Did Secretary of State Mike Pompeo Violate the Hatch Act?

I have written several articles on postings related to politicians. A list of links have been provided at bottom of this article for your convenience. This article will, however address different aspects on these politicians.

With the exception of the president and vice president, all federal employees—including career workers, White House aides, Cabinet secretaries and all other political appointees—are subject to the restrictions of the Hatch Act. Among its responsibilities, Office of Special Counsel (OSC) is both an investigative and prosecutorial agency. OSC can bring charges before the Merit Systems Protection Board, where it would act as prosecutor on the case.

Background of the Hatch Act:

Widespread allegations that local Democratic Party politicians used employees of the Works Progress Administration (WPA) during the congressional elections of 1938 provided the immediate impetus for the passage of the Hatch Act. Criticism centered on swing states such as Kentucky, Tennessee, Pennsylvania, and Maryland. In Pennsylvania, Republicans and dissident Democrats publicized evidence that Democratic politicians were consulted on the appointment of WPA administrators and case workers and that they used WPA jobs to gain unfair political advantage. In 1938, a series of newspaper articles exposed WPA patronage, and political contributions in return for employment, prompting an investigation by the Senate Campaign Expenditures Committee, headed by Sen. Morris Sheppard, a Texas Democrat. Despite that investigation’s inconclusive findings, many in both parties determined to take action against the growing power of the WPA and its chief administrator, Harry Hopkins, an intimate of President Franklin Roosevelt. The Act was sponsored by Senator Carl Hatch, a Democrat from New Mexico. At the time, Roosevelt was struggling to purge the Democratic party of its more conservative members, who were increasingly aligned with the administration’s Republican opponents. The president considered vetoing the legislation or allowing it to become law without his signature, but instead signed it on the last day he could do so. His signing message welcomed the legislation as if he had called for it, and emphasized the protection his administration would provide for political expression on the part of public employees. Criticism centered on swing states such as Kentucky, Tennessee, Pennsylvania, and Maryland. In Pennsylvania, Republicans and dissident Democrats publicized evidence that Democratic politicians were consulted on the appointment of WPA administrators and case workers and that they used WPA jobs to gain unfair political advantage. In 1938, a series of newspaper articles exposed WPA patronage, and political contributions in return for employment, prompting an investigation by the Senate Campaign Expenditures Committee, headed by Sen. Morris Sheppard, a Texas Democrat. Despite that investigation’s inconclusive findings, many in both parties determined to take action against the growing power of the WPA and its chief administrator, Harry Hopkins, an intimate of President Franklin Roosevelt. The Act was sponsored by Senator Carl Hatch, a Democrat from New Mexico. At the time, Roosevelt was struggling to purge the Democratic party of its more conservative members, who were increasingly aligned with the administration’s Republican opponents. The president considered vetoing the legislation or allowing it to become law without his signature, but instead signed it on the last day he could do so. His signing message welcomed the legislation as if he had called for it, and emphasized the protection his administration would provide for political expression on the part of public employees.

Provisions of the Hatch Act:

The 1939 Act forbids the intimidation or bribery of voters and restricts political campaign activities by federal employees. It prohibits using any public funds designated for relief or public works for electoral purposes. It forbids officials paid with federal funds from using promises of jobs, promotion, financial assistance, contracts, or any other benefit to coerce campaign contributions or political support. It provides that persons below the policy-making level in the executive branch of the federal government must not only refrain from political practices that would be illegal for any citizen, but must abstain from “any active part” in political campaigns, using this language to specify those who are exempt:

(i) an employee paid from an appropriation for the Executive Office of the President; or
(ii) an employee appointed by the President, by and with the advice and consent of the Senate, whose position is located within the United States, who determines policies to be pursued by the United States in the nationwide administration of Federal laws.

The act also precludes federal employees from membership in “any political organization which advocates the overthrow of our constitutional form of government”, a provision meant to prohibit membership in organizations on the far left and far right, such as the Communist Party USA and the German-American Bund. An amendment on July 19, 1940, extended the Act to certain employees of state and local governments whose positions are primarily paid for by federal funds. It has been interpreted to bar political activity on the part of employees of state agencies administering federal unemployment insurance programs and appointed local law enforcement agency officials with oversight of federal grant funds. The Hatch Act bars state and local government employees from running for public office if any federal funds support the position, even if the position is funded almost entirely with local funds. The Merit Systems Protection Board and the Office of Special Counsel (OSC) are responsible for enforcement of the Hatch Act.

Current restrictions:

Activity	Regular Federal Employees	Restricted Federal Employees
Active in partisan political management	Permitted	Prohibited
Assist in voter registration drives	Permitted	Non-partisan only
Attend political rallies, meetings, and fundraisers	Permitted
Be candidates in non-partisan elections	Permitted
Be candidates in partisan elections	Prohibited
Campaign for or against candidates	Permitted	Prohibited
Campaign for or against referendum questions, constitutional amendments, or municipal ordinances	Permitted
Circulate nominating petitions	Permitted	Prohibited
Contribute money to partisan groups and candidates in partisan elections	Permitted
Distribute campaign literature to include via email or social media	Permitted	Prohibited
Engage in political activity while on duty	Prohibited
Express opinions about partisan groups and candidates in partisan elections while not at work or using official authority	Permitted
Express opinions about political issues	Permitted
Invite subordinate employees to political events or otherwise suggest that they engage in political activity	Prohibited
Join partisan groups	Permitted
Make campaign speeches for candidates in partisan elections	Permitted	Prohibited
Participate in campaigns	Permitted	Only if candidates do not represent a political party
Register and vote as they choose	Permitted
Sign nominating petitions	Permitted
Solicit or discourage the political activity of any person with business before the agency	Prohibited
Solicit, accept, or receive political contributions (including hosting or inviting others to political fundraisers)	Prohibited
Use official authority to interfere with an election or while engaged in political activity	Prohibited

How is the RNC violating the Hatch Act?

First lady Melania Trump spoke from the White House Rose Garden on Tuesday, believed to be the first time a first lady has delivered a speech at a political convention from the White House. Then, Vice President Mike Pence spoke from Fort McHenry, which drew criticism from advocates that a National Park was being used as the backdrop for a political speech. And on Thursday, President Donald Trump closed out the convention with a speech on the White House South Lawn, which drew criticism from both sides of the aisle. Both Trump and Pence are exempt from the law known as the Hatch Act, which “prohibits Federal employees from engaging in political activities while on duty, in a Government room or building, while wearing an official uniform, or while using a Government vehicle.”

However, other events from the 2020 RNC are drawing criticism for possible violations of the Hatch Act; namely, a naturalization ceremony and a presidential pardon that took place in previously recorded videos from the White House, and Secretary of State Mike Pompeo’s speech while on a diplomatic trip. In a statement, a State Department spokesperson said that Pompeo was addressing the RNC in a personal capacity: “No State Department resources will be used. Staff are not involved in preparing the remarks or in the arrangements for Secretary Pompeo’s appearance.” Additionally, White House spokesman Judd Deere stated that “any government employees who may participate will do so in compliance with the Hatch Act.” Pompeo’s speech also came after he reminded State Department employees a month earlier to “not improperly engage the Department of State in the political process,” according to a cable obtained by CNN.

This is not the first time the Trump administration, in the eyes of some, has run afoul of the Hatch Act. More than a dozen Trump administration officials have been cited for violating the Hatch Act, according to an analysis by ProPublica and NPR station WNYC. Most notably, in June 2019, the U.S. Office of Special Counsel recommended that Trump fire Kellyanne Conway over the White House counselor’s repeated violations of the Hatch Act. According to the Washington Post, White House lawyers rejected the request for Conway to appear in front of the House Oversight Committee, citing “long-standing, bipartisan precedent” that she “cannot be compelled to testify before Congress with respect to matters related to her service as a senior adviser to the President,” according to a letter White House counsel Pat Cipollone sent to the panel. Conway shrugged off the OSC recommendation, saying: “Blah, blah, blah. If you’re trying to silence me through the Hatch Act, it’s not going to work.”

So as this week’s Republican National Convention has produced fresh complaints from Democrats and ethics watchdogs about Hatch Act violations, the question looms: Does the law actually have the teeth to hold those, Democrats or Republicans, who break it accountable? While there are measures in place to discipline Hatch Act violators, many of those rely on Trump appointees — and the president himself — to enforce them, said experts Spectrum News spoke with. The OSC is the agency tasked with enforcing the Hatch Act, while the president or the Merit Systems Protection Board are responsible for doing out discipline. The OSC generally refers high-level cases to the president. As in the Conway case, Trump has apparently shown little interest in holding his aides accountable. And all three seats on the Merit Systems Protection Board have been vacant since 2019 as Trump’s appointments to fill them await Senate confirmation, effectively nullifying the agency for the time being. Also, the OSC itself is led by Henry Kerner, a Trump appointee, who critics say should be doing more to enforce the Hatch Act. While the Hatch Act makes exceptions for the president and vice president, they are still prohibited from ordering other federal employees into political activity.

“That’s criminally punishable. Now the problem is, at the moment, [Attorney General] Bill Barr would be in charge of those criminal prosecutions, and we know he’s not going to do it. But that will not necessarily be true forever. This is a sufficiently outrageous pattern of conduct that should be evaluated by a future administration, whether criminal offenses happened here,” said Eisen, who also served as special counsel to the House Judiciary Committee during Trump’s impeachment. Eisen added that recommendations alone from the OSC could be “powerful” in sending a message. But they won’t necessarily lead to disciplinary action. Donald Sherman, deputy director of the Citizens for Responsibility and Ethics in Washington (CREW), said the problem isn’t the Hatch Act, it’s the Trump’s administration’s flaunting of it. Sherman said the president “has time and again demonstrated not only his disdain for ethical rules, but now he seems to be affirmatively breaking the law in order to help boost his sagging polling numbers.”

Sherman added that he believes the scope and scale of Hatch Act violations by the Trump administration is “glaring.” CREW is filing complaints with the OSC over Wolf’s role in the naturalization ceremony that was broadcast during the convention and Agriculture Secretary Sonny Perdue talking up Trump’s re-election during an “official” visit Monday to a North Carolina farm with the president. The organization says it will review the entirety of the RNC for other potential violations. White House officials have insisted the RNC has not violated the Hatch Act. They argue that residential areas of the White House, such as the South Lawn and Rose Garden, are authorized for political use. They say all of the officials speaking are doing so in their personal capacities. They insist Pompeo’s speech did not use government resources. And they say the controversial naturalization ceremony was official presidential business and the campaign simply chose to use video footage available to the public. Critics, however, believe that some of the White House’s explanations are flimsy. For example, they say it’s hard to imagine Pompeo did not, at the very least, require the presence of taxpayer-funded security when he recorded his speech from Jerusalem. And the naturalization ceremony was clearly done with plans to use it during RNC coverage, they argue.

Sherman concedes there are some gray areas, including with the use of some areas of the White House and the “personal capacity” designation. Regardless, he says both are problematic. “When the president hosts a political party’s nominating convention from the grounds that the people pay for, it says to them, ‘This government only works for the Republican Party,'” Sherman said. And the implication that the secretary of state could truly speak in his own personal capacity about the president’s foreign affairs record, at the very least, blurs the line between government and politics. “This is why career foreign service officers are admonished not to engage in political events or political activity while they are abroad,” Sherman said.

“This is why Secretary [of State Hillary] Clinton and Secretary [of State Colin] Powell declined to speak at DNC and the RNC, respectively, in 2012 and 2004 because it is a problem for the nation’s top diplomat to toggle between speaking on behalf of the American people to foreign government leaders and being a shill for one party and a political candidate,” he added. White House Chief of Staff Mark Meadows on Wednesday downplayed the criticism the RNC is drawing over the Hatch Act, saying the law is being interpreted “well beyond the original intent.”

Conclusion:

I understand the reason for the Hatch Act, it was written and enacted to prevent residing politicians from utilizing taxpayer dollars and infrastructure to gain an unfair advantage while running for office. It is an old law that is virtually unenforceable. Wherever the President or Vice President goes and does he has a security detail. This detail is paid for by tax payer dollars. So what you are saying is that as soon as he gives a campaign speech, he has to start paying for his security detail out of campaign funds? Yah that will happen. Or will he pay for the use of Airforce one when he goes out on the campaign trail? That is supposedly a violation of the Hatch Act. While he is in office, the White House is essentially his home. You are saying that he can’t give his acceptance speech at his home? Especially with Covid-19 everywhere? So now with Mike Pompeo, he recorded a speech after he completed his duties for the day, you could see the night sky in the video. He was using his cell phone. Security was outside, which is where they would have been even if he was sleeping. I know the position is a salaried position and basically he is on duty 24 hours a day. But he is a human and is entitled to down times. As long as he has fulfilled his duties what he does in this down time is his own business. This act needs to go the way of the Logan Act, another act that is unenforceable.

Resources:

en.wikipedia.org, “Hatch Act of 1939,” wikipedia; govexec.com, “Feds Can Be Prosecuted for Hatch Act Violations, Though Pompeo and Wolf Are Likely in the Clear,” By COURTNEY BUBLÉ and ERIC KATZ;

Common Sense and Ramblings In America

Did Secretary of State Mike Pompeo Violate the Hatch Act?

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