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The Looming Threat of a Government Shutdown May Be Overblown

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Photograph of President Trump during the State of the Union Address/Office of the House Speaker

WASHINGTON, December 17, 2018 — The uncertainty of looming government shutdown on December 21 will be on full display on Wednesday morning when Congress reconvenes for a last-ditch attempt to tackle the seven remaining must-pass appropriations bills to fund the government for fiscal year 2019.

At the White House, where President Trump said last week that he’d be “proud” to shut down the government should the House and Senate decline to fund his proposed wall along the order with Mexico, administration officials appeared slightly less excited about the prospect of putting roughly 800,000 federal employees out of work days before Christmas.

“We don’t want to shut down the government,” said White House Director of Strategic Communications Mercedes Schlapp. “But we’ve got to find increased spending for border security.”

The president, Schlapp said, is “very focused” on obtaining the $5 billion he says is necessary in order to follow through on building a border wall that he promised, during the presidential campaign, would be paid for by the government of Mexico.

Although the administration may be striking a more optimistic and conciliatory tone leading into Wednesday’s negotiations, one former administration official who is close to Trump told BeltwayBreakfast that the president is not bluffing and remains fully prepared to embrace a shutdown if he does not get what he believes is necessary to secure the southern border.

“He has no problem taking responsibility for a government shutdown if he can’t negotiate with these guys,” said the former official. “They’ll ride it out for as long as it takes.”

Former Trump official says that a shutdown is not likely

Responding to Senate Minority Leader Chuck Schumer, D-N.Y., who on Sunday accused Trump of blocking a bipartisan deal with a “temper tantrum,” the former official was confident in the president’s ability to bend Democrats to his will.

“He can hit the target and he doesn’t blink,” he said. “He’s going to get the other guy to blink.”

Marc Short, who handled the administration’s relations with Capitol Hill until this past summer, acknowledged that the administration has “a lot to figure out” in the coming days. But he discounted the predictions of doom, gloom, and furloughs.

“I’m not convinced we’ll end up there,” he said, referring to the possibility of a shutdown.

Short pointed out that even if negotiations fail and funding lapses, the parts of the government that have been fully funded through the end of fiscal year 2019 are those that normally cause the most headaches. Those include the Department of Defense, and the Department of Health and Human Services that manages Medicare and Social Security.

Short also noted that the partial nature of any potential shutdown could allow for an extended stalemate, in which affected agencies remain closed without much disruption to the general public.

“The average person, I think, will not be impacted,” he said.

One member of Congress doesn’t think a shutdown will be catastrophic

One member of Congress who concurs with Short’s assessment is Rep. Mark Sanford, R-S.C, who noted that the portion of the government that would cease operations in the event of a funding lapse is relatively small in the grand scheme of things.

“You take out interest, you take out entitlement spending, you take out the large [appropriations] bills that have already gone through, we’re talking about only 8 percent of federal spending.”

A shutdown would mean Sanford, who is departing Capitol Hill for the second time after losing his seat to a primary challenger, is leaving the House in a similar condition to how he found it when he arrived in 1995 — in the throes of a shutdown crisis prompted by clashes between then-House Speaker Newt Gingrich, R-Georgia, and President Bill Clinton.

Sanford said the root causes of the 1995 funding lapse and the shorter ones seen under President Trump are the same.

“Strongly held opinion and disagreement leads to an impasse and a shutdown,” he said.

He acknowledged a major difference between the past and present situations, noting that in 1995, Republicans had a Democratic president to content with, whereas now they control both the executive and legislative branches.

“Typically you don’t see shutdowns on the same team, it’s usually Republicans versus Democrats that leads to a shutdown,” Sanford said.

“It’s certainly curious, odd, and different that it comes this way, but we are where we are.”

 

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Andrew Feinberg covers the White House, Capitol Hill, and anything else you can think of for BeltwayBreakfast.com and BroadbandBreakfast.com. Andrew has reported on policy and politics in the nation's capital since 2007, and his writing has appeared in publications like The Hill, Politico, Communications Daily, Silicon Angle, and Washington Business Journal. He has also appeared on both daytime and prime radio and television news programs on NPR, Sirius-XM, CNN, MSNBC, ABC (Australia), Al Jazeera, NBC Digital, Voice of America, TV Rain (Russia) and CBS News. Andrew wishes he could say he lives in Washington, DC with his dog, but unfortunately, he lives in a no-dogs building in suburban Maryland.

Ethics Are For Little People

Kellyanne Conway’s Hatch Act Defense Doesn’t Hold Water, Experts Say

As the House prepares for a hearing on her and other Trump administration officials’ Hatch Act violations, ethics experts say Conway’s defense is without merit.

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Kellyanne Conway addresses reporters outside the West Wing on June 24, 2019 (Andrew Feinberg / Breakfast Media)

WASHINGTON, June 24, 2019 — Counselor to the President Kellyanne Conway says a federal ethics law prohibiting government employees from using their position for partisan activities doesn’t apply to her. Ethics experts say she’s wrong.

The President’s close adviser and former campaign manager found herself in hot water early this month after the Office of Special Counsel -recommended she be fired for violating the 80-year-old ethics law multiple times. The office is an independent agency responsible for enforcing the Hatch Act’s prohibitions against partisan activity by federal workers.

The OSC is not a part of the Justice Department, and its activities are unrelated to the high-profile probe conducted by the Special Counsel’s Office that had been led by Robert Mueller.

While the White House has taken no action against her, the OSC’s report has attracted the attention of the House Committee on Oversight and Reform and its chairman, Rep. Elijah Cummings, D-Md. On Friday, Cummings’ office requested Conway’s presence at a Thursday hearing on Hatch Act compliance under the Trump administration.

If Conway follows the usual Trump administration practice of ignoring requests for administration officials to testify before Democratic-led House committees, Cummings plans to have committee members vote to authorize a subpoena for her testimony.

One person who will be testifying, however, is Special Counsel Henry Kerner, a Trump appointee who, according to prepared testimony released by the House Oversight Committee, plans to harshly criticize Conway’s conduct.

“As stated in OSC’s 2019 report to the President, Ms. Conway’s egregious and repeated Hatch Act violations, combined with her unrepentant attitude, are unacceptable from any federal employee, let alone one in such a prominent position,” Kerner is expected to say Wednesday. “Her conduct hurts both federal employees, who may believe that senior officials can act with complete disregard for the Hatch Act, and the American people, who may question the nonpartisan operation of their government.”

According to the OSC’s report, Conway “violated the Hatch Act during media appearances” by making derogatory statements about Democratic presidential candidates while she was speaking in her official capacity as Counselor to the President, and by retweeting Trump campaign messages on the same Twitter account she uses for official business.

The OSC report also noted that Conway had previously been found to have violated the law when she endorsed Alabama Senate candidate Roy Moore during a 2018 special election, and that she “scoffed at her responsibilities under the Hatch Act and ridiculed its enforcement” during a May 29 media availability, when she responded to questions about her past Hatch Act violations by asserting, “Let me know when the jail sentence starts.'”

“Her defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable,” the report said.

Conway is defiant in a Fox News appearance

During a Monday appearance on Fox News, a defiant Conway hit back against the OSC’s findings by claiming that it isn’t clear that the law applies to her and other senior White House aides. She also accused the Office of Special Counsel of doing the bidding of “left-wing” groups who “want to put a big roll of masking tape over [her] mouth” and restrict her First Amendment rights.

Conway later took to Twitter to promote a memorandum by the White House Counsel’s office, which accused OSC of using an “overbroad and unsupported interpretation of the Hatch Act” that “risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees.”

But ethics law experts say the arguments put forth by Conway and the White House Counsel don’t hold water.

According to Campaign Legal Center Ethics Counsel Delaney Marsco, Conway’s defense fails when it comes to both the facts and the law.

“The Hatch Act specifically says that any individual other than the president or vice president employed or holding office in an executive agency other than the Government Accountability Office is covered by the Hatch Act,” Marsco said in an interview with Breakfast Media. She added that the Office of Special Counsel has repeatedly said so “multiple times.”

Additionally, Marsco noted that the Supreme Court had two chances to say that the Hatch Act’s restrictions violate government workers’ First Amendment rights, and has declined to do so both times — first in 1947, and again in 1973.

Marsco said the argument Conway and the White House Counsel are putting forth by suggesting that her right to free speech is being violated shows “a fundamental misunderstanding of the law and the power that comes with being a federal employee.”

“The Hatch Act contemplates that being a member of the federal government gives you power, and you should not be able to use the power and influence you have as a federal government employee to influence the results of an election,” she said, adding that Conway’s conduct “undermines the faith the public has in the federal government.”

Conway would have an easy fix to avoid violating the Hatch Act on Twitter

She added that Conway could have avoided violating the Hatch Act on Twitter if she’d used a separate Twitter account in her official capacity as Counselor to the President. Her failure to do so, Marsco said, “blurs the lines” between what Conway might say on her own time and what she says in her role as a spokesperson for President Trump.

Nick Schwellenbach, a former Office of Special Counsel staffer and the current director of investigations at the Project on Government Oversight, said Conway’s claim that her criticism of candidates’ policy preferences doesn’t violate the law “mischaracterizes the full scope of what the Hatch Act prohibits.”

“[Conway] said [the Hatch Act] only prohibits talking about individual candidates, and that’s just not true,” Schwellenbach said in a phone interview with Breakfast Media.

“Political activity is not just saying, ‘hey, vote for this candidate, vote against this candidate, or vote against that one.’ It can be ‘vote for this party or support Republicans or support Democrats because of their policies,'” he said.

“You can do that on your free time as an individual, but if you’re the spokesperson for the White House, you can’t do that.”

Schwellenbach said the provision of the Hatch Act cited by Conway and the White House Counsel to support their argument that the law doesn’t apply to high-ranking White House officials doesn’t exonerate her, either.

That provision, Schwellenbach said, is limited in scope and meant to cover a limited set of activities, such as fundraising phone calls by a White House official who also holds positions within an incumbent president’s campaign.

“It’s about reimbursement,” he said. “Not going on TV.”

A third Hatch Act expert, Washington attorney Bradley Moss, said Conway’s claim that she is not covered by the Hatch Act is entirely without merit, and shows how uninterested the Trump administration is in complying with any of the ethical or legal obligations adhered to by both Republican and Democratic administrations.

“For generations, senior White House advisors have managed to find a way to comply with the requirements of the Hatch Act, or made adjustments to their practices if isolated violations were identified,” said Moss, a partner with the law firm of Mark S. Zaid, P.C. whose practice encompasses federal employment law matters.

“Kellyanne Conway’s outright disregard for the Hatch Act is consistent with this Administration’s general disinterest in complying with a range of ethical restrictions regarding which we have been accustomed to public officials treating with respect.”

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Ethics Are For Little People

White House Adviser Kellyanne Conway Should Be Fired For Repeated Ethics Violations, Watchdog Agency Says

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WASHINGTON, June 13, 2019 — The independent agency responsible for ensuring compliance with the Hatch Act has recommended that Counselor to the President Kellyanne Conway be fired for repeated violations of that law.

The Hatch Act prohibits federal employees from engaging in partisan political activity while in federal employment.

Conway, the agency said, “violated the Hatch Act on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”

“Given that Ms. Conway is a repeat offender and has shown disregard for the law, OSC recommends that she be removed from federal service.”

As Conway’s supervisor, President Donald Trump is ultimately responsible for deciding whether she will be disciplined for violating a well-known law that has been on the books since 1939. But he did not take any action when she was found to have previously violated the same law.

In a statement, White House Deputy Press Secretary Steven Groves hit back at the agency’s “unprecedented actions” against Conway, calling them “deeply flawed” and a [violation of] her constitutional rights to free speech and due process.”

Groves added that OSC’s decision appeared to be influenced by “media pressure and liberal organizations.”

“Perhaps OSC should be mindful of its own mandate to act in a fair, impartial, non-political manner, and not misinterpret or weaponize the Hatch Act.”

This is a developing story, check back for details.

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Check Your Privilege

As Dems Probe Whether Census Is Being Rigged Against Minorities, Trump Claims Executive Privilege Over Commerce Department Docs

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House Oversight Committee Chairman Elijah Cummings, D-Md., wields the gavel during a 2019 hearing

WASHINGTON, June 12, 2019 — President Trump will invoke executive privilege to keep the House Oversight Committee from viewing documents that could shed light on whether Commerce Secretary Wilbur Ross’ decision to include a citizenship question in the 2020 census was motivated by racial or political animus, a Commerce Department official said Wednesday.

In a letter to House Oversight Chairman Elijah Cummings, Commerce Department Legislative Affairs Director Charles Kolo Rathburn said Cummings’ decision to go ahead with a vote to hold Ross in contempt forced Trump’s hand.

“It is disappointing that you have rejected the Department of Commerce’s request to delay the vote of the Committee on Oversight and Reform on a contempt finding against the Secretary this morning. By doing so, you have abandoned the accommodation process with respect to the Committee’s January 8, 2019 request for documents and information and April 2, 2019 subpoena for documents concerning the Secretary’s decision to reinstate a citizenship question on the 2020 Census,” said Rathburn, a political appointee who is performing the duties of the Assistant Secretary [of Commerce] for Legislative Affairs because President Trump has not nominated anyone to fill the Senate-confirmed position.”

“Accordingly, I hereby advise you that the President has asserted executive privilege over the specific subset of the documents identified by the Committee in its June 3, 2019 letter — documents that are clearly protected from disclosure by the deliberative process, attorney-client communications, or attorney work product components of executive privilege.”

Additionally, Rathburn said Trump will use the privilege to withhold all documents the committee had subpoenaed on April 2 as part of its investigation into whether the his administration’s plan to add a citizenship question to the 2020 census was an attempt to reduce the counted population of Democratic-leaning minority groups.

The decennial census, a requirement laid out in Article I, Section II of the Constitution, is required in order to determine how many seats in the House of Representatives — and electoral votes — will be allocated to each state.

Because the Constitution requires the census to count “the whole number of persons in each state,” most experts say a question on citizenship — a subject which the census has not asked about in more than half a century — is unnecessary.

While the Commerce Department says adding the question is necessary — even without performing the statistical testing required by law — to better enforce the Voting Rights Act, experts also say adding such a question would result in fewer responses from Latino households in which some members are undocumented.

After a number of states sued the Trump administration in hopes of blocking Ross from adding a question that could potentially cause them to lose representation in Congress, a district court judge found the Commerce Department to have violated the Administrative Procedure Act by acting in an “arbitrary and capricious” manner when deciding whether to add the question.

The judge’s detailed finding of fact did not address whether the Trump administration’s decision to add the question was motivated by a desire to hurt Democrats or dilute minority representation, and the administration’s appeal is currently before the Supreme Court.

But the case was upended last month after the progressive advocacy group Common Cause obtained a cache of documents from the daughter of a deceased GOP redistricting expert.

Those documents reveal that the expert, Thomas Hofeller, had corresponded with Commerce Department officials and other top Republicans about how the GOP could gain an advantage from the addition of a citizenship question to the census.

As a result, members of Cummings’ committee are hoping to look into whether Ross or other administration officials committed perjury when testifying before Congress or as part of the lawsuit over the citizenship question.

While the President customarily has broad latitude when claiming executive privilege — meant to protect presidential communications so as to give the chief executive the benefit of candid advice — courts have placed some restrictions on its uses.

In 1974, a unanimous Supreme Court held in United States v. Nixon that a president could not use a claim of executive privilege to defy a judicial subpoena.

But one executive privilege expert — University of Virginia law professor Saikrishna Prakash — cautioned that the Nixon ruling does not apply to a Congressional subpoena.

“[The] Nixon [case]…was…an actual prosecution as opposed to Congress being involved, and the court…set aside the question of whether [executive] privilege ought to apply or how it would apply to Congress,” said Prakash, a Senior Fellow at UVA’s Miller Center.

“The [Supreme] Court has never said how the executive privilege applies to Congress if it does apply to Congress, but the lower courts seem to think that it does.”

Prakash predicted that the Trump administration’s invocation of executive privilege will be “the first step in a complicated dance” which will most likely end with some sort of negotiated settlement between the administration and Congress.

But if the White House asks the judicial branch to declare that the President can use executive privilege to block Congressional investigations, Prakash said it’s possible that a court would find that Congress’ interest in determining whether members of the executive branch broke the law to be sufficient enough to pierce the veil the administration hopes to draw around its actions.

“One could always say, ‘we’re worried about the possible, uh, possible, uh, uh, possible crimes by executive branch officials and therefore we need this information.’ If that’s enough to overcome the privilege, you might understand that as saying that, in effect, there is no privilege vis-a-vis Congress.”

“That might very well be the right answer, but it’s not an answer that the courts have given us yet,” he said, adding that House Democrats will most likely use such an argument if they try to enforce their subpoena in court.

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