The Hatch Act wasn’t meant for advisers such as Kellyanne Conway, and House Democrats have no case to say it was

The Hatch Act wasn't meant for advisers such as Kellyanne Conway, and House Democrats have no case to say it was

House Democrats on Wednesday voted in favor of issuing a subpoena to senior White House adviser Kellyanne Conway because she belittled some of the party’s presidential candidates. Why not? It’s not like there are children literally dying at the southern border.

Wait, yes there are! The bodies of a Salvadoran father and his child were found having drowned Monday after the pair tried crossing the Rio Grande from Mexico. After touching land, they would certainly have found a border agent and claimed asylum, a gaping hole in our laws that serves as an incentive for everyone south of the border to sneak their way here for an indefinite stay. Democrats don’t care about dealing with that, so they’ll instead fret about a government staffer who makes them angry.

The Office of Special Counsel issued a letter to the White House earlier this month recommending that President Trump fire Conway because she had criticized Democrats in TV appearances and on social media, which the Office of Special Counsel said was in violation of the 1930s-era Hatch Act.

The Office of Special Counsel summarizes the intent of the law as “to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”

Conway violated precisely none of these by mocking Sen. Cory Booker, D-New Jersey, as a poor motivational speaker, which former Obama official David Axelrod has also done; or by accusing Sen. Elizabeth Warren, D-Massachusetts, of “appropriating somebody else’s heritage,” which Native Americans have already been doing; or by identifying Vermont Sen. Bernie Sanders and former Vice President Joe Biden, both of whom are competing for the Democratic nomination, as “two old white straight men career politicians,” which is factually indisputable.

I didn’t make these examples up at random. They’re literally in the Office of Special Counsel’s letter laying out the reasons for Conway’s termination.

The Hatch Act was very clearly not intended for the president’s advisers and assistants, which essentially function as extensions of the president himself, or, at the very least, representatives for the office. That’s why White House staff with the title “assistant to the president,” which Conway has, are granted immunity from compelled testimony before Congress. Jonathan Shaub, a former attorney-adviser in the Office of Legal Counsel, wrote at Lawfare in May that senior advisers do “not have to comply with a congressional subpoena for testimony,” citing an OLC legal opinion in 2014, which has so far held up in the court system.

The law was, instead, meant for workers at the IRS, the State Department, the EPA, or the Department of Education. Those are the people you don’t want overtly campaigning in their official capacity on behalf of any candidate. There are at least two examples of the secretaries of those departments doing just that under the Obama administration.

The Office of Special Counsel found in 2012 that then-Health and Human Services Secretary Kathleen Sebelius violated the Hatch Act by stating at a public event that “it’s hugely important to make sure that we reelect the president and elect a Democratic governor.” The agency similarly found that in 2016, then-Housing and Urban Development Secretary Julian Castro, who is now also running for the Democratic presidential nomination, violated the law when in a media interview he said that Hillary Clinton was “the most experienced, thoughtful, and prepared candidate for president that we have this year.”

Conway, by contrast, doesn’t oversee a program or an agency. She works directly with the president and sometimes goes on TV to represent his point of view, which, by nature of her job, would have to be largely in sync with the president himself. And he’s exempt from the Hatch Act!

Even if Conway were to comply with the subpoena and turn up in front of House Democrats for testimony, Trump has said he has no intention of firing her for answering questions in media interviews. A hearing would change nothing, though it might give Conway yet more airtime to push the White House’s message.

Conway didn’t break the law, and Democrats have no case to say she did. Do they really want to give her another platform to make fun of their 2020 candidates?

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