Does it even matter that the Trump administration brazenly shredded a federal law?
Yes, it does. And here's why.
An extraordinary new report from the Office of Special Counsel (OSC) details how violating a federal law meant to prevent government officials from politicking for political candidates became a way of life for Trump administration officials.
That law, called the Hatch Act, is intended to ensure the fairness of elections by prohibiting federal officials from using their offices to campaign for partisan candidates. That’s obviously a pretty important thing. But because the previous administration made such a mockery of it, by the time Trump left office, mention of the Hatch Act prompted eye rolls.
The new report highlights why the Trump administration’s blatant disregard for the law was and is such a threat to democracy.
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“It is illegal for an employee to support or oppose a candidate for partisan political office while acting in an official capacity,” says the report. “Yet Trump administration officials did precisely that. And while the specific facts of each case are different, they share this fundamental commonality — senior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the re-election of President Trump in violation of the law.”
The report, which focuses on complaints OSC received in response to the 2020 Republican National Convention (RNC) — an event that turned the White House into something akin to a Trump rally — concludes that at least 13 senior administration officials violated the law. But it also acknowledges that they’ll face no consequences for doing so. That’s because enforcement of Hatch Act violations is contingent on the president wanting to enforce it, and Trump didn’t even try to conceal the fact that he held the law in disdain.
“From OSC’s perspective, the administration’s attitude toward Hatch Act compliance was succinctly captured by then-Chief of Staff Mark Meadows, who said during an interview that ‘nobody outside of the Beltway really cares’ about Trump administration officials violating the Hatch Act,” the report says.
But as I documented at Vox and elsewhere, the Trump administration’s flagrant disregard for the Hatch Act went far beyond the 2020 RNC. Perhaps most blatantly, Press Secretary Kayleigh McEnany doubled as a campaign spokesperson during the 2020 election, prompting Fox News to make excuses for her violations of the law when she would appear for interviews. (McEnany now works for Fox News.)
The OSC report provides new details about how then-Secretary of State Mike Pompeo, for instance, changed State Department policy to allow himself to speak at the RNC — then violated the law by engaging in political activity during his speech and talking about the work of the State Department. Another incident involves then-Acting Secretary of Homeland Security Chad Wolf, who the report says violated the Hatch Act “by presiding over a naturalization ceremony that was orchestrated for the purpose of creating content for the convention.”
To get expert perspective on the OSC report, why it matters, and what Congress could do to prevent future abuses of the Hatch Act, I called Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington (CREW), who has commented on and written extensively in recent years about the Trump administration’s Hatch Act violations.
“Together with all that we're learning now about the efforts to overturn the election, it really paints a picture of a president and an administration both unconcerned with the law and willing to use all parts of the government to advance their own power,” Bookbinder told me. “In that sense, it has a much greater significance than people generally in the past have ascribed to the Hatch Act.”
A transcript of my conversation with Bookbinder, lightly edited for length and clarity, follows.
I wrote a lot about the Hatch Act for Vox, but haven’t covered it at all for my newsletter. For people who haven’t been following this stuff close, what is the Hatch Act and why should people care about it?
It’s a law that goes all the way back to the 1930s. It essentially says that, with a couple of exceptions — notably the president and the vice president — federal officials, federal employees, can't use their official position for electoral politics. They can't use their official job to try to get somebody elected.
The idea is both to protect taxpayer resources — to make sure we're not paying taxes for somebody's election campaign — and to create a fairer playing field so that whoever's in power doesn't have an inherent advantage. But it’s also to make sure that you don't have in our democracy the kind of thing that happens in an autocratic system, where the power of the state is used to keep whoever is in charge in power.
It's easy to sort of roll your eyes at the Hatch Act. When we started looking into this stuff, my initial reaction was like, ‘Okay, so somebody said something in an interview or it was a tweet — is it really that big a deal?’ And I think what we saw, particularly in the Trump administration, is that in the aggregate, when you have an administration that is committed to systematically violating this law, it's not just a tweet or a comment.
It really becomes trying to use all the resources and the powers of the government to stay in power. That's a bigger problem and it potentially threatens the democracy.
One thing that really comes through in the OSC report is that enforcement of the Hatch Act hinges on the good faith of the president. And if the president isn't interested in enforcing it, then in many instances there's nothing that can be done in terms of accountability. So what do you think a more effective system would look like for violations of the Hatch Act, and how realistic is it that Congress will act to change the system anytime soon?
There are certain ways in which the Hatch Act can be enforced. And even now for lower level government employees, they're referred over to the Merit Systems Protection Board — which is the disciplinary body for federal employees — and people do get fined or lose their jobs or get stern warnings for Hatch Act violations when they're lower level employees. That sort of compounds the unfairness when you have these cabinet officials and White House officials getting away with it.
There are also criminal provisions in the Hatch Act. People can be prosecuted, but it's very rare and those are much more narrow and don't apply to the kinds of things covered in this report. So you do have a system where, when it comes to high level officials — and in these cases, what appears to be high level officials being authorized to break the law in a systematic way — there's not really anything that you can do about it if you don't have a president and an administration that is committed to following the law and enforcing it.
I think we have seen in other administrations — in the Bush administration and in the Obama administration and so far in the Biden administration — that when people have been called on Hatch Act violations, there have been quick apologies and steps taken to prevent a repeat. We saw in a recent press briefing Press Secretary Jen Psaki saying, "I'm not going to comment on this. I've learned my lesson." [Psaki was accused by CREW of violating the Hatch Act when she made comments endorsing Terry McAuliffe; she responded by acknowledging her error and saying she’d be more careful.]
That's the kind of thing that we didn't see in the Trump administration. There was defiance and no learning of lessons. When you don't have the good faith that we've come to rely on, you need stronger laws. So there does need to be an increased set of enforcement provisions giving more power to the Office of Special Counsel, more power to the Merit Systems Protection Board, more accountability where the president has to at least explain why people aren't being disciplined.
A lot of those kinds of provisions are actually in the Protecting Our Democracy Act, which is legislation that's now in the House and was introduced by Congressman Schiff. It addresses a lot of gaps in the law in checks and balances and executive power and accountability. It has a set of provisions strengthening the Hatch Act. And I think it's incredibly important that you strengthen that law and a whole bunch of other laws that we, in the last number of years, discovered were much weaker and lacked enforcement in ways that we weren't previously aware.
As far as how likely it is, it's a little bit hard to tell. I mean, in this day and age, passing any legislation is difficult, and passing legislation that seems directed in some ways at the abuses under Donald Trump may be tough to get bipartisan support for. On the other hand, we've got a Democratic president now and you could, at least in theory, imagine a scenario where Democrats are alarmed by the kinds of things that happened during the Trump administration and Republicans want to limit the power of the current Democratic administration. Maybe there could be some common ground.
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I also think that on issues related to democracy, there's some talk about maybe doing something about the filibuster. So that's another way that that legislation could pass.
So there are a couple of ways that you actually could get reform. I think it's always a challenge to pass legislation in this day and age, and particularly on something that is potentially politically controversial, but I'm hopeful that we can get there in coming months.
A big part of the OSC report focuses on the 2020 RNC, which we all basically knew at the time was a festival of Hatch Act violations. There was a lot of coverage about how problematic it was to hold it at the White House, and the report gets into a lot of details about the specifics of which officials violated it and how.
But more broadly, what do you think this report adds to our understanding of the Trump administration’s disregard for the law?
First of all, you're right that people who were paying attention to what was going on understood that with the RNC and the events around it, it was an inappropriate and unethical co-opting of the government for Donald Trump's reelection effort. There were always questions about whether the mere fact of having elements of the RNC at the White House was a violation, and this report says that at least as a general matter, it wasn't necessarily. But that doesn’t change the overall impropriety of it and the ways in which it was anti-democratic.
But what this report did do was a couple things. One is that it made clear, and with the authority of the expert office, that this conduct of the Trump administration in the run up to the election was a comprehensive and systematic set of law violations and that it was a conscious and authorized set of law violations. So you had an administration essentially deciding to systematically violate the law to help their reelection. We at CREW have been saying for months that that's what happened, but it's really powerful to have the government body that administers this law come out and say that.
The other thing is that the context is different now than it was in August or September of 2020. We went on to see Donald Trump and those around him try to use the Justice Department to overturn the election and try to use other government powers to stay in power even after he had lost the election. So with that perspective, I think these sorts of systematic Hatch Act violations become part of a larger picture of a president and an administration using every bit of government power to try to stay in control of the government. That's something that was and is really dangerous for democracy. And I think when you see that in this context, the Hatch Act becomes a lot more important than people often give it credit for.
My reading of the OSC report is that while it makes clear that Trump created a culture where these repeated violations of the Hatch Act were accepted, and it does detail how Pompeo changed State Department policy to allow himself to speak at the RNC, these abuses of federal law flowed from an unwritten rule — in other words, it wasn’t like there was an administration policy making Hatch Act violations okay. So what Trump really did is foster a lawless culture. Is that your reading of it too?
I think that's right. The Office of Special Counsel comes out and says that their reading of all of the evidence is that these violations were approved and authorized. I think it is kind of an implicit authorization. Again and again, they found the violations, they sent notice of the violations to Donald Trump. He not only didn't do anything about it, but he publicly expressed support for the people who had violated the Hatch Act and a sort of disdain for the findings of this office. And that happening again and again sent the message to those in the White House and to cabinet secretaries that this was okay and in fact encouraged.
It's certainly possible that there also were explicit statements approving or encouraging violations, but we don't know that. But what we do know is that there was this pattern of not taking any action when people were found to have violated [the Hatch Act] and in fact, expressing support for them despite those findings.
The report focuses a lot on stuff that happened during the 2020 campaign, but I’m wondering what you think it says about the deeper rot of the Trump administration. What do you think it adds to the Trump administration’s legacy on government ethics, or lack thereof?
It absolutely does encapsulate a larger picture of abuses of power and disregard for ethics. We already knew that there were a lot of Hatch Act violations. There had already been, I think, 15 findings of violations by the Office of Special Counsel. In some cases, some of those 15 encompass many, many more. With Kellyanne Conway, they found more than 50 violations in their report on her.
So we already knew there was a lot, but what this shows is that it was spiraling and becoming very much pervasive throughout the higher levels of the administration. And also, it was concentrated in the run up to the election where these were not random comments. These were repeated instances of senior officials in the days and weeks and months leading up to the election using their power to try to ensure their boss's reelection. So it shows the extent to which that problem that we already knew about became larger and more sinister.
Together with all that we're learning now about the efforts to overturn the election, it really paints a picture of a president and an administration both unconcerned with the law and willing to use all parts of the government to advance their own power. In that sense, it has a much greater significance than people generally in the past have ascribed to the Hatch Act.
And the other thing that you get from this is that relying on goodwill is not good enough, that you need stronger laws. We are now seeing an administration that seems to have goodwill, and still makes some mistakes, but then appears to take steps to fix them. But we now know that it's possible to have an administration which doesn't have that kind of approach and which is then free to do whatever it wants. So that really does go to the urgency of reforms and of strengthening the law.
Not at all the point, but Noah has one of the best last names in the history of last names.
It wasn’t just the Trump administration who allowed violations of the Hatch Act. The FBI agents in the NY field office deliberately leaked damaging information about investigations into Hillary Clinton and the Clinton Foundation to damage her campaign and help get Trump elected. Both Comey and McCabe caved to the pressure from those leaks.The DOJ’s Inspector General’s report about the FBI investigation of Hillary’s emails made it clear that top DOJ and FBI officials were well aware of that pressure but did nothing to stop what was going one. That was Obama’s DOJ, not Trump’s.
Both Comey and McCabe allowed themselves to be pressured by those leakers into making damaging information about investigations of Clinton public while keeping information about investigations of Trump’s campaign secret.
The IG opened an investigation of those leaks, an investigation the media has chosen to ignore. I have no idea if it has ever concluded.