 1970s schools’ desegregation plans could get him new scrutiny. And there are several more where that came from. So, I’ll leave you with a question: Should we then rename the Biden Welcome Center?” The transcript can be found on the official website for the White House, which raises additional Hatch Act concerns.
  • On June 17, 2020, Kellyanne Conway once again participated in an interview on Fox News while in her official capacity and standing on the White House grounds, where she made unsolicited statements attacking Biden. In the middle of an interview about administration policy regarding policing and coronavirus response, Conway abruptly turned the conversation to bashing Biden and read alleged quotes from the presumptive Democratic nominee live on air. She said: “I really have to just say something … since you mentioned Chuck Schumer and he politicized this. I’m sorry he’s said Donald Trump has said things for decades. Excuse me, Let me quote Joe Biden. He said the following, ‘I don’t care why someone is a maleactor of society …’ Everybody should go look at Joe Biden in the well of the Senate floor … He has no credibility, and honestly, no honesty on this topic.” 
  • On June 22, 2020, Marc Short, Chief of Staff to Vice President Mike Pence conducted an interview on Fox Business while in his official capacity and standing on the White House grounds, where he made very clear statements directed towards the success of candidate Trump and the failure of candidate Biden. Short said, “Joe Biden was elected to Congress in 1972. 1972, he’s been in Washington, DC. I think the reality is that this president has begun to shake up that establishment order. He’s made changes. … Joe Biden continues to stand for the failed policies of the left.” Although Short offered a disclaimer regarding the Hatch Act before his comments, OSC has previously held that disclaimers regarding the Act do not inoculate an executive branch official from violating the statute when making political statements in their official capacity.
  • On June 25, 2020, White House National Security Advisor Ambassador Robert C. O’Brien conducted an interview with Hugh Hewitt in his official capacity and made statements in support of President Trump’s re-election. He said: “Well look, I expect the President to be reelected and reelected overwhelmingly. I see some of these polls and get a chuckle out of them. … I think the President’s going to come out on top. The American people see the leadership that he’s providing not just with respect to China, they saw him build the greatest economy in the history of the world. We took a very bad hit because of this virus that came from China. But who do you want to turn to, to rebuild the economy – the guy who’s proven he can do it, President Trump, or somebody who’s been in Washington for 40 years?”

At this point, it should come as no surprise that President Trump and his cronies are willing to bend or break the law to support his re-election effort. But what can be done about it? CREW has filed numerous Hatch Act complaints with OSC against administration officials and forwarded these most recent violations to the agency. In eleven of those complaints, OSC found violations, and several are still under review. 

Since 2011, Congress has played an increasingly prominent role in overseeing Hatch Act compliance by political appointees. This need is more critical now than ever. Last year, Kerner testified before the House Oversight Committee regarding his findings related to Conway and enforcement of the Hatch Act in the Trump administration. Following the president’s rejection of Kerner’s recommendation to fire Conway and still mounting violations, Congress should request a briefing from Kerner to understand OSC’s efforts to ensure compliance as we approach Election Day. Congress should also inquire about the status of OSC’s long outstanding investigations into White House staff for arranging official events to help 2018 Republican congressional candidates, as well as possible violations by Ivanka Trump and others. These investigations should be completed and resolved before Election Day.

Congress should demand to hear from Conway and other Hatch Act offenders about their wanton misconduct. Last year, the House Oversight Committee authorized a subpoena by a bipartisan vote for Conway to appear before the committee and answer for her behavior. Conway flouted that subpoena upon direction from the White House, but she remains under subpoena for the duration of the 116th Congress. The Oversight Committee postponed a contempt of Congress vote against Conway last summer, but it could renew calls for a hearing featuring Conway and other senior White House staff who violated the statute, move forward with other tools to enforce its subpoena, or use the postponed contempt vote to demand that the White House make changes to ensure that staff comply with the law. The House is already considering strengthening enforcement of its inherent contempt authority. Conway could be the perfect test case.

It is unclear what steps Congress and OSC will take to address the recent rash of Hatch Act violations by Kellyanne Conway and other senior White House officials. But we can be sure that these abuses will only increase as we get closer to Election Day if the entities with oversight authority sit on their hands. Doing nothing allows the Trump administration to continue to attack our democracy with their lawless behavior. Allowing White House staff to use their official authority to denigrate a presidential candidate erodes the integrity of our electoral process. It must not be allowed to continue as the election nears and the problem becomes more acute.