The Hatch Act prohibits executive branch officials from using their official authority for political purposes, but White House Director of Social Media Dan Scavino Jr. ignored the law in March when he called on President Trump’s followers to defeat Republican Rep. Justin Amash of Michigan, who defied the president on health care legislation, in a primary election.
On March 24, 2017, House Speaker Paul Ryan withdrew the American Health Care Act (“AHCA”), proposed legislation to replace the Affordable Care Act.[i] President Trump used Twitter to rail against the House Freedom Caucus and its members, whose opposition helped sink the bill.[ii] The president tweeted: “The Republican House Freedom Caucus was able to snatch defeat from the jaws of victory. After so many bad years they were ready for a win!” [iii] and further “Democrats are smiling in D.C. that the Freedom Caucus, with the help of Club For Growth and Heritage, have saved Planned Parenthood & Ocare!”[iv]
Mr. Scavino continued the fight a few days later. On March 30, 2017, Rep. Amash, a member of the House Freedom Caucus and a vocal critic of the AHCA,[v] tweeted that “it didn’t take long for the swamp to drain” President Trump.[vi] Mr. Scavino responded with a series of tweets attacking Rep. Amash, first calling Rep. Amash a “Freedom Caucus Troll” and alleging he “[d]idn’t vote for #AHCA b/c he puts politics before MI.”[vii] Mr. Scavino then encouraged Rep. Amash’s ouster through a primary challenge, tweeting on April 1, 2017: “@realDonaldTrump is bringing auto plants & jobs back to Michigan. @justinamash is a big liability.#TrumpTrain, defeat him in primary.”[viii]
Mr. Scavino posted the tweet from his @DanScavino Twitter account.[ix] At the time of the tweet, his profile photograph on the account showed him standing in the Oval Office next to the official presidential flag, and the header photograph showed President Trump giving a speech behind a lectern displaying the official presidential seal.[x] On his account profile, Mr. Scavino described it and himself as “Personal Twitter Handle, 6/20/15-11/2016, Director of #SocialMedia @realDonaldTrump. Official White House Twitter Handle: @Scavino45.”[xi] In response to questions raised about the legality of his tweet, Mr. Scavino removed the photograph showing the official seal and changed the description.[xii]
Under the Hatch Act, executive branch employees are barred from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.”[xiii] This prohibition includes use of an executive branch employee’s “official title while participating in political activity.”[xiv] “Political activity” is defined as “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.”[xv]
Mr. Scavino’s April 1, 2017 tweet clearly constituted political activity under the statute. The purpose of the post was to use Mr. Scavino’s official authority to affect Rep. Amash’s primary election by encouraging supporters of President Trump to defeat Rep. Amash in the Republican primary. That it was sent from Mr. Scavino’s personal Twitter account does not alter this conclusion. Guidance from the Office of Special Counsel, the entity charged with enforcing the Hatch Act, admonishes executive branch employees to “not engage in political activity in an official capacity at any time.”[xvi] The guidance further explains that “the Hatch Act prohibits employees from . . . referring to their official titles or positions while engaged in political activity at any time.”[xvii] The use by Mr. Scavino in his Twitter account of a photograph of himself in the Oval Office alongside the presidential flag, a picture that appears next to each tweet, clearly identified him by his official position, This conclusion is reinforced by the inclusion of a photograph of President Trump speaking in front of the official seal.
The Hatch Act is intended to prevent federal employees from engaging in partisan political activity in their official capacity. The White House staff appears to have run afoul of those prohibitions mere months into President Trump’s tenure.
[i] Robert Pear, Thomas Kaplan, and Maggie Haberman, In Major Defeat For Trump, Push to Repeal Health Law Fails, New York Times, Mar. 24, 2017, available at https://www.nytimes.com/2017/03/24/us/politics/health-care-affordable-care-act.html.
[ii] Lauren Fox, Jeremy Diamond, and Phil Mattingly, Trump Calls Out Freedom Caucus Members in Tweetstorm, CNN, Mar. 31, 2017, available at http://www.cnn.com/2017/03/30/politics/freedom-caucus-trump-tweet/index.html.
[v] Tom LoBianco, House Freedom Caucus Member Justin Amash Break Vote Streak After Blasting Ryan, Health Care Bill, CNN, Mar. 10, 2017, available at http://www.cnn.com/2017/03/10/politics/justin-amash-voting-streak-broken/.
[x] Matea Gold, White House Social Media Director Misused Official Position By Going After GOP Lawmaker, Ethics Experts Say, Washington Post, Apr. 2, 2017, available at https://www.washingtonpost.com/news/post-politics/wp/2017/04/02/white-house-social-media-director-misused-official-position-by-going-after-gop-lawmaker-ethics-experts-say/?utm_term=.4a9d88c2d20f (showing screenshot). See also https://twitter.com/NormEisen/status/848347910425243648.
[xi] Gold, Washington Post, Apr. 2, 2017.
[xiii] 5 U.S.C. § 7323(a)(1).
[xiv] 5 C.F.R. § 734.302(b)(1).
[xv] 5 C.F.R. § 734.101.
[xvi] Office of Special Counsel, The Hatch Act: Frequently Asked Questions on Federal Employees and the Use of Social Media and Email, Dec. 18, 2015, available at https://osc.gov/Pages/The-Hatch-Act-Frequently-Asked-Questions-on-Federal-Employees-and-the-Use-of-Social-Media-and-Email.aspx (emphasis in original).
[xvii] Id. The mere “inclusion of an employee’s official title or position on one’s social media profile, without more, however, is not an improper use of official authority.” Id.