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Federal agency recommends that Kellyanne Conway be removed from service over Hatch Act

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Kellyanne Conway

The U.S. Office of Special Counsel said Kellyanne Conway violated the law numerous times by criticizing Democratic presidential candidates while speaking in her official capacity during television interviews and on social media. | Evan Vucci/AP photo

The independent federal agency that oversees compliance with the Hatch Act has recommended that President Donald Trump’s top aide Kellyanne Conway be removed from her job after she repeatedly used her office for political purposes.

The U.S. Office of Special Counsel sent a report to Trump on Thursday that said Conway violated the law numerous times by criticizing Democratic presidential candidates while speaking in her official capacity during television interviews and on social media. It is the first time the office, which is not affiliated with former special counsel Robert Mueller and the Russia investigation, has made such a recommendation for a White House official.

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The office, which described Conway as a “repeat offender,” wrote: “Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system—the rule of law.”

Conway did not respond to a request for comment, “Blah, blah, blah,” she said May 29th when she was asked about the Hatch Act by reporters at the White House. “If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

Trump is unlikely to act on the recommendation. A White House spokesman criticized the Office of Special Counsel for being influenced by liberal organizations.

“The Office of Special Counsel’s unprecedented actions against Kellyanne Conway are deeply flawed and violate her constitutional rights to free speech and due process,” spokesman Steve Groves said. “Others, of all political views, have objected to the OSC’s unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees. Its decisions seem to be influenced by media pressure and liberal organizations – and 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.”

On May 11, the White House Counsel Pat Cipollone wrote a letter to OSC complaining that it had received a 17-page report on May 29, 2019, raising “numerous unsubstantiated allegations spanning many months” that had never been mentioned before with little time to respond. “The report is based on numerous grave legal, factual, and procedural errors,” he said.

POLITICO reported in May that the office has received a growing number of complaints since Trump took office about federal employees allegedly violating the Hatch Act. In Trump’s first year on the job, formal complaints to the government office that oversees compliance with the 80-year-old law jumped nearly 30 percent.

Watchdog groups say the rise in complaints reflects broader ethical lapses in the Trump administration, including staffers spending staggering amounts on travel, promoting the president’s businesses and failing to file legally required financial reports.

So far, the OSC has determined that at least 10 Trump senior officials violated the Hatch Act, according to a person at OSC familiar with the law. But in most cases, the office decided that the violation was minor enough to only merit a warning letter, not disciplinary action. Only one case has been sent to Trump for action. His predecessors faced similarly small numbers of cases.

One of the most high profile instances came when the office criticized Nikki Haley during her tenure as ambassador to the United Nations for retweeting a Trump message endorsing a South Carolina congressman.

Watchdog groups estimate that the OSC’s official numbers might just be a fraction of the total, though, as many cases go unreported. They point to the administration’s willingness to tap political appointees with no government experience and the rise of government social media use as two main factors driving up Hatch Act cases. The numbers of possible violations are expected to rise as the 2020 presidential race further dominates the headlines.

In total, thenumberof official complaints rose from 151 in fiscal year 2014, the first year after Congress significantly narrowed the criteria for violations, to 263 in fiscal year 2018. OSC already has received 177 complaints this fiscal year with more than four months left to go.

The law, enacted in 1939 and named for New Mexico Sen. Carl Hatch, takes aim at federal employees using their perch to push political candidates. At the time, Democrats were facing allegations of deploying Works Progress Administration employees to influence the 1938 elections. Today, the behavior that could come under scrutiny might include tweeting political messages, speaking about candidates, diverting official travel to attend political events and fundraising. The president and vice president are exempt from the law.

When the government receives a complaint, it investigates and often resolves them with a simple warning letter. In some cases, the oversight office will discipline the employee — perhaps with a fine or suspension — or allow them to fight the case in front of a board. Of the 286 cases closed in fiscal year 2018, 49 employees were issued letters, 10 took some corrective action for their behavior and six faced discipline.

Only in rare instances does the president determine if a staffer should be punished, according to the person at OSC. Trump has only been asked to determine the punishment for one staffer, Conway.

The OSC said Conway violated the Hatch Act during a pair of TV interviews when she talked about why voters should support Republican Roy Moore and oppose Democrat Doug Jones in the Alabama Senate race. The case was referred to Trump for “appropriate disciplinary action,” but it doesn’t appear he took any action. Conway had previously received training from the White House on the law after she caused a bipartisan uproar for promoting the clothing line of Trump’s daughter’s and senior adviser, Ivanka Trump.

The latest Conway judgement stemmed from complaints made by the Citizens for Responsibility and Ethics in Washington in October 2018 and May 2019.

“Conway’s repeated violations and publicly expressed disdain for the law show a dangerous disregard for governmental ethics, the rule of law and the long-held understanding that government officials should not use their official positions to advance partisan politics,” CREW Executive Director Noah Bookbinder said on Thursday. “We join OSC in calling for Kellyanne Conway to be removed from federal service.”

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