Photo Courtesy of the Committee on Arrangements for the 2020 Republican National Committee via Getty Images
By Elie Honig
I admit: it’s easy to roll your eyes at the Hatch Act. I might have, just maybe, even had some dismissive words of my own about the well-intentioned but much-maligned federal law while I was subject to its jurisdiction, back when I worked as a prosecutor in the Department of Justice. It seemed like just one more set of rules we had to follow, and not a particularly important one. But now that I’m a bit older and maybe a smidge wiser, I also admit: I was wrong about the Hatch Act.
The fundamental purpose of the Hatch Act is to keep politics out of the federal workplace — and, more importantly, to keep the day-to-day power of government out of politics. (If you’re picturing former Utah Senator Orrin Hatch as the sponsor of the law, close but wrong Hatch; it actually was named for Senator Carl Hatch back in 1939, when Orrin was five years old.) Most of the Act’s provisions apply to all federal Executive Branch employees, except the president and vice president — the thinking apparently being that it is too difficult for those two officials, who actually live inside federal workplaces, to divorce themselves from politics.
As a humble, non-presidential SDNY prosecutor, I certainly qualified for regulation under the Act. We would have to fill out forms or watch some mandatory video every so often, reminding us what we could and could not do. (Would I set my computer volume low but just loud enough that I could hear the “ding” and know when to hit the “next” button? No comment.)
I’m sure those videos were chock-full of useful information, but mostly it was common sense to apply the Hatch Act as a federal employee. If it was political — don’t do it in the office. Don’t forward political messages from your “usdoj.gov” email account. Don’t wear political t-shirts or buttons in the office. No fundraising pizza parties in the conference room. And, more importantly, don’t take your official position outside the office. If you do choose to get involved in political activity — going door-to-door, attending a fundraiser — do not bring up or utilize in any way the fact that you are a federal employee. No “I’m an Assistant U.S. Attorney and I support such-and-such for Town Council.” In my eight-plus years with DOJ, I never once saw or heard of any of my colleagues getting in trouble for a Hatch Act violation, though I did occasionally see political bumper stickers or buttons hung up on office cork boards. (Don’t subpoena me, I’m not talking.)
Part of the problem with the Hatch Act is that it has some teeth, but not many. A violation is punishable by a fine of up to $1,000 and by suspension, demotion or even removal from federal employment. (The law also provides for a “reprimand” — the dreaded sternly-worded letter). And it is a federal crime to “intimidate, threaten, command, or coerce” a federal employee to engage in prohibited political activity, though I’ve never once heard of anyone being charged under this statute. (Seriously: if you are aware of such a case, write to us at [email protected], I’d be interested to see it.)
My mild cynicism aside, the law truly does serve an important purpose. Every federal employee is privileged to do the job, and holds precious responsibility over some aspect of our public life. And we are wise not to tolerate any use of official power, no matter how seemingly trivial, to influence or infect our politics. Yet, despite the restrictions placed on thousands of federal employees, we have seen the leadership of the Trump administration engage in an ongoing, unapologetic, open and notorious Hatch Act violation-palooza.
The Republican National Convention was a lowlight. Mike Pompeo made history (in the bad way) by becoming the first sitting Secretary of State ever to speak at a political convention, proselytizing from a hotel roof in Israel for Trump’s re-election. Pompeo’s staff claimed he was speaking purely in his personal capacity, which is nonsense given that Pompeo used government resources to travel to Israel and surely was surrounded by his security detail. And even if Pompeo had paid his own way, he still used his title as Secretary of State to lend heft to his remarks about Trump’s foreign policy credentials. Here’s how a principled and prudent Secretary of State, Colin Powell, once put it: “I am obliged not to participate in any way, shape, fashion, or form in parochial, political debates.” Listen up and take notes, Mike Pompeo.
“Acting” Secretary of Homeland Security Chad Wolf — quotation marks intentional, given constitutional concerns about the legality of his current appointment — held a naturalization ceremony, standing next to a grinning President, on national tv, as a Convention showcase. (Wolf later claimed — “implausibly” would be kind here — that he didn’t realize the ceremony was for use at the Convention. At least the lie shows he recognized the act itself was wrong.) Not only did this ceremony violate the Hatch Act, but it was grotesque. If you’ve ever been to a naturalization ceremony, you know that it celebrates the greatest things about this country, and is a uniquely personal and emotional event for the people who are sworn in as citizens. You can’t go to one of these events and not get choked up. It is cheap to use a naturalization ceremony as political stagecraft.
And the Convention was just the culmination of a years-long Hatch Act violation spree. Kellyanne Conway is the Babe Ruth of Hatch Act violations, routinely attacking Democratic presidential candidates in her official capacity, blowing out all prior records and likely to stand through history as a giant of intermingling Executive Branch business and politics. In June 2019, regulators found that Conway had committed numerous violations, and recommended that Trump remove her from office. (Guess whether or not he did?) Mark Meadows, Ivanka Trump, Dan Scavino, and others also appear to have violated the Act while doing official business.
So who’s in charge of this mess? Technically, it falls to something called the U.S. Office of Special Counsel to police Hatch Act violations. No, not Robert Mueller — he was just plain old “Special Counsel” — but Trump appointee Henry Kerner. Other than his quickly-ignored recommendation that the president discipline Conway, Kerner seems to have been asleep at the wheel. It remains to be seen if he takes action in the wake of the Convention, with its Hatch Act-busting exhibitionism.
But even if he does, don’t expect much in terms of tangible results. The agency charged with hearing Hatch Act disputes, the U.S. Merit Systems Protection Board, currently has unfilled vacancies and cannot even reach a quorum to do business. It has a backlog of over 2,000 pending cases. Political inertia and inaction are effectively killing the law designed to keep government out of politics. Political disdain hasn’t helped either. Meadows recently chortled that “nobody outside of the Beltway really cares” about the Hatch Act.
I do care. And I’m going to make a resolution. No more ridiculing of the Hatch Act for me. Sure, we’ve had our ups and downs. Yeah, I’ve had a laugh or two. But the Hatch Act is a well-intended and important part of our governmental system.
We do not and should not permit people to use the trappings of governmental power to obtain more power. In extreme scenarios, this is how despots hold onto power indefinitely. Our law does a service by stomping out this kind of behavior, even in its most trivial, bumper-stickers-in-the-office manifestation. Federal governmental power and politics simply should not mix — and if they do, we could be headed down a dangerous road.