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.

But in a letter sent to Cummings’ office late Monday evening, White House Counsel Pat Cipolline informed Cummings that the White House would
“respectfully decline the invitation to make Ms. Conway available for testimony before the Committee,” citing the Trump administration’s view that “the President’s immediate advisers are absolutely immune from congressional testimonial process.”

Cipollone’s letter continues the usual Trump administration practice of ignoring requests for administration officials to testify before Democratic-led House committees. Cummings has already announced plans to hold a vote to authorize a subpoena for her testimony when the committee meets on Wednesday.

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.”