Kellyanne Conway Violated the Hatch Act-Has Yet to be Charged

Walter Shaub is a senior director at the Campaign Legal Center. He previously served as director of the Office of Government Ethics.

The special counsel is facing the biggest test of his career. I’m referring not to Robert S.Mueller III but to Henry Kerner of the Office of Special Counsel(OSC), the small agency that investigates Hatch Act violations. That law prohibits executive branch employees from using their government positions to influence elections, which is precisely what presidential counselor Kellyanne Conway did last week. Whether Kerner will enforce the law is another matter.

When Conway appeared on“Fox and Friends” last Monday, it was clear she was doing so in an official capacity: One of the show’s hosts introduced her by her title and she articulated the administration’s views as she stood in front of the White House. In discussing whether the president has enough votes to get a tax bill through the Senate, Conway (without prompting) attacked Doug Jones, the Democratic candidate for Senate in Alabama. “And Doug Jones in Alabama?” she said, “Folks, don’t be fooled. He’ll be a vote against tax cuts. He’s weak on crime, weak on borders. He’s strong on raising your taxes. He’s terrible for property owners.”

Conway’s intent was clear enough already, but she decided to make it clearer. “I’m telling you that we want the votes in the Senate to get this tax bill through,” she admitted. Playing down the sexual misconduct allegations against Jones’s Republican opponent Roy Moore, Conway added, “If the media were really concerned about all these allegations and that was what this was truly about with the Democrats, Al Franken would be on the ash heap of bygone, half-funny comedians.” After a startled “Fox and Friends” host pointed out that even the Republican National Committee had withdrawn support for Moore, Conway doubled down on her advocacy against Jones. “Nobody ever says his name, and they pretend he’s some kind of conservative Democrat, and he’s not,” she said.

Based on this obvious violation of the Hatch Act, the Campaign Legal Center (where I am a senior director) filed a complaint against Conway with the OSC. The White House has offered typical misdirection in response, asserting that Conway was innocently championing the president’s agenda. The question is not whether Conway was championing the agenda of the president — who, it’s worth noting, actively supports Moore — but whether she was advocating against Jones. Only in a world of alternative facts could Conway’s televised words amount to anything other than advocacy against Jones.

In short, the case against Conway is airtight. Or it would be, that is, if President Trump hadn’t appointed Kerner to lead the OSC.

Kerner comes from a conservative group called the Cause of Action Institute. When I served as director of the Office of Government Ethics (OGE), Cause of Action was the only organization that wrote to me in defense of Conwayafter she told Americans to “go buy Ivanka’s stuff.” The group claimed Conway was exempt from OGE’s ethics regulations and that OGE lacked authority to oversee the White House’s ethics program, despite four decades of White House compliance with OGE oversight and an example in OGE’s White House-approved regulations expressly highlighting their applicability to White House staff.