Microsoft Word - 21.11.09 [Final] Comprehensive Report

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NVESTIGATION OF

OLITICAL

CTIVITIES BY

ENIOR

RUMP

DMINISTRATION

FFICIALS

URING THE

2020

RESIDENTIAL

LECTION

U.S. Office of Special Counsel

November 9, 2021

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TABLE OF CONTENTS

Part I: Executive Summary ............................................................................................................ 1

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Part II: The Hatch Act .................................................................................................................... 7

Part III: Pervasive Hatch Act Violations in the Trump Administration ...................................... 10

1. The 2020 Republican National Convention Generated Substantial Public Discussion of the

Hatch Act and an Unprecedented Number of Hatch Act Complaints ................................. 10

2. OSC Received Numerous Complaints Alleging that Senior Trump Administration Officials

Violated the Hatch Act in the Months Prior to the 2020 Election ...................................... 12

3. Legal Standard Required to Establish a Hatch Act Violation ............................................. 14

A. The employees described in this Part were all covered by the Hatch Act. .................... 14

B. It is a prohibited use of official authority for an employee to support or oppose a

candidate for partisan political office while acting in an official capacity. .................. 14

4. The Subject Officials Violated the Hatch Act by Campaigning on Behalf of President

Trump’s Reelection While Acting Within the Scope of Their Official Duties ................... 17

A. Eleven senior Trump administration officials violated the Hatch Act during official

interviews or media appearances. .................................................................................. 17

i.Factual Findings ...................................................................................................... 18

a.  Secretary of Energy Dan Brouillette ..................................................................... 18

b.Senior Counselor to the President Kellyanne Conway ......................................... 18

c.  White House Director of Strategic Communications Alyssa Farah ...................... 20

d.U.S. Ambassador to Israel David Friedman ......................................................... 20

e.  Senior Advisor to the President Jared Kushner ..................................................... 21

f.  White House Press Secretary Kayleigh McEnany ................................................ 21

g.White House Chief of Staff Mark Meadows ........................................................ 22

h.Senior Advisor to the President for Policy Stephen Miller ................................... 23

i.White House Deputy Press Secretary Brian Morgenstern .................................... 24

j.National Security Advisor Robert O’Brien ........................................................... 25

k.Chief of Staff to the Vice President Marc Short ................................................... 25

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ii.Analysis .................................................................................................................. 27

B. Senior Trump administration officials violated the Hatch Act during the Republican

National Convention. .................................................................................................... 29

i.Factual Findings – Secretary of State Michael Pompeo and the Jerusalem Speech 30

ii.Analysis – Secretary of State Michael Pompeo and the Jerusalem Speech ............ 32

iii.Factual Findings – Acting Secretary of Homeland Security Chad Wolf and the

Naturalization Ceremony .............................................................................................. 34

iv.Analysis – Acting Secretary of Homeland Security Chad Wolf and the

Naturalization Ceremony .............................................................................................. 37

5. The Trump Administration Ignored the Hatch Act and Approved of Senior Officials

Illegally Campaigning on Behalf of President Trump ........................................................ 38

A. The Trump administration refused to hold senior officials accountable for violating the

Hatch Act and in at least one case publicly defended a senior official who OSC found

violated the Act. ............................................................................................................ 39

B. The Trump administration took no apparent action to control or prevent senior

administration officials from committing frequent and similar violations of the Hatch

Act. ................................................................................................................................ 41

Part IV: Enforcement Challenges ................................................................................................ 45

1. OSC’s enforcement tools are limited with respect to Senate-confirmed presidential

appointees (PAS) and White House commissioned officers. .............................................. 45

2. OSC did not receive from the Trump administration the good faith cooperation necessary

to ensure full compliance with the Hatch Act. .................................................................... 46

3. Prior OSC advice to executive branch agencies—that the Hatch Act does not prohibit

agencies from defending an administration’s policy positions—appears to have been

interpreted in a way that allowed senior agency officials to engage in political activity

under the guise of defending the Trump administration’s policy positions. ....................... 49

4. OSC does not have the authority to issue or update Hatch Act regulations. ....................... 53

5. Existing law is unclear with respect to which portions, if any, of the White House may be

used for public partisan political events and who may authorize such uses. ...................... 55

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6. OSC has no clear mechanism for obtaining reimbursement for taxpayers when a

government official engages in taxpayer-funded campaign activity while on official

government travel. ............................................................................................................... 56

7. The MSPB has not had a quorum since January 2017. ....................................................... 58

Part V: Conclusion ....................................................................................................................... 59

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PART I: EXECUTIVE SUMMARY

This report presents the United States Office of Special Counsel’s (OSC) investigative

findings and conclusions regarding complaints OSC received—largely in response to the 2020

Republican National Convention (RNC)—alleging that senior Trump administration officials

used their official authority or influence to interfere with or affect the 2020 presidential election

in violation of the Hatch Act. As described herein, OSC investigated those complaints and

determined that hosting the RNC at the White House did not itself violate the Hatch Act, but that

at least 13 senior Trump administration officials did violate the Hatch Act prior to the election.

Each of these high-profile violations was committed by an official OSC believes, based on

current law, could only have been disciplined by then-President Donald J. Trump. Thus, the

cases described herein demonstrate both a willingness by some in the Trump administration to

leverage the power of the executive branch to promote President Trump’s reelection and the

limits of OSC’s enforcement power under the existing statutory scheme to prevent them from

doing so. OSC is issuing this report to educate employees about Hatch Act-prohibited activities,

highlight the enforcement challenges that OSC confronted during its investigations, and deter

similar violations in the future.

During a press conference on August 5, 2020, President Trump was asked about the

Hatch Act implications of using the White House as the venue for the RNC. He responded,

“There is no Hatch Act because it doesn’t pertain to the president.”

Although true that the

president is exempt from the Hatch Act, the law most certainly does apply to senior members of

the president’s administration. Nonetheless, with respect to an administration’s senior-most

officials—whom only the president can discipline for violating the Hatch Act—the Hatch Act is

only as effective in ensuring a depoliticized federal workforce as the president decides it will be.

Where, as happened in the Trump administration, the White House chooses to ignore the Hatch

Act’s requirements, there is currently no mechanism for holding senior administration officials

accountable for violating the law.

Part II of this report briefly describes the history of restrictions on federal employees’

political activity and the developments that led Congress to pass the Hatch Act in 1939. It

focuses, in particular, on why Congress chose to prohibit federal employees from using their

official authority or influence for the purpose of interfering with or affecting elections. Each of

the violations described in Part III implicates that prohibition.

Part III contains OSC’s determination that some officials in the Trump administration

intentionally ignored the law’s requirements and tacitly or expressly approved of senior

administration officials violating the law. Many of the complaints that prompted this

investigation were filed during or after the RNC, which, because of the coronavirus pandemic,

featured events held on White House grounds. As far as OSC is aware, it was the first political

party convention since passage of the Hatch Act to do so. The complaints raise three issues:

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All citations and references in this report are to documents or videos that are publicly available or on file with

OSC. The quotations from Trump administration officials in this executive summary are cited in full where they

appear elsewhere in this report.

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The first issue is whether President Trump or then-Vice President Michael Pence violated

the Hatch Act. Neither did, because both the president and the vice president are expressly

exempt from coverage under the provisions of the Hatch Act that OSC enforces.

The second issue is whether the Hatch Act prohibits a political party from holding a

convention at the White House. It does not. The Hatch Act only applies to federal executive

branch employees. Assuming that the president or the vice president, neither of whom is subject

to the Hatch Act, authorizes use of the White House for a political convention and the

convention itself is produced by nonfederal employees, that circumstance alone would not

violate the Hatch Act. And as OSC said publicly during the RNC, ambiguities in existing law

mean that there are certain areas of the White House and its grounds in which even federal

employees are permitted to engage in political activity.

The final issue is whether a number of senior Trump administration officials violated the

Hatch Act, in connection with the RNC or otherwise, prior to the 2020 election. OSC concludes

that at least 13 senior Trump administration officials did so and, furthermore, that they did so

with the administration’s approval. Under current law, OSC may seek disciplinary action, up to

and including removal from federal service, against most federal employees who violate the

Hatch Act by prosecuting alleged violations before the Merit Systems Protection Board (MSPB).

But in the case of violations by Senate-confirmed presidential appointees—and, in OSC’s view,

also by commissioned officers

within the Executive Office of the President—OSC may only

submit a report to the president. This is both legally required, as OSC believes there are

significant constitutional concerns with the MSPB disciplining commissioned officers,

and as a

practical matter the only recourse available to OSC when there is no MSPB quorum, as was the

case during the entirety of the Trump administration. It is then up to the president to discipline

those employees. President Trump not only failed to do so, but he publicly defended an

employee OSC found to have repeatedly violated the Hatch Act. This failure to impose

discipline created the conditions for what appeared to be a taxpayer-funded campaign apparatus

within the upper echelons of the executive branch. And it allowed for, as one federal court said

of a senior administration official, members of the administration to “violate the Hatch Act with

seeming impunity . . . .”

OSC received complaints alleging that the 13 senior Trump administration officials listed

in Part III violated the Hatch Act in one of two ways: by making statements supporting or

opposing a candidate for partisan political office while speaking in an official capacity, or by

using their official authority in connection with, and in furtherance of, the RNC. Section

7323(a)(1) of Title 5 of the U.S. Code prohibits federal executive branch employees from using

their official authority or influence to interfere with or affect the results of an election. Under

that prohibition, it is illegal for an employee to support or oppose a candidate for partisan

political office while acting in an official capacity. Yet Trump administration officials did

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The Hatch Act also contains criminal provisions, but those are outside of OSC’s jurisdiction. As used in this

report, the term “Hatch Act” relates only to those matters within OSC’s jurisdiction.

The term “commissioned officer” refers not to military personnel but rather to senior White House officials

appointed directly by the president.

See infra Part IV(1).

Citizens for Responsibility and Ethics in Washington v. U.S. Office of Special Counsel, 480 F. Supp. 3d 118, 134

(D.D.C. 2020).

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precisely that. And while the specific facts of each case are different, they share this

fundamental commonality—senior Trump administration officials chose to use their official

authority not for the legitimate functions of the government, but to promote the reelection of

President Trump in violation of the law.

The administration’s willful disregard for the law was especially pernicious considering

the timing of when many of these violations took place. OSC cannot, in most cases, stop

violations from happening in real time. Even apparently straightforward violations of the Hatch

Act may not turn out to actually be violations upon further investigation. Therefore,

investigating alleged violations is the only way to ensure a fair result. Accordingly, OSC affords

appropriate due process to the subject of a complaint and gathers the relevant facts before

reaching a conclusion. As a result, OSC’s investigations can often stretch out for weeks or even

months. This reality creates a window for an administration that is so inclined to ignore the

Hatch Act in the final months of an election cycle, knowing full well that any public report or

disciplinary action would not likely occur until well after the election. However, the benefit to

the administration and resultant harm—the use of official authority or influence to interfere with

or affect an election—would accrue on or before election day. As described in Part III, OSC has

concluded that the Trump administration tacitly or expressly approved myriad Hatch Act

violations committed within that critical period immediately prior to the 2020 election during

which OSC was unable to both investigate and resolve the violations before election day.

Many of the officials who violated the Hatch Act when speaking in an official capacity

during media interviews expressly referenced the 2020 election campaign and/or the candidacy

of President Trump’s principal opponent, then-candidate Joseph R. Biden, Jr., and his running

mate, then-candidate Kamala Harris. For example, Brian Morgenstern, then a White House

Deputy Press Secretary, said in one interview that candidate Biden was “hiding away” because

the Biden campaign knows “the more America sees of their ticket, the less they like them.”

Robert O’Brien, then the National Security Advisor, said in an interview “I expect the president

to be reelected and reelected overwhelmingly” and moments later rhetorically asked “who do

you want to turn to to rebuild the economy—the guy who’s proven he can do it, President

Trump, or somebody who’s been in Washington for 40 years?” And Marc Short, then the Vice

President’s Chief of Staff, said during one interview that the election would “present a

tremendous contrast to the American people to choose between a freedom and opportunity

agenda that the Trump/Pence administration stands for versus a path to socialism and decay that

we believe the Biden/Harris ticket stands for.” In short, each official campaigned on behalf of

President Trump while speaking as a representative of the United States government.

The decision by some in the Trump administration to flout the law by commingling

campaign-related activity and governmental operations is further illustrated by the two cases

related to the RNC. The first involves then-Secretary of State Michael Pompeo, who OSC

concludes violated the Hatch Act by changing U.S. Department of State (State Department)

policy to allow himself to speak at the convention and then, when engaging in political activity

by delivering that speech, using his official authority by repeatedly referencing the work of the

State Department. The second involves then-Acting Secretary of Homeland Security Chad Wolf,

who OSC concludes violated the Hatch Act by presiding over a naturalization ceremony that was

orchestrated for the purpose of creating content for the convention. Each took official acts in

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furtherance of President Trump’s reelection campaign. It appears that both violations stemmed

from requests that originated within the White House—or, in Secretary Pompeo’s case, possibly

the Trump campaign or President Trump himself—and thus they reflect the Trump

administration’s willingness to manipulate government business for partisan political ends.

Trump administration officials knew of the Hatch Act’s restrictions. Prior to the 2020

election, OSC issued two reports to President Trump documenting Hatch Act violations by a

senior administration official and an unprecedented 15 warning letters to senior administration

officials notifying them that they had violated the Hatch Act. And OSC made itself available

and did provide advice on the Hatch Act to the White House, as well as training materials and

advisory opinions when requested. Well aware of the Hatch Act’s requirements, some senior

officials in the Trump administration disregarded OSC’s advice and chose to engage in

prohibited political activity anyway. From OSC’s perspective, the administration’s attitude

toward Hatch Act compliance was succinctly captured by then-Chief of Staff Mark Meadows,

who said during an interview that “nobody outside of the Beltway really cares” about Trump

administration officials violating the Hatch Act.

In direct contradiction to that unfortunate comment, OSC was inundated with calls,

emails, and complaints from members of the public in response to the violations described in this

report. The cumulative effect of these repeated and public violations was to undermine public

confidence in the nonpartisan operation of government. Equally troubling, the obvious

noncompliance by senior administration officials also caused career federal employees to ask

OSC whether they were still required to comply with the Hatch Act. As OSC previously stated

in a letter to President Trump documenting Hatch Act violations by a senior administration

official, such flagrant and unpunished violations erode the principal foundation of our

democratic system—the rule of law.

Part IV lists seven enforcement challenges that substantially affected OSC’s ability to

ensure that senior Trump administration officials complied with the restrictions that Congress

imposed upon their political activity. Those enforcement challenges, and potential fixes for

each, are as follows:

1. OSC’s enforcement tools are limited with respect to Senate-confirmed

presidential appointees (PAS) and White House commissioned officers.

Potential fix: A statutory amendment that (1) allows OSC to pursue substantial monetary

penalties against PAS and commissioned officers before the MSPB, and (2) grants the

MSPB jurisdiction over former employees for Hatch Act violations committed during

their period of federal employment.

2. OSC did not receive from the Trump administration the good faith cooperation

necessary to ensure full compliance with the Hatch Act.

Potential fix: A statutory amendment granting the MSPB greater authority to enforce

OSC’s subpoenas and other investigative requests.

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3. Prior OSC Hatch Act advice to executive branch agencies—that the Hatch Act

does not prohibit agencies from defending an administration’s policies—appears to

have been interpreted in a way that allowed senior agency officials to engage in

political activity under the guise of defending the Trump administration’s policy

positions.

Potential fix: In response to incidents that arose during the 2020 election cycle, OSC is

using this report to provide updated advice to agencies regarding agency communications

that reference a candidate for elected office, including an incumbent president, and are

scheduled to be disseminated within 60 days of an election. Agency ethics officials

should conduct inquiries into the purpose of such communications to ensure that they are

not intended to promote or oppose a candidate. If agency ethics officials have concerns

about a particular communication, OSC recommends that they advise delaying the

communication until after the election. OSC is also available to answer questions from

agency officials about whether a given communication might implicate the Hatch Act.

4. OSC does not have the authority to issue or update Hatch Act regulations.

Potential fix: Either a statutory amendment expressly granting OSC rulemaking authority

or a determination within the executive branch that rulemaking authority for the Hatch

Act should be vested with OSC.

5. Existing law is unclear with respect to which portions, if any, of the White House

may be used for partisan political events and who may authorize such uses.

Potential fix: A statutory amendment clarifying in which areas of the White House

grounds employees are prohibited from engaging in political activity and under what

circumstances, if any, such areas may be used by nonfederal employees for political

activity.

6. OSC has no clear mechanism for obtaining reimbursement for taxpayers when a

government official engages in taxpayer-funded campaign activity while on official

government travel.

Potential fix: A statutory amendment allowing OSC to seek reimbursement before the

MSPB from the traveling official personally.

7. The MSPB has not had a quorum since January 2017.

Potential fix: Ensuring that there are always at least two confirmed MSPB members.

Furthermore, a statutory amendment authorizing OSC to seek enforcement of its

subpoenas in Article III courts in the event that the MSPB does not have a quorum would

guard against a recurrence of these issues if the MSPB were to ever lack a quorum in the

future.

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Part V concludes by noting that Congress’s judgment in passing the Hatch Act was that

“partisan political activities by federal employees must be limited if the Government is to operate

effectively and fairly, elections are to play their proper part in representative government, and

employees themselves are to be sufficiently free from improper influences.”

None of those

goals is achievable if the power of the federal government is used to campaign for candidates in

partisan elections, as happened during the 2020 election cycle. Moving forward, senior

executive branch officials must not allow compliance with the Hatch Act to be viewed as

optional or an unnecessary burden. Indeed, lower-ranking employees have faced, and continue

to face, potentially severe consequences, including removal from federal service, for violating

this law. OSC hopes that the enforcement challenges identified in this report can be addressed

and that the conduct of the Trump administration officials described in Part III turns out to be an

anomaly, not a precedent.

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U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 564 (1973).

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PART II: THE HATCH ACT

This Part describes the developments that led Congress to pass the Hatch Act and why

Congress chose, in particular, to prohibit federal employees from using their official authority or

influence for the purpose of interfering with or affecting elections. All the violations described

in Part III implicate that prohibition. Both the Trump White House and some senior Trump

administration officials argued that the conduct at issue—in essence, campaigning while acting

in an official capacity—was not the sort of conduct that the Hatch Act was meant to prohibit.

But the historical record shows that one of Congress’s motivations in passing the Hatch Act was

to prevent the creation of a “powerful, invincible, and perhaps corrupt political machine . . .

using the thousands or hundreds of thousands of federal employees, paid for at public expense, to

man [a political party’s] political structure and political campaigns.”

OSC therefore recounts

that historical record before analyzing the individual violations in Part III.

The Hatch Act is the culmination of efforts, dating back nearly to the country’s founding,

to limit the partisan political activity of federal employees. The underlying rationale for these

efforts is that “efficiency in Government service requires a lack of partisanship in

administration.”

Yet, historically the executive branch was staffed largely through political

patronage—i.e., employees owed their employment to the political party in power. So a conflict

of interest arose when those employees had to decide between using their power and authority

for the general public welfare or for the benefit of their patron party. The nation’s experience

with the patronage system led Congress to mandate, primarily through the enactment of laws

such as the Pendleton Act in 1883 and the Hatch Act in 1939, that such conflicts be resolved in

favor of the general public welfare and that the power, prestige, and influence that executive

branch employees wield must not be used for partisan advantage.

As early as 1801, Thomas Jefferson recognized that the party in power could use the

federal government to influence or control elections, thereby becoming impervious to the

electoral will of the people. He wrote that “interferences with elections . . . by officers of the

[federal government] will be deemed cause of removal[] because the constitutional remedy by

the elective principle, becomes nothing, if it may be smothered by the enormous patronage of

the” federal government.

In his view, executive branch interference in elections would end the

American experiment in self-government, replacing it with a system of perpetual one-party rule.

Despite the efforts of President Jefferson and others to keep partisan politics separate

from the administration of government,

the political patronage system expanded within the

executive branch. Congress attempted to rein in the patronage system with the Pendleton Civil

Service Reform Act of 1883,

which created a merit-based civil service system and the federal

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U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 565-66 (1973).

S. Rep. No. 102-278, at 2 (1992).

Letter from Thomas Jefferson to Thomas McKean (Feb. 2, 1801), available at

https://founders.archives.gov/?q=Project%3A%22Jefferson%20Papers%22%20mckean&s=1511311111&r=53.

E.g., Circular from Daniel Webster, Secretary of State (Mar. 20, 1841) (noting President Tyler’s instruction to

executive branch department heads that “partisan interference in popular elections . . . will be regarded by [Tyler] as

cause of removal”), available at https://www.presidency.ucsb.edu/documents/special-message-3446.

22 Stat. 403 (1883).

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Civil Service Commission (CSC). Civil Service Rule I stated that “no person in the Executive

civil service shall use his official authority or influence for the purpose of interfering with an

election or affecting the result thereof.”

However, even after the Pendleton Act, roughly two-

thirds of federal employees remained outside of the civil service and were not subject to Rule I.

The election of 1938 demonstrated the corrupting effect that a federal workforce largely

exempt from limitations on using its power and influence for partisan aims could have on

elections. In one egregious case an entire regional supervisory force of the Works Progress

Administration (WPA) was used to determine the political affiliation of 18,000 WPA employees.

The resulting list was handed to a political campaign, and employees not supportive of that

campaign’s candidate were fired.

Another example involved 70 individuals hired under a

federal relief program who did “no highway work at all during the period they were on the rolls

but upon reporting for work were instructed to go back to their respective precincts and canvass

them in behalf” of a partisan political campaign.

In response, in 1939, Congress passed An Act to Prevent Pernicious Political Activities,

commonly referred to as the Hatch Act.

Section nine made it unlawful for “any person

employed in the executive branch of the Federal Government, or any agency or department

thereof, to use his official authority or influence for the purpose of interfering with an election or

affecting the result thereof.”

Congress intentionally made section nine—now 5 U.S.C.

§ 7323—virtually identical to Civil Service Rule I, but, notably, expanded the prohibition to

cover essentially all executive branch employees.

In doing so, Congress aimed to further

insulate government administration from partisan politics and prevent federal employees from

creating a “powerful, invincible, and perhaps corrupt political machine” within the federal

government.

The Hatch Act does not define “official authority or influence,” but congressional debates

show it was interpreted broadly.

Senators also distinguished between actions taken in an

official capacity, which implicate the use of official authority, and those taken as a private

citizen, which do not.

And the breadth of abuses to which Congress was responding—

including creation of a taxpayer-funded campaign staff—provides additional context.

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Exec. Order No. 209 (1903).

See H.R. Rep. No. 94-444, at 10 (1975).

See Report of the Special Committee to Investigate Senatorial Campaign Expenditures and Use of Governmental

Funds in 1938, 75th Cong. 12-13 (1939).

Id. at 30.

Pub. L. No. 76-252, 53 Stat. 1147 (1939).

Id. § 9(a).

S. Rep. No. 76-221, at 2 (1939) (“Section 9 is a restatement of the law now in effect as regards civil-service

employees. It provides in almost the exact language of the civil-service rule that it shall be unlawful for any person

employed in any administrative or supervisory capacity of any agency of the Federal Government to use his official

authority for the purpose of interfering with an election or affecting the result thereof.”).

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973).

References to the phrase include that it is the “power which [an employee] would not have were it not for his

office,” 86 Cong. Rec. 2347 (1940) (statement of Sen. Hatch), and “the power that is vested in [an employee] by the

law of the land for the service of all the people,” 86 Cong. Rec. 2703 (1940) (statement of Sen. O’Mahoney).

See 86 Cong. Rec. 2705 (1940) (statement of Sen. O’Mahoney).

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Further evidence of the broad scope of the phrase “official authority or influence” comes

from CSC rulings interpreting Civil Service Rule I, which Congress in 1940 incorporated by

reference into the Hatch Act.

The CSC found the rule to prohibit employees from engaging in

partisan political activity while acting, or appearing to act, within the scope of their government

employment. For example, the CSC held that Civil Service Rule I prohibited signing, “as a

government employee,” a petition related to a candidacy for elected office.

Accordingly, the

Hatch Act has been understood to prohibit partisan political activity undertaken as a government

employee—such as by using an official title in connection with one’s political activity—which

risks implying that the government itself has a preference for one political party or candidate

over another.

In the face of subsequent challenges, the Supreme Court twice affirmed the

constitutionality of the Hatch Act,

finding that it is “a judgment made by this country over the

last century that it is in the best interest of the country, indeed essential, that federal service

should depend upon meritorious performance rather than political service, and that the political

influence of federal employees on others and on the electoral process should be limited.”

Congress has repeatedly amended the Hatch Act, but even when loosening its restrictions

Congress has maintained that employees may not engage in political activity while acting in an

official capacity.

And with the Hatch Act Reform Amendments of 1993, Congress emphasized

that political activity while on duty, in the workplace, or wearing an agency uniform—which

give at least the appearance that one is acting in an official capacity—is strictly prohibited.

All three branches of government have been united in recognizing the harm that results to

American democracy when the executive branch interferes with the electoral process. The

executive branch under President Jefferson was the first to take actions to limit such interference.

When those rules proved insufficient, Congress passed increasingly strict rules governing

executive branch employees’ participation in campaign activities. The Supreme Court then

validated their concerns by upholding the Hatch Act’s prohibitions notwithstanding that they

implicate employees’ First Amendment rights. The actions of the senior Trump administration

officials described in the next Part represent an unprecedented challenge to this foundational

principle of executive branch neutrality with respect to political parties and candidates for

partisan political office.

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Pub. L. No. 76-753, § 4, 54 Stat. 767, 771 (1940).

Letter Carriers, 413 U.S. at 589 (quoting Civil Service Commission Form 1236, Political Activity and

Assessments (Sept. 1939)).

This restriction is grounded in the idea that “it is not only important that the Government and its employees in fact

avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in

the system of representative Government is not to be eroded to a disastrous extent.” Id. at 565.

See Letter Carriers, 413 U.S. 548; United Pub. Workers of Am. v. Mitchell, 330 U.S. 75 (1947).

Letter Carriers, 413 U.S. at 556.

For example, a House of Representatives committee proposing reforms to the Hatch Act in 1975 wrote that “it is

imperative that [partisan political activities] be kept as far removed from the official duties of the President and the

Vice President as the public interest will permit.” H.R. Rep. No. 94-444, at 5 (1975).

See 139 Cong. Rec. 15,739 (1993) (statement of Sen. Glenn).

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10



PART III: PERVASIVE HATCH ACT VIOLATIONS IN THE TRUMP ADMINISTRATION

In this Part, we address the following:

 the 2020 Republican National Convention (RNC) and the unprecedented number of

Hatch Act complaints the public filed with OSC concerning the event;

 the myriad allegations of Hatch Act violations by senior Trump administration

officials;

 the legal standard required to establish a Hatch Act violation;

 OSC’s factual findings and legal conclusions with respect to the allegations; and

 the pattern of conduct by those senior Trump administration officials that led OSC to

conclude that the administration tacitly or expressly approved of them violating the

Hatch Act.

1. The 2020 Republican National Convention Generated Substantial Public Discussion

of the Hatch Act and an Unprecedented Number of Hatch Act Complaints

The RNC was, as far as OSC is aware, the first political party convention since passage

of the Hatch Act in 1939 to feature events held on White House grounds.

Though the

convention was originally scheduled to be held in Charlotte, North Carolina, logistical

considerations resulting from the coronavirus pandemic led the Republican National Committee

to move it first to Jacksonville, Florida, and then ultimately to a format featuring events from

multiple locations, including the White House. The convention was broadcast across all of the

major news media outlets and received primetime coverage on network television. The use of

such a prominent federal landmark for a high-profile and quintessentially partisan political event

generated substantial public discussion of whether hosting the RNC at the White House was

permissible under the Hatch Act and resulted in hundreds of complaints being filed with OSC

alleging that various officials within the Trump administration, including then-President Donald

J. Trump and then-Vice President Michael Pence, had violated the Hatch Act.

The complaints raise three issues. The first is whether either President Trump or Vice

President Pence violated the Hatch Act. Neither did. Pursuant to 5 U.S.C. § 7322(1), the

president and the vice president are expressly exempt from coverage under the provisions of the

Hatch Act that OSC enforces. Because neither President Trump nor Vice President Pence was

subject to any of the Hatch Act’s restrictions, neither violated that law.

The second issue is whether it was prohibited under the Hatch Act for the Republican

National Committee to hold its 2020 convention at the White House. As described in detail in

Part IV of this report, the current statutory scheme does not categorically preclude a political

party from holding events at the White House. While the Hatch Act bars most federal employees

from engaging in political activity while on duty or in the federal workplace, it does not impose

any similar restrictions upon nonfederal employees. Thus, under current law, if the president or

vice president—neither of whom is subject to the Hatch Act—authorizes a political party’s event

at the White House and the event is produced by nonfederal employees, that alone would not



In 1940 President Franklin D. Roosevelt delivered his address accepting his party’s nomination for president from

the White House, but the convention itself was held in Chicago.

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11

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violate the Hatch Act. Furthermore, as OSC said publicly during the convention, ambiguities in

existing law mean that there are certain areas of the White House and its grounds, such as the

South Lawn and the Rose Garden, in which even federal employees are not prohibited from

engaging in political activity.

Thus, while the complaints OSC received show that some

Americans apparently found the use of the White House for a political convention jarring and

inconsistent with the Hatch Act’s underlying purpose of keeping partisan political matters out of

the federal workplace, using the White House as the venue for the RNC did not violate the Hatch

Act.

The final issue is whether, apart from the legally permissible use of the White House for

the RNC, Trump administration officials otherwise violated the Hatch Act. As detailed in this

report, OSC concludes that senior Trump administration officials did violate the Hatch Act.

Some of those violations related to the convention, while others were committed during the 2020

election cycle and in furtherance of President Trump’s reelection but outside of the convention

context. The number of violations demonstrates how OSC’s Hatch Act enforcement tools were

inadequate to deter senior administration officials from breaking the law.

Indeed, the 2020 election revealed that, at least with respect to an administration’s senior-

most officials, the Hatch Act is only as effective as the White House decides it will be. Where,

as happened here, the White House chooses to ignore the Hatch Act’s requirements, then the

American public is left with no protection against senior administration officials using their

official authority for partisan political gain in violation of the law. This is the case because

OSC’s usual enforcement tool—prosecuting alleged violations before the Merit Systems

Protection Board (MSPB)—is not available with respect to Senate-confirmed presidential

appointees or, in OSC’s opinion, commissioned officers within the White House. Rather, for

such employees, OSC submits a report describing the violation to the president for appropriate

disciplinary action in accordance with 5 U.S.C. § 1215(b). OSC has no role in the disciplinary

process beyond issuing such a report. President Trump’s failure to ensure compliance by his

senior officials allowed for, as one federal court said of a senior administration official, members

of the administration to “violate the Hatch Act with seeming impunity . . . .”

The challenges

that this presented for OSC’s Hatch Act enforcement are detailed in Part IV.

OSC’s position with respect to commissioned officers is grounded in constitutional

considerations.

Some have suggested that OSC’s position is incorrect and that OSC should

attempt to seek discipline against commissioned officers before the MSPB notwithstanding those

concerns. One organization even unsuccessfully sued OSC seeking to compel the agency to

initiate disciplinary proceedings against a commissioned officer. But even if OSC were

incorrect, and it could seek disciplinary action against commissioned officers before the MSPB,

that would not have led to a different outcome here for the simple reason that the MSPB did not

have a quorum at any point during the Trump administration. Accordingly, OSC’s public reports

to the president about Hatch Act violations by commissioned officers are—as both a practical



See OSC Clarifies its Hatch Act Role in Light of Republican National Convention (Aug. 26, 2020),

https://osc.gov/News/Pages/20-27-OSC-Hatch-Act-RNC.aspx.

Citizens for Responsibility and Ethics in Washington v. U.S. Office of Special Counsel, 480 F. Supp. 3d 118, 134

(D.D.C. 2020).

See infra Part IV(1).

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12

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matter and considering OSC’s legal determination regarding the MSPB’s jurisdiction—the most

effective enforcement tool available to the agency.

The Trump administration officials described in this Part, who OSC concludes violated

the Hatch Act, have all left government service. Accordingly, there is no potential for any

disciplinary action. OSC is nevertheless issuing this report in order to educate employees about

Hatch Act-prohibited activities, highlight the enforcement challenges that OSC confronted in

investigating the violations, and deter those who would seek to engage in similar violations in the

future.

2. OSC Received Numerous Complaints Alleging that Senior Trump Administration

Officials Violated the Hatch Act in the Months Prior to the 2020 Election

OSC received over 100 complaints alleging that the senior Trump administration officials

described in this Part violated the Hatch Act by using their official authority or influence to

interfere with or affect an election. In essence, each allegation was that the subject official

campaigned on behalf of President Trump’s reelection while acting within the scope of his or her

official duties. In so doing, the subject officials allegedly violated 5 U.S.C. § 7323(a)(1), which

prohibits an employee from using his or her official authority or influence for the purpose of

interfering with or affecting the result of an election. Pursuant to this prohibition, which is

described more fully in the next section, an employee may not support or oppose a candidate for

partisan political office while acting in an official capacity or otherwise use the employee’s

official authority in connection with the employee’s political activity.

Specifically, the complaints alleged that the officials listed below violated the Hatch Act

in 2020,

often during official interviews, i.e., interviews given in an official capacity. This list

does not include allegations that OSC was unable to corroborate or that, even if true, did not

constitute a violation of the Hatch Act.

 Then-Secretary of Energy Dan Brouillette,

by promoting President Trump’s

reelection campaign during an official interview on the Brian Kilmeade Show on

October 26;

 Then-Senior Counselor to the President Kellyanne Conway,

by promoting President

Trump’s reelection campaign during official interviews on Fox News Channel (FNC)

on August 12 and 18;

 Then-White House Director of Strategic Communications Alyssa Farah,

promoting President Trump’s reelection campaign during an official interview on

FNC on October 9;



All date references are to the year 2020 unless expressly noted otherwise.

For example, OSC received hundreds of complaints alleging that President Trump and Vice President Pence

violated the Hatch Act, but neither is subject to the provisions of the Hatch Act that OSC enforces. See supra Part

III(1).

OSC File No. HA-21-000094.

OSC File No. HA-19-005052.

OSC File No. HA-21-000054.



13

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 Then-U.S. Ambassador to Israel David Friedman,

by promoting President Trump’s

reelection campaign during an official interview with Al-Ain on October 4;

 Then-Senior Advisor to the President Jared Kushner,

by promoting President

Trump’s reelection campaign during an official interview on CNN on August 23;

 Then-White House Press Secretary Kayleigh McEnany,

by promoting President

Trump’s reelection campaign during an official interview on FNC on August 20 and

during official remarks to the press on October 23;

 Then-White House Chief of Staff Mark Meadows,

by promoting President Trump’s

reelection during official interviews on FNC on July 6 and with POLITICO on

August 26, and by promoting the campaign of congressional candidate Madison

Cawthorn during an official interview on FNC on July 6;

 Then-Senior Advisor to the President for Policy Stephen Miller,

by promoting

President Trump’s reelection campaign during an official interview on FNC on July

31;

 Then-White House Deputy Press Secretary Brian Morgenstern,

by promoting

President Trump’s reelection during official interviews on One America News

Network (OAN) on October 9 and 27;

 Then-National Security Advisor Robert O’Brien,

by promoting President Trump’s

reelection during an official interview on the Hugh Hewitt Show on June 25;

 Then-Secretary of State Michael Pompeo,

by changing U.S. Department of State

policy to allow himself to speak in support of President Trump’s reelection at the

RNC, and then by using his official authority when giving that speech;

 Then-Chief of Staff to the Vice President Marc Short,

by promoting President

Trump’s reelection during official interviews on Fox Business on June 22 and August

13, and also during an official interview with the group Campus Reform on August

27; and

 Then-Acting Secretary of Homeland Security Chad Wolf and other Trump

administration officials,

by presiding over or orchestrating a naturalization

ceremony for the purpose of creating content for the RNC.



OSC File No. HA-21-000055.

OSC File No. HA-20-000449.

OSC File No. HA-20-000280.

OSC File No. HA-20-000302.

OSC File No. HA-20-000318.

OSC File No. HA-21-000091.

OSC File No. HA-20-000281.

OSC File No. HA-20-000376.

OSC File No. HA-20-000202.

OSC File No. HA-20-000395.

OSC also received complaints against Advisor to the President Ivanka Trump, HA-19-004116, alleging that she

violated the Hatch Act by engaging in political activity on a social media account. Because the complaints relate to

activity on social media, an issue which has raised substantial enforcement challenges for OSC, those complaints are

addressed along with other enforcement challenges in Part IV.

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14

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3. Legal Standard Required to Establish a Hatch Act Violation

To prove a Hatch Act violation, OSC must establish by a preponderance of the evidence

that an employee covered by the Hatch Act engaged in prohibited political activity. As relevant

to the incidents described in this report, the Hatch Act prohibits covered employees from using

their official authority or influence for the purpose of interfering with or affecting the result of an

election. The relevant statutory citations are 5 U.S.C. § 7322, which defines the employees

subject to the Hatch Act, and 5 U.S.C. § 7323, which states the applicable prohibition.

A. The employees described in this Part were all covered by the Hatch Act.

Section 7322 of Title 5 of the U.S. Code defines the employees subject to the Hatch Act:

(1) “employee” means any individual, other than the President and the Vice President,

employed or holding office in—

(A) an Executive agency other than the Government Accountability Office; or

(B) a position within the competitive service which is not in an Executive agency;

but does not include a member of the uniformed services or an individual employed

or holding office in the government of the District of Columbia.

This definition encompasses virtually all federal civilian executive branch employees.

For purposes of the Hatch Act, the White House Office (WHO) is an “Executive agency” as that

term is used in § 7322(1)(A).

All the officials described in this report were employees of WHO

or another executive agency other than the Government Accountability Office. All were

therefore subject to the Hatch Act.

B. It is a prohibited use of official authority for an employee to support or oppose a

candidate for partisan political office while acting in an official capacity.

Section 7323(a) of Title 5 of the U.S. Code states the prohibition relevant to this Part:

an employee may take an active part in political management or in political

campaigns, except an employee may not—

(1) use his official authority or influence for the purpose of interfering with or

affecting the result of an election.



This is the burden of proof that OSC must meet in Hatch Act cases prosecuted before the Merit Systems

Protection Board (MSPB). See Special Counsel v. Purnell, 37 M.S.P.R. 184, 188 (1988).

See 27 U.S. Op. Off. Legal Counsel 118, 119 (2003) (reaffirming an earlier Office of Legal Counsel conclusion

that the Hatch Act applies to employees in the White House Office) (citing 19 U.S. Op. Off. Legal Counsel 103,

106-07 (1995)). The Hatch Act exemption allowing employees “paid from an appropriation for the Executive

Office of the President [EOP],” 5 U.S.C. § 7324(b)(2)(B)(i), to engage in limited political activity while on duty or

in the federal workplace would be meaningless if WHO employees, who are part of the EOP, were not otherwise

subject to the law. Concluding, as the Office of Legal Counsel has, that WHO employees are subject to the Hatch

Act avoids “highly anomalous” results, 27 U.S. Op. Off. Legal Counsel at 119, and is consistent with that cardinal

principle of statutory construction to give effect to the words of a statute. See TRW Inc. v. Andrews, 534 U.S. 19,

31 (2001).

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15

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This prohibition applies without exception to all executive branch employees covered under the

Hatch Act.

The attendant Hatch Act regulation gives examples of the types of activity this

prohibition encompasses.

For example, the regulation makes clear that it is a prohibited use of

official authority for employees to use their official title or position while participating in

political activity.

“Political activity” is defined as activity directed toward the success or

failure of a political party, partisan political group, or candidate for partisan political office.

The prohibited “political activity” described in this report can be understood as campaign-related

activity. Because of the Hatch Act, the president may not use the power of the executive

branch—namely, its senior officials—to campaign for the election of any candidate, including an

incumbent president and vice president. That task falls to political parties, partisan political

groups, and the candidates themselves. Thus, federal employees may not weigh in on political

campaigns or promote or oppose candidates while speaking, writing, or otherwise acting in an

official capacity.

Both Article III courts and the Merit Systems Protection Board (MSPB) have interpreted

“political activity” as encompassing far more than just express advocacy for the electoral success

or failure of a candidate. In Burrus v. Vegliante, members of a federal employee union

displayed, in their workplace, posters comparing the positions and voting records of two

candidates for president.

The posters did not explicitly recommend that viewers support either

candidate, but rather merely “suggested that [one slate] held positions more favorable to the

interests of postal workers than the [other slate].”

The Second Circuit rejected the idea that the

poster was not political activity, finding that while it “purported to present only factual

information, the [union did] not seriously dispute that it was intended to generate support for” a

candidate.

Accordingly, making statements of fact, when intended to generate electoral

support for or opposition to a candidate, is considered political activity under the Hatch Act.



A separate provision of the Hatch Act prohibits employees from engaging in political activity while on duty or in

the federal workplace. See 5 U.S.C. § 7324(a)(1)-(2). However, certain Senate-confirmed presidential appointees

and commissioned officers within the EOP are exempt from those prohibitions in § 7324(a) and may engage in

limited political activity not otherwise prohibited by the Hatch Act while on duty or in the federal workplace. See 5

U.S.C. § 7324(b). This “7324(b) exemption” exists because the senior-level employees to whom it applies are

presumed to be always on duty. Thus, a rule prohibiting those employees from engaging in political activity while

“on duty” would effectively bar them from engaging in political activity at any time. To avoid imposing such a

broad restriction, Congress expressly exempted this limited category of employees from the restrictions in § 7324.

See generally H.R. Rep. No. 103-16 (1993). All the employees described in this Part qualify for that exemption.

While most of the violations described herein took place while employees were on duty or in the federal workplace,

OSC has no evidence that any one employee’s on-duty political activity was so pervasive as to constitute a violation

of § 7324. Accordingly, this Part focuses exclusively on the use of official authority prohibition, for which there are

no exemptions for Senate-confirmed presidential appointees or EOP commissioned officers.

See 5 C.F.R. § 734.302.

See 5 C.F.R. § 734.302(b)(1).

5 C.F.R. § 734.101. This definition differs from the common understanding of an administration’s “political”

work, which consists of persuading sitting members of Congress to support necessary legislation, persuading the

American public of the importance of the administration’s proposed policies, and arguing against policies and

legislation with which it disagrees.

Burrus v. Vegliante, 247 F. Supp. 2d 372, 373 (S.D.N.Y. 2002), rev’d, 336 F.3d 82 (2d Cir. 2003).

Id. at 373-74.

336 F.3d at 84.

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16

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In Special Counsel v. Malone, the MSPB determined that an employee violated the use of

official authority prohibition when he “acted in his official capacity to further a partisan political

campaign.”

The violation occurred when he informed people doing business with his agency

of an upcoming partisan fundraiser. The employee did not solicit attendance or political

contributions; rather, he provided factual information about the existence of the event.

Nevertheless, the employee violated the Hatch Act because he “intended to promote the

fundraiser for political purposes.”

Similarly, in Special Counsel v. DePaolo, an MSPB judge held that an employee violated

the use of official authority prohibition when she “tout[ed],” “advertised,” and “advanced [a

candidate’s] campaign promise” while acting in the scope of her official duties—presiding over a

deportation hearing.

That campaign promise related to changing the immigration law at issue

in the case. The MSPB judge found that “advancing [the candidate’s] campaign promise to

change the law during a hearing where that law negatively affected a party . . . was an attempt to

encourage votes for [the candidate] and [a political party].”

The employee thus engaged in

political activity in violation of the Hatch Act even though she did not expressly instruct anyone

to vote for or against a candidate and was speaking about a proposed policy change.

The rule that emerges from these cases is clear: a federal employee acting in an official

capacity may not make statements or take actions that are akin to campaigning for or against a

candidate for partisan political office or otherwise promote or disparage that candidate’s

campaign. Those prohibited statements can take the form of suggestively comparing candidates’

records and positions, as in Burrus; providing factual information for the purpose of promoting a

campaign, as in Malone; or advancing a candidate’s campaign promise, as in DePaolo. This rule

is consistent with at least one purpose of the Hatch Act—to prevent using federal employees as a

taxpayer-funded campaign staff.

While distinguishing permissible official activity from prohibited campaign activity can

be challenging, making certain types of statements—such as attacking the campaign of a

candidate for partisan political office, explaining why voters should support a particular

candidate, comparing campaign proposals, and forecasting what would happen if certain

candidates are elected—is unquestionably political activity, and officials representing the U.S.

government are prohibited from making such comments while engaged in official duties.

Doing so risks giving the impression that the government itself has a preference for one

candidate over another, the pernicious possibility of which was one of the principal motivations

for passage of the Hatch Act in the first place.

Accordingly, OSC considers such statements



84 M.S.P.R. 342, 363 (1999).

Id. at 365.

Id.

MSPB Docket No. CB-1216-18-0016-T-1, at 11, 21 (Sept. 13, 2019).

Id. at 22.

See U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 565-66 (1973).

This is not to say that all election-related discussions are prohibited. Numerous agencies, including OSC, have

responsibilities that inherently require them to engage with electoral issues.

See Letter Carriers, 413 U.S. at 565 (“it is not only important that the Government and its employees in fact avoid

practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the

system of representative Government is not to be eroded to a disastrous extent”).



17

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made in an official capacity to be political activity prohibited by § 7323. And while it likely

would not have violated the Hatch Act if the officials made the statements described in the

following section when speaking in a personal capacity, each did so while speaking in an official

capacity as a Trump administration official.

4. The Subject Officials Violated the Hatch Act by Campaigning on Behalf of

President Trump’s Reelection While Acting Within the Scope of Their Official

Duties

OSC concludes that the 13 senior Trump administration officials listed in section 2 of this

Part violated the Hatch Act by campaigning for President Trump’s reelection while acting within

the scope of their official duties. The individual violations fell broadly within two categories:

eleven officials committed violations during official interviews or media appearances, and two

officials committed violations in connection with the RNC.

Notably, even if the subjects were still in government service, not all of these violations

necessarily would have resulted in OSC sending the president a report for disciplinary action.

Some were less egregious than others and, consistent with OSC’s long-established practice,

likely would have resulted in OSC issuing a letter warning the official not to violate the Hatch

Act in the future. OSC is nevertheless including them here because they are all violations,

regardless of their magnitude, and they illustrate the larger pattern of violations by senior

officials across the Trump administration that is described in section 5 of this Part. That pattern

demonstrates that the Trump administration tacitly or expressly approved of using the power of

the executive branch to assist President Trump’s reelection.

A. Eleven senior Trump administration officials violated the Hatch Act during official

interviews or media appearances.

Eleven Trump administration officials— Dan Brouillette, Kellyanne Conway, Alyssa

Farah, David Friedman, Jared Kushner, Kayleigh McEnany, Mark Meadows, Stephen Miller,

Brian Morgenstern, Robert O’Brien, and Marc Short—violated the Hatch Act over the course of

18 different official interviews or media appearances.

In each case, the subject official was

identified by their official title, discussed administration policies and priorities related to their

official duties, and/or spoke from the White House grounds.

Accordingly, the subject officials

were acting in an official capacity when making the statements described in this subsection.

Furthermore, the statements were directed toward the success of President Trump’s

reelection campaign and/or the failure of then-candidate Joseph R. Biden, Jr.’s presidential

campaign. The officials listed here compared how candidates performed or would perform in

debates, questioned candidates’ qualifications, compared campaign proposals, sometimes

mocked candidate Biden and his campaign, and forecast what would happen if certain candidates



The fact that OSC has specifically identified only these 18 official interviews and media appearances is not

intended to suggest that the subject officials may not have violated the Hatch Act in other official interviews or

appearances.

Furthermore, none of the subject officials argued that they were not speaking in an official capacity when making

the statements.

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18

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were elected. In short, they made campaign statements. OSC therefore has concluded that these

11 Trump administration officials violated 5 U.S.C. § 7323(a)(1) by campaigning on behalf of

President Trump’s reelection during official interviews or media appearances.

i. Factual Findings

a. Secretary of Energy Dan Brouillette

Secretary of Energy Dan Brouillette appeared on the Brian Kilmeade Show in his official

capacity on October 26. The segment began with the host playing a clip from the October 22

presidential debate between President Trump and candidate Biden, in which candidate Biden

said that if elected he would transition away from the oil industry and replace it with renewable

energy.

After the host asked, “Is it a big deal that Joe Biden wants to ban [fracking] and then,

upon further review, says ‘just ban it on federal land?’” Secretary Brouillette argued against

candidate Biden’s purported proposal, said that Americans should question whether those

purported proposals were something they should support, and told listeners how they should

evaluate candidate Biden’s statements:

Oh it’s an enormous deal. What it would do is move us back to dependence on

foreign nations. It moves us back into a state of dependence on the Middle East.

And it’s really a fundamental question, Brian, that Americans need to ask

themselves—is that where we want to go back? Is that what we want to go back

to? And, you know, the amount of jobs lost would be enormous. . . . [T]he past

administration, they nearly killed coal. They did everything they possibly could

to kill coal. So when they say that they want to kill oil and gas, a word to the

wise, believe them.

The host later said, “[T]he energy stocks are taking a pounding now. There’s a fear that

[Biden] could win, and no one’s buying that the former vice president is going to leave fossil

fuels alone, that he was misinterpreted.” Secretary Brouillette responded by amplifying the

host’s concerns that candidate Biden would not “leave fossil fuels alone” if he were to win the

election:

No one should buy it. As I said earlier, look, you know, when they say they will

kill oil and gas, they mean it. They’ve done it with coal here in the United States,

and no one should misquote them, no one should ignore their words. It’s very,

very important. . . .

b. Senior Counselor to the President Kellyanne Conway

Ms. Conway appeared on FNC in her official capacity on August 12 and 18. During the

August 12 interview, Ms. Conway made the following comments critical of candidate Biden’s



Biden’s fracking plan would move the US back to dependence on Middle East: Brouillette, Brian Kilmeade Show

(Oct. 26, 2020), at 0:00-0:23, https://video.foxbusiness.com/v/6204747806001#sp=show-clips.

Id. at 2:45-3:24.

Id. at 6:54-7:10.

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19



selection of Kamala Harris as his running mate and questioned then-candidate Kamala Harris’s

qualifications to serve as vice president:

She’s a safe and unsurprising pick, in my view. . . . I think we can do two things

as a nation. We can stop and applaud when history is made in our fragile young

democracy. And then we can also call into question why perhaps somebody

should not be the vice president or the president of the United States.

After then describing her experience as President Trump’s campaign manager, Ms. Conway

returned to the topic of candidate Harris’s selection and forecast how her election would be

detrimental for the United States:

In the case of Kamala Harris, it’ll be very easy to say somebody who seems, who

presents, as progressive and “forward-looking” could actually bring our nation

backward on many things that matter to America. So by way of quick example,

backward on all the economic gains we had. She would raise the corporate tax

rate from 21% to 35%, they would do away with all the gains we’ve had as a

nation through our Paycheck Protection Program and Tax Cuts and Jobs Act.

Why is that important? Because so many Americans benefitted from those simple

measures. Our deregulation agenda. . . .

Moments later, Ms. Conway continued her critique of candidate Harris:

These are tough jobs. And we should look at the qualifications for the job. This

is a woman who’s for abortion in the ninth month, she’s against the Second

Amendment, she’s against parts of the First Amendment, frankly, she will raise

your taxes, she will put our regulations back, she’s been terrible on criminal

justice, and may I just say, Sandra, as a last point—the Democrats rejected

her. . . .

During the August 18 interview, Ms. Conway attacked both the Democratic Party and its

presidential nominee, candidate Biden. Of the party, she said its convention would be a “swamp

reunion”

and contrasted it with the upcoming Republican convention, which she characterized

as the “people’s convention.”

She also said that the Democratic convention showed that the

“Democratic Party itself has no confidence in the competence of their nominee, Joe Biden,”



Conway on Joe Biden’s ‘safe’ VP pick Kamala Harris: Democrat voters already ‘rejected her’, America’s

Newsroom (Aug. 12, 2020), at 0:51-1:12, https://www.foxnews.com/politics/kamala-harris-biden-kellyanne-

conway.amp.

Id. at 1:45-2:20.

Id. at 3:18-3:40, https://www.foxnews.com/politics/kamala-harris-biden-kellyanne-conway.amp.

Conway claims DNC speakers attacking Trump to distract from ‘feckless, reckless and cantankerous’ Biden,

Hannity (Aug. 18, 2020), at 0:59, https://www.foxnews.com/politics/kellyanne-conway-dnc-biden-feckless-reckless-

cantankerous.

Id. at 4:28.

Id. at 1:44-1:50.

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20



whom Ms. Conway said had “done less in 47 years in Washington than Donald Trump has done

in 47 months in Washington.”

c. White House Director of Strategic Communications Alyssa Farah

Ms. Farah appeared on FNC in her official capacity on October 9. During that interview,

Ms. Farah said of the two presidential candidates that:

I can’t think of a starker contrast of two candidates against each other than even

while sick with COVID the president’s got boundless energy and is taking

questions and being as transparent as possible on his positions and the fact that we

still don’t have basic answers on policy from the Joe Biden campaign.

The host then asked, “What about the concern the campaign has for the possibility of only

getting back on stage one time before the American people vote?” Ms. Farah responded with the

“White House perspective” on the campaign event:

Speaking from the White House perspective, we think it’s incredibly important

that we draw out the true policy distinctions between what this president has

accomplished in four years and what his opponent has failed to accomplish in 47

years, and the best way to do that is to have both of them live on stage

together. . . .

d. U.S. Ambassador to Israel David Friedman

U.S. Ambassador to Israel David Friedman gave an interview in his official capacity on

October 4 during which he told viewers that U.S. policy toward Iran was “the most consequential

issue of the election.” He then suggested that a Biden/Harris victory might lead to an increase in

Iran’s “malign activity” or put that country on the pathway to obtaining a nuclear weapon:

I think this may be the most consequential issue of the election. Maybe entirely

the most consequential issue, because as you know Joe Biden was part of the

Obama administration which negotiated and implemented the Iran deal . . .

[which] created a pathway for Iran to gain a nuclear weapon [and] did nothing to

restrain Iran from its malign activity. . . . So we think right now we’re in a very

good place in terms of the sanctions that we have imposed upon Iran. If we

continue on this path, we think Iran will ultimately have no choice but to end its

malign activity. A new administration, especially if it consists of people who

were part of the Obama administration, I think it presents a real risk that those

gains that we have fought so hard for, together with our allies in the Gulf, our

allies in Israel, we’ve worked really hard to get Iran, I think, to a much better



Id. at 2:10-2:15.

Bill Hemmer Reports (@HemmerReports), Twitter (Oct. 9, 2020 3:46 PM), at 0:25-0:44,

https://twitter.com/HemmerReports/status/1314648374281408513.

Id. at 2:17-2:35.

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21



place. I’d hate to think that a new administration would undermine that, but

regrettably if Biden wins I think they might. . . .

e. Senior Advisor to the President Jared Kushner

Mr. Kushner appeared on CNN in his official capacity on August 23. In that interview,

Mr. Kushner said the Democratic convention offered a “very dark vision” for the country and

little “by way of policy or solutions,” while also previewing the Republican campaign message:

I think these conventions are a real kickoff. We saw the Democrats last week

have a very dark vision for America. You were talking about the great diversity

earlier of their party, but a lot of those Republicans are not—I mean, those are

people who are Washington elites, a lot of insiders, people who have, you know,

made their lives and their careers off of Washington. President Trump represents

the American people. He’s the outsider president. And I think you’re going to

see a very hopeful vision for America that he’s going to be unleashing. You’re

going to see a real diversity of the Republican Party that he has built. You’re

going to see it’s going to be different than how the media tells you. And unlike

the Democrats last week where there was a lot of complaints, they didn’t offer

much by way of policy or solutions, President Trump will be laying out, you

know, real policies, real visions, real solutions for how he brings our country back

and makes it stronger than ever before. . . .

f. White House Press Secretary Kayleigh McEnany

Ms. McEnany appeared on FNC in her official capacity on August 20.

During that

interview she was asked about the Democratic convention and some of the attacks against

President Trump. Ms. McEnany responded by defending the president but then went on to

compare the two candidates’ campaign strategies:

It’s a baseless attack. . . . And I have watched [President Trump] be emotional and

show empathy and show great character that is exactly the opposite of what

President Obama has said. But what this president is doing—he doesn’t hide in

basements. He goes out and talks to the American people. He’s travelled more

than 6,000 miles this week, he’ll be out to Pennsylvania today. He looks the

American people in the eye. He talks directly to them while Democrats just have

a bunch of politicians lying amongst themselves.



Al-Ain (Oct. 4, 2020), at 0:03-1:30, https://twitter.com/alain_4u/status/1312691430142377984.

Fareed Zakaria GPS (Aug. 23, 2020), http://transcripts.cnn.com/TRANSCRIPTS/2008/23/fzgps.01.html.

Ms. McEnany also appeared on television during the 2020 election cycle in her capacity as a Trump campaign

official, which was permissible under the Hatch Act. The interviews described in this report, however, are all ones

that she gave in her capacity as the White House Press Secretary and not as a campaign spokesperson.

Kayleigh McEnany reacts to DNC speeches: Obama failed this country, Trump reversed it, America’s Newsroom

(Aug. 20, 2020), at 2:20-2:58, https://video.foxnews.com/v/6182923723001#sp=show-clips.

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22



On October 23, while answering questions from reporters on White House grounds,

Ms. McEnany made the case for President Trump’s reelection and questioned whether candidate

Biden would fight for the American people if elected:

Look, this is the most important election in American history, because what’s at

stake in this election are jobs, the economy, recovering from COVID. [President

Trump] believes he’s the best person to do that. He thinks he has a four-year

proven track record of that. Eleven days out from an election, the American

people deserve to hear from their leaders, and it’s very interesting that you’ve had

the other candidate been sequestered away for five days. President Trump’s been

out and about, and I think if you’re going to not fight for the vote of the American

people, I don’t think you’re going to fight for the American people as president.

g. White House Chief of Staff Mark Meadows

Mr. Meadows gave three interviews in his official capacity during which he campaigned

for President Trump’s reelection or, in one case, for the election of Madison Cawthorn, who at

the time was a candidate for Mr. Meadows’s former congressional seat in North Carolina. On

July 6, Mr. Meadows appeared on the FNC program Fox & Friends.

One of the hosts gave a

brief biography of Mr. Cawthorn, said that he was “ready for the job,” and asked Mr. Meadows

what he expected would happen in the upcoming election.

Rather than pivot from answering a

question about a candidate for partisan political office, Mr. Meadows instead responded by

saying, “Well, Madison will be a great member of Congress. . . . Obviously he’ll be a great

member of Congress.”

Mr. Meadows went on to say that “the people of Western North

Carolina have rallied behind him, will continue to do so, and in November we will keep that seat.

But not only that seat, we will pick up additional seats because it’s time that Congress starts

getting things done and helping this president instead of being an obstructionist.”

Mr. Meadows then gave two interviews in which he discussed President Trump’s

campaign strategy and attacked candidate Biden. The first was on the FNC program Hannity

on July 6, and the second was on the POLITICO program Plug In With Playbook on August 26.

During the Hannity interview, after the host mentioned a speech by President Trump,

Mr. Meadows said the following:

Not only was it a historic speech, but he laid out really the difference: Are we



Kayleigh McEnany Speaks to Reporters at White House, C-SPAN, at 6:11-6:44 (Oct. 23, 2020), https://www.c-

span.org/video/?477281-1/kayleigh-mcenany-speaks-reporters-white-house.

Mark Meadows previews Trump’s upcoming rally in New Hampshire, Fox & Friends (July 6, 2020),

https://www.youtube.com/watch?v=YCjWsT3-M0I.

Id. at 10:40.

Id. at 10:52-11:04.

Id. at 11:08-11:24.

Mark Meadows: President Trump is the only thing standing between a mob and the American people, Hannity

(July 6, 2020), https://www.foxnews.com/transcript/mark-meadows-president-trump-is-the-only-thing-standing-

between-a-mob-and-the-american-people.

Plug In With Playbook Interview with White House Chief of Staff Mark Meadows, POLITICO (Aug. 26, 2020),

https://www.politico.com/live-events/2020/08/26/plug-in-with-playbook-interview-with-white-house-chief-of-staff-

mark-meadows-000968.



23



going to be for anarchy, or are we going to be for the rule of law and making sure

that American citizens feel safe once again in their home? This president is

willing to do that. Where is Joe Biden? In his basement. You know, it’s

amazing. We’ve seen Joe Biden for 40 years talk a good game—but we’ve seen

no results.

And in the Plug In With Playbook interview Mr. Meadows was asked what President Trump

could do in the next 69 days to win the election. He responded by describing the Trump

campaign’s strategy through election day:

Well I think it’s not just what he does over the next 69 days—and so let me just

be clear, I’m going to talk in my personal capacity as we talk about some of these

things so that we don’t get everybody tweeting at me that I’m violating the Hatch

Act with the two of you.

So from a political standpoint, if I put on my political

hat, here’s what I see is, it’s not just what he’s going to do in the next 69 days, but

it’s what he’s building on from the three and a half years prior to that. But it’s

taking the next 69 days, focusing on what we’ve accomplished, but then what are

we going to do next. And it’s taking it to literally five different states, Wisconsin

is one of those, North Carolina is one of those, Florida is another, Arizona and

Pennsylvania. If we look at those states and making sure that we take a message,

not only about jobs, but also about how we’re going to set a different agenda

between this president and candidate Joe Biden. Because really right now the

contrast is still not being made. You know, it’s, the only contrast that’s being

talked about is that Joe Biden has been a nice guy for 47 years and Donald Trump

has not been in the last four years. And so if we look at that, let’s look at the

policies that really matter, that’s what we’re going to try to focus on. It’s about

hitting those individuals who are real concerned about their job but also about

what the next four years might be all about for them.

h. Senior Advisor to the President for Policy Stephen Miller

Mr. Miller appeared on FNC in his official capacity on July 31. During that interview, he

mocked candidate Biden as being under the control of “23-year-old” campaign staff:

As you know, Joe Biden is stuck in a basement somewhere and he just emerges

every now and again and somebody hands him a notecard and he says whatever



Hannity, at 3:21-3:45.

OSC previously has advised that officials cannot “switch hats” during an official interview and then engage in

political activity under the guise that they are now speaking in a personal capacity. See Report of Prohibited

Political Activity Under the Hatch Act, OSC File No. HA-16-3113 (Julián Castro) (June 24, 2016) (former Secretary

of Housing and Urban Development Julián Castro violated the Hatch Act by engaging in political activity during an

official interview even though he prefaced the political comments by saying “now taking off my HUD hat for a

second and just speaking individually”). Because Mr. Meadows gave this interview in his official capacity, he was

prohibited from engaging in political activity at any point during the interview.

Plug In With Playbook, at 7:06-8:43.



24



his 23-year-old staffer tells him to say and then he dutifully disappears to be seen

a week later. . . .

i. White House Deputy Press Secretary Brian Morgenstern

Mr. Morgenstern appeared on OAN in his official capacity on October 9 and 27. During

the October 9 interview, he said of the presidential debates:

The Biden campaign’s resistant [to a third debate] of course because the Biden

campaign doesn’t want to have him in person debating with the president.

They’ve been trying to weasel out of this for weeks. So when the commission,

you know, tried to unilaterally change formats you know the Trump campaign

and the White House are not going to be in favor of that because the president is

strong in in-person debates and gets Vice President Biden off-balance and off his

guard, and that’s important for the American people to see who’s going to be the

strong leader representing them for the next four years. . . .

After speaking about President Trump’s relative strength during in-person campaign debates,

Mr. Morgenstern then described the contrast between the two campaigns:

[T]hat contrast is critically important, the economic messages on job creation

from President Trump, the record on judicial appointments, frankly the record on

pandemic management between how President Trump has mobilized the entire

country versus how Vice President Biden botched the swine flu handling. I mean,

there couldn’t be more contrast. Law and order, of course, the president talks

about so much and is so important.

Later in the interview, Mr. Morgenstern continued his comparisons of President Trump and

candidate Biden:

I mean look at the vice president’s record on race. His record on law and order is

abysmal. They are going to end fracking, even though they now won’t admit it.

Even though they said it just, you know, weeks ago. . . .

And during the October 27 interview, he described President Trump’s upcoming campaign

strategy:

It is going to be multiple events every day, the president is going to visit with the

American people, with his classic sense of humor, and he is going to remind them

that one side is for freedom. It is for economic growth. It is for job creation. It’s



Stephen Miller: Nobody who mails in a ballot has their identity confirmed, Fox & Friends (July 31, 2020), at

3:25-3:40, https://video.foxnews.com/v/6176997244001#sp=show-clips.

Dan Ball Interview With White House Deputy Press Secretary, Brian Morgenstern, Real America with Dan Ball

(Oct. 9, 2020), at 5:38-6:09, https://www.youtube.com/watch?app=desktop&v=eFz3GrETdec.

Id. at 6:28-6:53.

Id. at 9:00-9:11.

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25



for lower taxes, deregulation. It is for better trade deals. It is for more peace

deals and less war. It is for price transparency and lower health care costs. The

other side is offering riots. They are offering court packing. They are offering

the 25th Amendment to try to remove the president. They are offering one of the

most radical climate change agendas, job-killing agendas, free speech stifling

agendas maybe we have ever seen in our entire history. And so the choice could

not be starker. And here, as you noted, we have one candidate fighting for every

vote, visiting every swing state multiple times, and another one hiding away.

Because they know that the more America sees of their ticket, the less they like

them.

j. National Security Advisor Robert O’Brien

Mr. O’Brien appeared on The Hugh Hewitt Show in his official capacity on June 25.

During that interview, he was asked how a Biden victory would impact policy towards China.

Rather than answer a question nominally about policy matters, Mr. O’Brien instead argued for

President Trump’s reelection:

I expect the president to be reelected and reelected overwhelmingly. . . . I think

the president’s going to come out on top. The American people see the leadership

that he’s providing not just with respect to China, they saw him build the greatest

economy in the history of the world. We took a very bad hit because of this virus

that came from China. But who do you want to turn to to rebuild the economy—

the guy who’s proven he can do it, President Trump, or somebody who’s been in

Washington for 40 years? So I think the president’s going to be reelected, and I

think the American people are going to rally around him.

k. Chief of Staff to the Vice President Marc Short

Mr. Short gave three interviews in his official capacity during which he engaged in

political activity. During a June 22 appearance on Fox Business, Mr. Short said:

I think that Donald Trump was elected in many cases because Hilary Clinton

represented the establishment. Joe Biden was elected to Congress in 1972. 1972,

he’s been in Washington, DC. I think the reality is this president has begun to

shake up that establishment order, he’s made changes, and Joe Biden continued to

support appeasement with China. This president has a different answer. This

president lowered taxes, this president reduced regulations. Joe Biden continues

to stand for the failed policies of the left, and if he’s done anything to modernize



Dan Ball Interview W/ White House Deputy Press Secretary, Brian Morgenstern, Real America with Dan Ball

(Oct. 27, 2020), at 7:55-9:00, https://www.youtube.com/watch?app=desktop&v=49lgOqi90fo.

NSA Chief O’Brien Applauds Decision Ordering Dismissal Of Charges Against His Predecessor Gen. Flynn, The

Hugh Hewitt Show (June 25, 2020), at 8:28-9:16, https://www.youtube.com/watch?v=09-xa6E3Zkw.



26



his policies it’s to listen to AOC on the environment and Ilhan Omar on

policing.

100

Elsewhere in that interview, Mr. Short said, “[T]here are legitimate questions that Vice President

Biden is yet to face media in over 80 days and seems trapped inside his basement at the

moment.”

101

During an August 14 appearance on Fox Business, Mr. Short was asked about candidate

Harris and answered:

Well, you know, Maria, I think that we can celebrate the fact that a daughter of

two immigrants has had such a celebrated political career to be elected statewide

and now be the nominee for the Democrat Party. I think what’s more concerning

is some of the socialist ideas she seems to have imported from overseas as well.

Whether or not that is $4 trillion in tax increases or mandating a government

takeover of healthcare, I think what gives us greater pause is the policies that

she’s advocated. But it’s going to present a tremendous contrast to the American

people to choose between a freedom and opportunity agenda that the

Trump/Pence administration stands for versus a path to socialism and decay that

we believe the Biden/Harris ticket stands for.

102

He then made statements similar to the “path to socialism” attack in a subsequent interview. On

August 27, Mr. Short gave an interview to the group Campus Reform in his official capacity.

The host asked, “[T]he RNC kicked off last night, the end-of-the-week message that you want

voters to have taken away from things, when all this is said and done, what do you want that to

be?” Mr. Short then laid out the Trump campaign platform and contrasted it with the Biden

campaign platform:

Voters are going to have a really stark contrast this November. They’ll have an

opportunity to choose between hope and opportunity versus socialism and

decline. And I think you’re going to hear that laid out throughout the week. Of

opportunities that we have to say here’s a pro-freedom agenda that’s consistent

with all of the tax reform, deregulation, that helped create 7.5 million jobs before

the pandemic broke out. And those are policies that we want to see continued.

We also will cherish opportunities like school choice. I think that that’s

something that this administration has advocated. I think in a second term you’ll

see us take an even more aggressive push for that. And you’ll hear families in the

next couple days that have benefited from school choice opportunities. And so

that’ll be a key component of the agenda. But I think it’s in stark contrast to

where Democrats have painted a very dark picture of America. And a picture that

I think the policies they are embracing of Bernie Sanders basically, in essence,



100

Pollsters are underestimating Trump voters: Marc Short, The Evening Edit w/ Elizabeth MacDonald (June 22,

2020), at 4:51-5:26, https://video.foxbusiness.com/v/6166480779001#sp=show-clips.

101

Id. at 1:55-2:02.

102

Israel-UAE peace deal is a tribute to Trump’s Iran policy: Marc Short, Mornings with Maria (Aug. 14, 2020), at

1:15-1:54, https://video.foxbusiness.com/v/6181133933001?playlist_id=937116503001#sp=show-clips.

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27



saying that what was once radical is now mainstream in our party. They are more

or less fully embracing the unity package between Biden and Sanders that leads to

a true socialist future for our country.

103

ii. Analysis

Each of these 11 senior Trump administration officials violated the Hatch Act by

campaigning on behalf of President Trump—and, in the case of Mr. Meadows, also on behalf of

a congressional candidate—while acting in an official capacity. While speaking as government

officials, and purportedly presenting the official position of the United States of America, not the

Trump campaign, they repeatedly promoted President Trump’s candidacy and attacked

candidates Biden and Harris. Those attacks often specifically referenced Joe Biden and Kamala

Harris’s candidacies for president and vice president. And the partisan, political nature of the

attacks is self-evident. For example, Mr. Morgenstern said that candidate Biden was “hiding

away” because “the more America sees of the [Biden/Harris] ticket, the less they like them,” and

Mr. Short said the 2020 election “present[s] a tremendous contrast to the American people to

choose between a freedom and opportunity agenda that the Trump/Pence administration stands

for versus a path to socialism and decay that we believe the Biden/Harris ticket stands for.”

Although these statements, and the others cited in the preceding section, were made in the

context of official interviews, they were wholly unrelated to any legitimate government

business.

104

Rather, they were explicitly directed at promoting President Trump’s reelection and

opposing candidate Biden’s candidacy. Accordingly, making these statements was political

activity under the Hatch Act. By engaging in these taxpayer-funded campaign activities while

speaking in an official capacity, these officials violated the § 7323(a)(1) prohibition against using

their official authority or influence for the purpose of interfering with or affecting the result of an

election.

The Trump White House Counsel’s Office, in responding on behalf of the subjects to

OSC’s investigative requests in these cases, made two primary arguments against finding Hatch

Act violations. The first was that the Hatch Act does not apply, and was never meant to apply, to

“assertions of fact . . . that neither advocate for or against a political party or candidate” or to

“commentary on significant policy issues.” The second was that finding violations in these cases

might violate employees’ free speech rights under the First Amendment. OSC refutes each

argument in turn.

As to the first, OSC agrees that government officials acting in an official capacity may

make statements of fact that do not constitute political activity without violating the Hatch Act.

OSC similarly agrees that the Hatch Act does not prohibit such officials, while acting in an

official capacity, from commenting on significant policy issues. Concern that the Hatch Act

might be used to prevent government officials from making these types of statements dates back



103

EXCLUSIVE: Inside the Trump Administration’s Plan to Combat China, Protect Free Speech, Campus Reform

(Aug. 27, 2020), at 0:30-1:38, https://www.youtube.com/watch?v=fKrSnKG9Yoo&t=1s.

104

Mr. Meadows even appeared to acknowledge during his POLITICO interview that he was about to make

statements prohibited by the Hatch Act when he tried to “put on [his] political hat” and speak in a “personal

capacity.” As noted supra note 93, an employee cannot circumvent the Hatch Acy by simply “switching hats”

during an official interview.

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28



to passage of the law in 1939. In his signing statement, President Roosevelt wrote that all

government employees, “from the highest to the lowest,” retained the right under the Hatch Act

“to give to the public factual information relating to the conduct of Government affairs. To rule

otherwise would make it impossible for the people of the United States to learn from those who

serve the Government vital, necessary, and interesting facts relating to the manifold activities of

the Federal Government.”

105

President Roosevelt’s message emphasized that the Hatch Act does not prohibit

government officials from making factual statements “relating to the conduct of Government

affairs.” But the statements described in this section are not factual statements about the conduct

of government affairs or, as the Trump administration described it, “commentary on significant

policy issues.” To take just one example, senior administration officials repeatedly referred to

candidate Biden as “hiding in his basement” and, as Mr. Miller said, “emerg[ing] every now and

again [to say] whatever his 23-year-old staffer tells him to say and then he dutifully disappears to

be seen a week later.” It simply cannot be argued that in doing so they were providing what

President Roosevelt described as “vital, necessary, and interesting facts relating to the manifold

activities of the Federal Government.” Even those interviews that included some discussion of

policy, such as Secretary Brouillette’s, contained political activity—in that case, warning what

would happen if candidate Biden were to win the election.

106

Making those statements, and the

other similar statements and actions that OSC concludes violated the Hatch Act, was akin to

campaign activity. And wielding the official authority of the government to make partisan

political statements is exactly the sort of conduct that the Hatch Act was meant to prohibit.

107

As to the second argument, that the conduct described herein is protected by the First

Amendment, the Trump administration provided OSC with no credible legal basis for its

position. Rather, it simply insinuated that finding a violation in these cases “risks violating the

First Amendment” and would be “likely unconstitutional.” This bare assertion is fatally

undermined by substantial authority supporting the proposition that the Hatch Act’s restrictions

on government employee speech are constitutional.

As previously noted, the Supreme Court has twice upheld the Hatch Act’s

constitutionality in cases brought by public employees claiming that it deprived them of their

First Amendment rights.

108

But more broadly, the government can—and regularly does—

constitutionally limit speech by government employees.

109

The Supreme Court has articulated a

two-part inquiry for analyzing the constitutionality of such limitations on employee speech.

110



105

Message from the President of the United States Relating to Senate Bill 1871, An Act to Prevent Pernicious

Political Activities, at 3-4 (Aug. 2, 1939).

106

Secretary Brouillette told OSC that he “intentionally deflected [his] response to avoid commenting on the

election or specific comments made by candidates,” but he did not reconcile that statement with the fact that he said

candidate Biden’s statements were “an enormous deal” and that “no one should buy” that candidate Biden would

“leave fossil fuels alone” if he were to win.

107

See generally supra Part II (describing the historical developments leading to the Hatch Act).

108

See U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548 (1973); United Pub. Workers of

Am. v. Mitchell, 330 U.S. 75 (1947).

109

See, e.g., Snepp v. United States, 444 U.S. 507 (1980) (affirming the constitutionality of a prepublication review

requirement for former employees of the Central Intelligence Agency).

110

See Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

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29



The first question is whether the employee is speaking as a private citizen upon matters of public

concern. If so, then the second question is whether the regulation of the employee’s speech can

be justified by the government’s interest in promoting the efficiency of the public service. But if

under the first prong an employee is not speaking as a private citizen, then the employee “has no

First Amendment cause of action” because “when public employees make statements pursuant to

their official duties, the employees are not speaking as citizens for First Amendment purposes,

and the Constitution does not insulate their communications from employer discipline.”

111

All the violations in this section involve federal employees acting within the scope of

their official duties—i.e., giving media interviews on behalf of the Trump administration.

Accordingly, they have no cognizable free speech interest under the First Amendment. Because

each employee engaged in political activity while acting in an official capacity, each employee

violated the Hatch Act.

B. Senior Trump administration officials violated the Hatch Act during the Republican

National Convention.

Three weeks before the RNC, President Trump was asked about the Hatch Act

implications of using the White House as the venue for the RNC. He responded, “There is no

Hatch Act” concern because “it doesn’t pertain to the president.”

112

Although President Trump

was correct in that he was not subject to the law, his answer ignored the fact that the Hatch Act

did apply to those senior administration officials who were asked to engage in RNC-related

activities on his behalf. Two officials that OSC investigated, Secretary Pompeo and Acting

Secretary Wolf, were asked to participate in RNC-related activities for the president. Those

requests came from the White House or, in Secretary Pompeo’s case, possibly the Trump

campaign or President Trump himself.

113

OSC acknowledges that the source of the requests

might have placed Secretary Pompeo and Acting Secretary Wolf in a difficult position but

nevertheless concludes that each violated the Hatch Act by participating in RNC-related

activities.

Secretary Pompeo’s violations relate to his changing U.S. Department of State (State

Department) policy to allow himself to speak at the RNC and thereafter using his official

authority while giving that speech to promote President Trump’s candidacy. Acting Secretary

Wolf’s violation relates to an official naturalization ceremony he presided over that was

produced for the RNC. Both reflect the Trump administration’s willingness to manipulate

government business for partisan political ends.



111

Id. at 418, 421.

112

President Trump Holds Coronavirus News Conference, C-SPAN, at 25:37-25:41 (Aug. 5, 2020), https://www.c-

span.org/video/?474563-1/president-trump-comments-mail-voting-fraud-claims.

113

As noted infra note 122, it is unclear from the memorandum directing the policy change who made the request, as

that memorandum variously refers to the request coming from “the White House,” “the President’s campaign,” or

otherwise being made “by or for the President.”

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30

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i. Factual Findings – Secretary of State Michael Pompeo and the Jerusalem Speech

On or about August 21, Secretary Pompeo approved a change to a State Department

policy that until then had prohibited him and all other political appointees at the State

Department from engaging in many partisan political activities, such as addressing a political

party convention. However, he approved a change to the policy—for the Secretary of State

only—just days before he delivered a taped speech from Jerusalem to the RNC. Under the new

policy, the Secretary of State “is not restricted from addressing a political party convention when

requested by or for the President.”

114

That decision was made against the advice provided to

Secretary Pompeo by senior State Department lawyers.

115

The restrictions that the State Department imposed upon its political appointees are

derived from the president’s authority to restrict the political activity of presidential and political

appointees pursuant to 5 C.F.R. § 734.104. That authority was delegated to the Secretary of

State in 1994,

116

and the State Department policy was promulgated shortly thereafter. The policy

is based upon the importance of ensuring that the State Department’s work—advocating for

American interests abroad on a nonpartisan basis—is not viewed as overtly partisan. Similar

restrictions apply at the Departments of Defense, Justice, and Homeland Security, whose work

likewise requires the appearance of nonpartisanship.

117

Since the policy went into effect in the

mid-1990s, neither OSC nor the State Department is aware of a sitting Secretary of State

addressing a political convention.

OSC has no evidence that the change Secretary Pompeo approved was driven by a

measured reconsideration of the underlying policy rationale for the existing restrictions.

Secretary Pompeo had in fact himself reaffirmed those restrictions in December 2019. And in

July 2020, less than a month before Secretary Pompeo approved the exception for the Secretary

of State, the State Department circulated a document issued under his signature that reiterated the

political activity restrictions on State Department political appointees, including the Secretary of

State. Those restrictions prohibited the Secretary of State from addressing a political party

convention.

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114

Memorandum from the Under Secretary of State for Management to the Designated Agency Ethics Official 1

(Aug. 21, 2020).

115

OSC has reviewed the document provided to Secretary Pompeo and concluded that the State Department

accurately advised him with respect to the Hatch Act implications of both changing the policy and delivering a

speech to the RNC. OSC further concludes that Secretary Pompeo disregarded that advice. OSC refers all questions

about this document to the State Department.

116

Memorandum for the Secretary of State, 59 Fed. Reg. 54,121 (Oct. 27, 1993).

117

See, e.g., Memorandum from Lee J. Lofthus, Assistant Attorney General for Administration, to all Department of

Justice Non-Career Employees 1 (June 10, 2020) (“In consideration of the Department’s mission, Attorneys General

have previously determined that, as a matter of Department policy, all political appointees will be subject to the

rules that govern ‘further restricted’ employees under the Hatch Act to ensure there is not an appearance that

electoral politics plays any part in the Department’s day-to-day operations.”), available at

https://www.justice.gov/jmd/file/834496/download; Joint Ethics Regulation, U.S. Dep’t of Defense, 6-200(d) (Nov.

17, 2011) (“As a matter of longstanding DoD policy . . . DoD employees who are appointed by the President, by and

with the advice and consent of the Senate (e.g., the Secretary of Defense, the Secretaries of the Military

Departments, etc.) . . . may not engage in activities that could be interpreted as associating the DoD with any

partisan political cause or issue.”), available at https://dodsoco.ogc.osd.mil/Portals/102/550007r.pdf.

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The policy change was precipitated by Secretary Pompeo being asked, on behalf of

President Trump, to participate in the RNC.

118

Secretary Pompeo thereafter planned to tape an

address to the RNC while on official State Department travel overseas. The memorandum

directing the change stated that “while the overall goal of projecting a non-partisan foreign

policy remains sound,” an exception to the policy was warranted “[g]iven that the Secretary’s

participation in the national convention is requested on behalf of the President.”

119

The

memorandum further stated that the existing policy was based “on an exercise of the President’s

own authority” and that “the Department should not exercise that authority to interfere with

otherwise permissible actions directed or requested by or for the President.”

120

Secretary Pompeo’s plan also implicated a State Department policy, codified in the

Foreign Affairs Manual, which provides that a “U.S. citizen employee, spouse, or family

member shall not engage in partisan political activities abroad.”

121

That policy prohibits all U.S.

citizen employees and family members, including family members who are not government

employees, from engaging in many activities related to U.S. elections while overseas. On

August 21, one of Secretary Pompeo’s subordinate political appointees granted him a “one-time

exception” to that policy “in the event [Secretary Pompeo] chooses to address the Republican

National Convention and needs to record his remarks while on travel.”

122

No other U.S. citizen

State Department employees stationed overseas, or their spouses or family members, received

the benefit of the exception.

The State Department further advised Secretary Pompeo with respect to how to comply

with the Hatch Act when delivering the speech. As he did with the policy change, Secretary

Pompeo disregarded that advice.

Secretary Pompeo proceeded to record the speech for the RNC while on official State

Department travel to Jerusalem, a city that was the site of a significant Trump administration

foreign policy achievement. Secretary Pompeo highlighted the location when he introduced

himself:

I’m Mike Pompeo. I’m speaking to you from beautiful Jerusalem, looking out

over the Old City. I have a big job—as Susan’s husband and Nick’s dad. Susan

and Nick are more safe, and their freedoms more secure, because President Trump

has put his America First vision into action.

123

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118

The memorandum directing the policy change, issued by one of Secretary Pompeo’s subordinate political

appointees, begins by noting that “[t]he Secretary has been asked to record an address to the Republican National

Convention (RNC).” Memorandum from the Under Secretary of State for Management, at 1. However, it is unclear

from the memorandum from whom the request came, as it variously refers to a request from “the White House,” the

“President’s campaign,” and a request made “on behalf of the President.” Id.

119

Id.

120

Id.

121

3 Foreign Affairs Manual 4123.3.

122

Memorandum from the Under Secretary of State for Management, at 1.

123

Mike Pompeo delivers remarks at 2020 RNC, ABC News (Aug. 24, 2020), at 0:00-0:21,

https://abcnews.go.com/Politics/video/mike-pompeo-delivers-remarks-2020-rnc-72612744.

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32

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Secretary Pompeo did not expressly refer to his position as Secretary of State. He did,

however, speak almost exclusively about official matters. During the speech, which lasted less

than four minutes, Secretary Pompeo covered numerous issues within his portfolio as Secretary

of State: China trade policy; North Korean denuclearization; Ukrainian arms sales; treaties with

Russia; controlling Iran’s nuclear weapons; and brokering a peace deal between Israel and the

United Arab Emirates. He also described how President Trump is perceived in foreign capitals

and praised the Trump administration’s decision to move the U.S. embassy in Israel to “this very

city of God, Jerusalem, the rightful capital of the Jewish homeland.”

124

ii. Analysis – Secretary of State Michael Pompeo and the Jerusalem Speech

OSC concludes that Secretary Pompeo violated the Hatch Act in two instances. First, he

did so by authorizing a last-minute change to State Department policy for the purpose of

promoting President Trump’s reelection. And second, he did so by devoting nearly the entirety

of his RNC speech to discussing matters within his purview as Secretary of State, thereby using

his official authority in furtherance of President Trump’s reelection.

The Hatch Act prohibits government officials from taking official actions for the purpose

of promoting a candidate’s campaign for partisan political office. In 2011, OSC issued a report

that found more than a dozen instances of government officials scheduling and participating in

purportedly official events that were actually coordinated to benefit various political

campaigns.

125

In each case, the event at issue was nominally related to the work of the relevant

agency, and thus in theory could have been conducted as an official event, but the underlying

facts established that each event’s true purpose was to promote a candidate. OSC concluded that

this manipulation of official government business to serve partisan ends violated § 7323(a)(1).

Secretary Pompeo’s approval of the change to State Department policy is a similar

manipulation of government business to benefit a particular candidate. The timing, justification,

and scope of the change suggest its sole purpose was to promote President Trump’s reelection

campaign.

In December 2019, Secretary Pompeo reaffirmed the policy that prohibited him and all

other State Department political appointees from addressing a political convention. Presumably,

that decision reflected a consideration on his part that the policy—then in effect for nearly 30

years—was sound and in the best interests of the State Department. In or about August 2020,

Secretary Pompeo was asked to support President Trump’s reelection by speaking at the RNC.

The existing policy precluded him from doing so. Secretary Pompeo thereafter authorized a

change to the policy, less than one week prior to his speech, in order to allow himself to support

President Trump’s reelection campaign. The new policy allows for the Secretary of State to

engage in political activity when “directed or requested by or for the President.”

126

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124

Id. at 2:58-3:02.

125

See generally Investigation of Political Activities by White House and Federal Agency Officials During the 2006

Midterm Elections, Chapter Five (Jan. 2011) (government officials cannot engage in otherwise-permissible events if

the underlying purpose is to promote the campaign of a candidate for partisan political office).

126

Somewhat paradoxically, the new policy realizes the fears of both proponents and opponents of the Hatch Act.

Proponents of the Hatch Act worried that without the law the president might turn the executive branch into a

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33

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The impetus for the change was that President Trump, or someone acting on his behalf,

requested that Secretary Pompeo record an address for the RNC. Thus, it appears that Secretary

Pompeo reversed his earlier decision to affirm the policy because it prohibited him from

campaigning on behalf of a specific candidate for partisan political office. There is no evidence

that the change was driven by a reassessment of the underlying policy considerations implicated

by the existing restrictions. As noted above, when Secretary Pompeo had a chance to review the

policy just eight months earlier he chose to reaffirm the then-existing restrictions. And the

memorandum directing the policy change noted the merits of the existing policy.

127

Rather, the

evidence shows that the change was motivated by a desire to promote President Trump’s

reelection.

Notably, the memorandum directing the policy change begins by stating that the

“Secretary has been asked to record an address to the Republican National Convention (RNC).”

While it is unclear who made the request—the memorandum variously refers to “the White

House,” the “President’s campaign,” and a request made “on behalf of the President”—it is clear

that the reason for the policy change was that Secretary Pompeo was asked to engage in political

activity in support of the president’s campaign. This reinforces the conclusion that the policy

change was driven not by a reassessment of the relevant policy considerations, but by a desire to

benefit the President’s reelection. It also substantially undercuts any argument that the policy

should have been amended, as stated in the memorandum, so as not to “interfere with otherwise

permissible actions directed or requested by or for the President.” Even if the request came from

President Trump himself, the nature of the request—that Secretary Pompeo speak at the RNC in

furtherance of President Trump’s reelection campaign—makes it one that President Trump

necessarily would have made in his capacity as a candidate. Secretary Pompeo was not asked by

the president to reconsider or revise the existing policy in order to best serve the interests of the

State Department. Instead, he was asked by, or on behalf of, a candidate for partisan political

office to engage in political activity prohibited by existing State Department policy. He chose to

accede to that request. To facilitate that political activity, Secretary Pompeo had to exercise his

official authority to amend the policy. That he did so to promote President Trump’s reelection is

a manipulation of official business—in this case, State Department policy—for the purpose of

benefiting a candidate for partisan political office. Accordingly, Secretary Pompeo violated the

Hatch Act by authorizing the policy change.

Secretary Pompeo’s speech also required that he be granted a “one-time exception” from

a separate State Department policy that prohibits all U.S. citizen employees, and their spouses

and family members, from engaging in political activity while on State Department-related travel

abroad. The “one-time” nature of that exception provides further evidence that the changes to

State Department policy were for the purpose of promoting President Trump’s reelection rather

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political machine, while opponents worried that the Hatch Act would infringe upon employees’ First Amendment

rights to engage in the political process. Under the new State Department policy, the Secretary of State is still

prohibited from engaging in most political activity unless specifically directed by or for the president. In other

words, the Secretary of State cannot independently engage in most types of political activity, thus substantially

limiting the Secretary’s First Amendment rights, and yet is also a one-person “political machine” subject to the

whims and partisan inclinations of the president.

127

Memorandum from the Under Secretary of State for Management, at 1 (“the overall goal of projecting a non-

partisan foreign policy remains sound”).

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34

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than a result of some broader reassessment of State Department policies and interests. As with

the policy change, the stated justification for the “one-time exception” was that the request for

Secretary Pompeo to speak at the RNC came from President Trump. The ultimate effect was

that while all other U.S. citizen State Department employees stationed overseas and their spouses

and family members were not allowed to undertake many actions related to the 2020 election,

Secretary Pompeo was permitted to record an address to the RNC, while travelling abroad to

Israel, for the purpose of supporting President Trump’s reelection.

Separately, Secretary Pompeo’s speech constituted a misuse of his official authority

because he discussed the work of his agency while engaging in political activity. OSC has long

advised Cabinet officials that, when speaking in a personal capacity for a partisan political

purpose—which Secretary Pompeo apparently attempted to do by introducing himself as

“Susan’s husband and Nick’s dad” rather than as Secretary of State—they must avoid talking

about the work of their agencies to ensure that they do not mix their official work with their

personal political activity. This is so officials do not implicitly or explicitly rely upon their

official authority to strengthen the impact of their political activity, which would constitute a

prohibited use of their official authority to interfere with or affect an election.

128

The State

Department’s guidance to Secretary Pompeo was consistent with OSC’s previous advice. The

State Department also recommended that Secretary Pompeo seek guidance from OSC if he chose

to give the speech, yet Secretary Pompeo never did so.

Secretary Pompeo’s speech was focused almost exclusively on the work of the State

Department. In less than four minutes he discussed seven major Trump administration foreign

policy decisions. His reference to his wife and son at the beginning of the speech appears

intended to convey that he was speaking in a personal capacity. But even assuming that were

true, Secretary Pompeo nevertheless violated the Hatch Act by repeatedly discussing the Trump

administration’s foreign policy accomplishments. OSC concludes that Secretary Pompeo’s

decision to speak in support of President Trump’s reelection by describing the Trump

administration’s foreign policy record—i.e., the work of the State Department—was not

coincidental. Instead, Secretary Pompeo did so because his official authority as the sitting

Secretary of State gave greater weight to his endorsement of President Trump’s reelection, an

endorsement that was predicated almost entirely upon descriptions of the State Department’s

work. Thus, OSC concludes that Secretary Pompeo violated the Hatch Act by speaking

extensively about State Department business while giving a political speech, and thereby using

his official authority in furtherance of President Trump’s reelection.

iii. Factual Findings – Acting Secretary of Homeland Security Chad Wolf and the

Naturalization Ceremony

On August 25, President Trump and Acting Secretary of Homeland Security Chad Wolf

presided over a naturalization ceremony in the Cross Hall of the White House. Footage of that

ceremony was then broadcast that evening as part of the RNC. The evidence that OSC gathered

shows that this official U.S. government event was scheduled and conducted for the purpose of

producing content to be used at the RNC. Although Acting Secretary Wolf was the person about

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128

Cf. 5 C.F.R. §§ 734.302(b)(1) and 303(c) (prohibiting government employees from using their official titles in

connection with their personal political activity).

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35

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whom OSC received complaints, the evidence shows that other officials at both DHS and within

the Trump White House were instrumental in orchestrating the ceremony for the RNC.

However, due to enforcement challenges that are more fully described in the next Part, OSC was

unable to identify which specific DHS and White House employees were most culpable.

129

Accordingly, while this section and the following analysis focus on OSC’s conclusion that

Acting Secretary Wolf violated the Hatch Act, others likely violated the law as well.

Internal emails show that in early August, the White House and DHS were discussing

options for a naturalization ceremony hosted by a “high level principal.” On August 17, the

White House communicated to DHS that it wanted to conduct a small naturalization ceremony

presided over by President Trump and featuring applicants from Florida, Texas, Arizona,

Wisconsin, and Nevada. As of August 17, the ceremony was scheduled to take place on or

around Constitution Day, September 17.

But on Tuesday, August 18, the White House decided to move the ceremony to the

following week—the week of the RNC. The DHS contact coordinating with the White House

noted that the ceremony was a “close hold” and that the White House was “very anxious” about

the event. Other DHS employees also understood that the ceremony was to be “super close

hold” and “as close hold as possible.”

On Thursday, August 20, Acting Secretary Wolf’s scheduler communicated with a White

House employee who said that the ceremony would be “pre-taped” for the RNC. The scheduler

then emailed a DHS ethics official and said that Acting Secretary Wolf “was asked to participate

in a small naturalization ceremony” that “is going to be recorded and then played at the RNC.”

The ethics official correctly concluded that staging an official event in coordination with a

political party and for the purpose of creating content for that party’s national convention would

violate the Hatch Act. The ethics official emailed the scheduler the following morning and said

that it would likely violate the Hatch Act for Acting Secretary Wolf to participate in the

ceremony.

On Friday, August 21, the scheduler forwarded the ethics official’s email to DHS’s acting

Chief of Staff (CoS) and DHS’s Senior Official Performing the Duties of the General Counsel

(GC). The scheduler told the GC that the CoS would call him to discuss the ethics official’s

determination that the Hatch Act precluded Acting Secretary Wolf from participating in the

naturalization ceremony.

Also on August 21, the GC spoke with the DHS ethics official and asked if the Hatch Act

violation would be cured by the White House characterizing the ceremony as an official event.

The ethics official advised that this would not cure the problem, since the original purpose of the

event was to use government resources to produce content for a political convention. That day,

the GC spoke with an attorney in the White House Counsel’s Office, and they agreed that the

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129

See infra Part IV(2) (describing deficiencies in the responses that OSC received to investigative questions about

the naturalization ceremony). Most of the documents produced in response to OSC’s requests were provided only

after the political appointees involved in the naturalization ceremony had left government service, which further

limited OSC’s ability to seek additional information. See infra Part IV(7) (describing the limits to OSC’s subpoena

power in light of the lack of a quorum on the Merit Systems Protection Board).

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36

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ceremony would be planned and executed as an official event. The White House attorney

communicated that determination to White House staff and, according to that attorney, the

ceremony “was thereafter organized and executed as an official event.”

OSC repeatedly warned both DHS and the Trump White House that, because the

ceremony was designed to produce content for the RNC, the proposed naturalization ceremony

would violate the Hatch Act even if it was later characterized as an official event. OSC first

advised a DHS ethics official of this on August 20, prior to the event being reclassified as an

official event, and again on August 25, the morning of the event, after learning that it had been

reclassified. OSC similarly advised the White House on August 20 and 24. As late as 10 a.m.

on the morning of the ceremony—just 45 minutes prior to the event—the DHS ethics official

emailed DHS leadership, including the GC, stating that Acting Secretary Wolf should not

participate in the ceremony. A DHS employee replied and copied the CoS, writing “please note.

Can you reach out to OGC soonest?”

The GC responded to the ethics official’s August 25 email by writing that White House

lawyers had advised him that this would be an official event and that “[a]fter the event, they

stated that the photographs and video will be publicly released.” The GC forwarded the email to

the CoS at 10:04 a.m.

During an investigatory interview with OSC, the CoS said that if he knew there were any

Hatch Act concerns with the event then he would have told Acting Secretary Wolf. Emails

reviewed by OSC show that the CoS knew on August 21 that a DHS ethics official had advised

that Acting Secretary Wolf likely could not participate in the ceremony. The CoS then discussed

that email with the GC. As late as Sunday evening, August 23, the CoS and the GC were

emailing about whether Acting Secretary Wolf could participate in the ceremony consistent with

the Hatch Act. The CoS nevertheless told OSC that he never saw the ethics official’s original

email, in which she advised that Acting Secretary Wolf’s participation would likely violate the

Hatch Act, and that he was not otherwise aware of any Hatch Act concerns with the ceremony.

During an investigatory interview with OSC, the GC asserted that he disregarded the

ethics official’s advice because, as he stated repeatedly, the ethics official’s analysis was based

on the incorrect assumption that the ceremony was going to be livestreamed during the RNC.

However, nothing in the email records shows that the ethics official’s advice was based upon the

impression that the event would be livestreamed. To the contrary, the ethics official’s initial

advice was in response to an email stating that the ceremony would be “recorded and then played

at the RNC.” The ethics official’s response explicitly referred to the event “being taped for the

RNC” rather than livestreamed. The GC was forwarded the email with the ethics official’s

analysis.

OSC submitted questions to the White House attorney for a written response. He

declined to answer many of the questions and claimed that many—although he did not identify

which ones specifically—involved privileged information. He did not identify which privilege

was at issue. The White House attorney claimed to have first learned about the naturalization

ceremony from either the DHS GC or OSC and that upon investigating the matter he learned that

“consideration was being given to holding [the ceremony] as part of the convention.” As an

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37

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apparent defense of the White House’s decision to classify the event as official and place it on

YouTube for the Republican Party to use as part of its convention, the White House attorney

wrote that President Trump “had previously participated in a naturalization ceremony at the

White House in 2019, and I believed footage from that ceremony was made available on the

White House YouTube website.” A comparison of the publicly available footage from the 2019

ceremony and the August 25 ceremony shows that the 2019 ceremony video was of lower

quality, had lower production value, and was edited down to 45 seconds.

130

The video of the

August 25 ceremony, by contrast, was of noticeably higher quality and ran nearly 10 minutes

long.

131

It was shown in its entirety during the RNC. OSC also asked about reports that the

Trump White House referred media questions about the ceremony, a purportedly official event,

to the Trump campaign.

132

The attorney responded that “referral of press questions to the Trump

campaign may have been appropriate depending on the nature of the questions” and did not

elaborate further.

In a written statement to OSC, Acting Secretary Wolf said that:

prior to my participation in the August 25, 2020 naturalization ceremony that was

held at the White House, I did not know whether video of the ceremony was

going to be made publicly available or that it would be used at the Republican

National Convention.

He further stated that his staff did not raise the matter with him beforehand because the

event was cleared in advance by the DHS Office of the General Counsel (OGC). Acting

Secretary Wolf acknowledged that OGC spoke with the White House Counsel’s Office, which

said there were no Hatch Act concerns, but did not reference OGC’s multiple conversations with

OSC in which OSC said that his participation was prohibited by the Hatch Act.

iv. Analysis – Acting Secretary of Homeland Security Chad Wolf and the

Naturalization Ceremony

As noted above, the Hatch Act prohibits government officials from holding purportedly

official events for the purpose of promoting a candidate for partisan political office.

133

With

respect to the naturalization ceremony, the evidence shows that the ceremony was orchestrated to

create content that would be shown during the RNC. The White House said as much to DHS,

and a White House attorney directly involved said that only after Hatch Act concerns were raised

was the ceremony “thereafter organized and executed as an official event.”

134

OSC concludes

that Acting Secretary Wolf violated the Hatch Act by presiding over a naturalization ceremony

held for the purpose of creating content for the RNC.

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130

Compare https://www.youtube.com/watch?v=9ydkQPwMe2k, with

https://www.youtube.com/watch?v=vb9qXvGAQTA.

131

Video of the 2019 ceremony was also not uploaded to the White House YouTube channel until over two weeks

after the event. Video of the August 25 ceremony was uploaded that same evening.

132

Tarini Parti and Michael C. Bender, Immigrants in Trump-Led Ceremony Didn’t Know They Would Appear at

RNC, The Wall Street Journal, https://www.wsj.com/articles/immigrants-in-trump-led-ceremony-didnt-know-they-

would-appear-at-rnc-11598481345.

133

See supra note 129 and accompanying text.

134

Emphasis added.

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38

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Government functions cannot be scheduled, coordinated, or designed for the purpose of

promoting a political party, campaign, or candidate for partisan political office. That the White

House decided subsequently to classify the event as official, and thereby use even more

government resources to stage an event intended for use as part of a political campaign, does not

cure the Hatch Act problem. As of August 20, the White House and DHS understood that the

August 25 ceremony was scheduled so that it could be featured as part of the RNC—i.e., to serve

a partisan political purpose. Therefore, the Hatch Act prohibited federal employees from

participating in the event in an official capacity.

OSC does not have direct evidence showing that Acting Secretary Wolf knew in advance

that the White House intended to use the naturalization ceremony as content for the convention.

And Acting Secretary Wolf claimed in a written statement to OSC that prior to the ceremony he

“did not know whether video of the ceremony was going to be made publicly available or that it

would be used at the Republican National Convention.” However, circumstantial evidence

strongly supports the conclusion that he knew, or should have known, of its intended use by the

White House. The ceremony was held on the second day of the RNC—a convention that Acting

Secretary Wolf was himself scheduled to attend—and at the White House, which was the venue

for the RNC. In addition, multiple senior DHS officials, including the GC, CoS, and senior

agency ethics official, knew of the partisan political nature of the event as of Friday, August 21;

OSC’s evidence indicates that at least one of them would have informed Acting Secretary Wolf

of the White House’s intended purpose for scheduling and filming the naturalization ceremony

during the RNC.

135

Furthermore, it is clear that the ceremony itself was problematic under the Hatch Act

because this official event was orchestrated to be part of the RNC. And political appointees at

both DHS and the White House moved ahead with the event despite being informed by a DHS

career ethics attorney and OSC that doing so for the purpose of creating content for the RNC

would violate the Hatch Act. That decision is emblematic of the Trump administration’s willful

disregard for the Hatch Act.

5. The Trump Administration Ignored the Hatch Act and Approved of Senior Officials

Illegally Campaigning on Behalf of President Trump

OSC concludes that the Trump administration tacitly or expressly approved of senior

officials violating the Hatch Act by campaigning for President Trump’s reelection. This

conclusion is based upon the administration’s refusal to hold officials accountable for their

violations, the frequency and similarity of the violations, and the fact that some administration

officials repeatedly ignored the advice OSC provided to them.

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135

The CoS, for example, told OSC that if he knew there were Hatch Act concerns with Acting Secretary Wolf’s

participation then he would have raised those with Acting Secretary Wolf. Emails show that the CoS did know of

Hatch Act concerns less than 48 hours before the event. While the CoS claims that he did not inform Acting

Secretary Wolf of those concerns, OSC does not fully credit the CoS’s testimony given other statements in his

interview that were inconsistent with the evidence OSC gathered in its investigation. Furthermore, OSC finds it

unlikely that none of the DHS and White House officials who were aware that both a career DHS attorney and OSC

had Hatch Act concerns with the ceremony informed Acting Secretary Wolf of that fact, even if only to prepare him

for questions about his participation afterward.

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39

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The cumulative effect of these repeated and public violations was to undermine public

confidence in the nonpartisan operation of government. Equally troubling, the obvious

noncompliance by senior administration officials also caused career federal employees to ask

OSC whether they were still required to comply with the Hatch Act. As OSC previously stated

in a letter to the president documenting Hatch Act violations by Ms. Conway, such conduct by

senior administration officials “erode[s] the principal foundation of our democratic system—the

rule of law.”

136

A. The Trump administration refused to hold senior officials accountable for violating

the Hatch Act and in at least one case publicly defended a senior official who OSC

found violated the Act.

OSC sent President Trump three reports documenting numerous unequivocal violations

of the Hatch Act by senior Trump administration officials.

137

OSC wrote a fourth report

documenting Hatch Act violations by a senior Trump administration official but, because that

report was not completed until February 2021, OSC sent it to President Biden.

138

Because of the

appointments held by the subjects of those three reports submitted to President Trump, OSC

concluded it could not pursue disciplinary action against the officials before the Merit Systems

Protection Board. It was therefore incumbent upon President Trump to discipline employees

where appropriate. He did not do so. Instead, he defended and supported even the most

egregious of the violators. In so doing, the administration sent a clear message to similarly-

situated officials—there will be no consequences for breaking the law by campaigning on behalf

of President Trump and other Republican candidates at taxpayer expense.

The Trump administration was not the first to use the power of government for partisan

political purposes. OSC has issued reports documenting Hatch Act violations by administrations

of both parties, including a comprehensive report describing coordinated political activities

during the George W. Bush administration and multiple reports of violations by cabinet

secretaries during the Obama administration.

139

OSC received an unprecedented number of

Hatch Act complaints against Trump administration officials, but that is almost certainly, at least

in part, a reflection of greater public awareness of the Hatch Act and the public’s ability to report

alleged violations to OSC and the increased use of social media. Because OSC generally only

investigates incidents it receives a complaint about, OSC is unable to definitively state that

senior officials in previous administrations did not commit violations like those committed by

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136

Transmittal Letter from Henry Kerner, Special Counsel, U.S. Office of Special Counsel, to Donald J. Trump,

President of the United States of America, at 1 (June 13, 2019).

137

Report of Prohibited Political Activity Under the Hatch Act, OSC File No. HA-20-000279 (Peter Navarro) (Nov.

18, 2020); Report of Prohibited Political Activity Under the Hatch Act, OSC File Nos. HA-19-0631 & HA-19-3395

(Kellyanne Conway) (May 30, 2019); Report of Prohibited Political Activity Under the Hatch Act, OSC File No.

HA-18-0966 (Kellyanne Conway) (Mar. 6, 2018).

138

See Report of Prohibited Political Activity Under the Hatch Act, OSC File No. HA-20-000091 (The Honorable

Carla Sands) (Feb. 12, 2021).

139

See Report of Prohibited Political Activity Under the Hatch Act, OSC File No. HA-16-3113 (Julián Castro) (June

24, 2016); Report of Prohibited Political Activity under the Hatch Act, OSC File No. HA-12-1989 (Kathleen G.

Sebelius) (Aug. 23, 2012); Investigation of Political Activities by White House and Federal Agency Officials During

the 2006 Midterm Elections (Jan. 2011).

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40

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Trump administration officials, but about which OSC never received a complaint. What

distinguishes the Trump administration, however, is the administration’s response to OSC’s

prophylactic and enforcement efforts.

When OSC found violations in previous administrations, White House and other senior

government officials generally acknowledged wrongdoing and took steps necessary to correct

those violations. For example, after OSC concluded that taxpayer funds were improperly used to

pay for former Secretary of Health and Human Services Kathleen Sebelius to engage in political

activity, Ms. Sebelius reimbursed the U.S. Treasury for those costs. In response to an OSC

investigation that concluded former Secretary of Housing and Urban Development Julián Castro

violated the Hatch Act, he acknowledged his error and directed his agency to enhance its Hatch

Act training. And when OSC concluded that a senior Obama administration White House

official violated the Hatch Act while making public statements, the Obama White House

counseled that employee regarding the Hatch Act’s restrictions. OSC found no evidence of any

subsequent violations by that employee. The Trump administration, by contrast, disregarded the

law and refused to hold senior officials accountable.

OSC issued an unprecedented number of reports, four in all, documenting Hatch Act

violations by senior Trump administration officials.

140

Those included two reports concerning

Counselor to the President Kellyanne Conway, whose repeated, flagrant violations led OSC to

call for the president to remove her from federal service.

141

OSC further issued warning letters

to eight White House employees notifying them that they had violated the Hatch Act. And OSC

made itself available to the White House and provided both training materials and advisory

opinions as requested.

OSC expected that, as a result of its repeated enforcement and outreach efforts, the

administration would take the necessary actions to ensure that employees complied with the law.

But rather than attempt to comply with the law, the most senior officials in the administration

were publicly and, reportedly, privately dismissive of the Hatch Act’s restrictions. Mark

Meadows, the White House Chief of Staff, said during an interview that “nobody outside of the

Beltway really cares” about whether senior administration officials violated the Hatch Act and

called such allegations “a lot of hoopla.”

142

Ms. Conway, when asked about OSC’s first report

concluding that she had violated the Hatch Act, responded by saying “blah, blah, blah,” and “let

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140

Three of those reports were sent to President Trump, while the fourth related to an investigation that was not

completed until February 2021, and so the resulting report was sent to President Biden rather than President Trump.

See supra note 155 and accompanying text.

141

The other two reports involved violations by former senior Trump administration officials Peter Navarro and

Carla Sands. See id. Because neither is identified here as having committed additional Hatch Act violations, this

report does not further discuss their past violations.

142

Plug in with Playbook Interview with White House Chief of Staff Mark Meadows, at 10:56-11:14, POLITICO

(Aug. 26, 2020), https://www.politico.com/live-events/2020/08/26/plug-in-with-playbook-interview-with-white-

house-chief-of-staff-mark-meadows-000968.

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41

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me know when the jail sentence starts.”

143

And in 2020 it was reported that White House staffers

“privately scoff at the Hatch Act and say they take pride in violating its regulations.”

144

The administration’s defiance of the Hatch Act is perhaps best exemplified by its failure

to take any apparent action against employees in even the most clear-cut cases. OSC’s second

report documenting violations by Ms. Conway was the first to ever recommend that the president

remove a presidential appointee from federal employment. Despite that recommendation,

President Trump not only refused to act but publicly defended Ms. Conway, reiterating the

baseless claim that taking action against her for statements made in her official capacity would

“take away her right of free speech.”

145

OSC is similarly unaware of any efforts by the Trump

administration to discipline any employees for the violations that OSC brought to its attention.

The Trump White House could not have sent a clearer message that there would be no

consequences for senior administration officials violating the Hatch Act.

The president’s refusal to require compliance with the law laid the foundation for the

violations described in this Part. In each of these instances, senior administration officials used

their official authority or influence to campaign for President Trump. Based upon the Trump

administration’s reaction to the violations, OSC concludes that the most logical inference is that

the administration approved of these taxpayer-funded campaign activities. OSC further

concludes that these violations likely would not have occurred had the Trump administration

made clear to senior officials that they should act in accordance with the Hatch Act and that there

would be consequences for violating it.

B. The Trump administration took no apparent action to control or prevent senior

administration officials from committing frequent and similar violations of the Hatch

Act.

The complaints that OSC received and investigated show a pattern of similar conduct by

senior Trump administration officials designed to bolster President Trump’s chance of reelection.

The Trump administration was well aware that the conduct at issue was prohibited under the

Hatch Act. With respect to media appearances, OSC thoroughly documented in two reports to

President Trump how an official might violate the Hatch Act by advocating for the success or

failure of a candidate for partisan political office during an official interview.

146

With respect to

the naturalization ceremony, OSC communicated directly with the White House and DHS

attorneys to convey that holding the ceremony for the purpose of creating content for the RNC

would violate the Hatch Act. That these repeated violations were allowed to continue shows that

the Trump administration was either unwilling or unable to ensure that senior administration

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143

Brett Samuels, Kellyanne Conway dismisses Hatch Act violation: ‘Let me know when the jail sentence starts,’

The Hill (May 29, 2019), https://thehill.com/homenews/administration/445914-kellyanne-conway-dismisses-hatch-

act-violation-let-me-know-when-the.

144

Michael M. Grynbaum and Annie Karni, Republicans Rush to Finalize Convention (‘Apprentice’ Producers Are

Helping), N.Y. Times, https://www.nytimes.com/2020/08/22/us/politics/republican-convention-preview.html.

145

Judson Berger, Trump on ‘Fox & Friends’: I will not fire Kellyanne Conway after watchdog rebuke, Fox News

(June 14, 2019).

146

See generally Report of Prohibited Political Activity Under the Hatch Act, OSC File Nos. HA-19-0631 & HA-

19-3395 (Kellyanne Conway) (May 30, 2019); Report of Prohibited Political Activity Under the Hatch Act, OSC

File No. HA-18-0966 (Kellyanne Conway) (Mar. 6, 2018).

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42

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officials complied with the Hatch Act. OSC concludes that the administration was unwilling to

do so because it approved of, and in at least one case coordinated, these illegal acts.

Beginning as early as May 2020, and continuing through election day on November 3,

senior Trump administration officials used official media interviews and appearances to

campaign for President Trump’s reelection. Administration officials spoke favorably of the

Trump campaign, not just the Trump administration and its policies, and repeatedly contrasted

the Trump campaign with the Biden campaign. Officials also used the appearances to expressly

campaign against candidate Biden’s candidacy for president and mock his conduct on the

campaign trail. The attacks on candidate Biden generally revolved around three core themes:

that candidate Biden was part of “the establishment” and had achieved nothing during his time in

public service; that candidate Biden was “hiding in his basement” and unwilling to fight for

Americans’ votes; and that a Biden/Harris administration would lead to “socialism and decay” or

otherwise be detrimental to the United States.

Multiple administration officials criticized candidate Biden for being part of “the

establishment” and for purportedly accomplishing little during his time as an elected official.

For example, Mr. Meadows said “[w]e’ve seen Joe Biden for 40 years talk a good game—but

we’ve seen no results.” Mr. O’Brien compared President Trump’s and candidate Biden’s records

by asking “who do you want to turn to to rebuild the economy—the guy who’s proven he can do

it, President Trump, or somebody who’s been in Washington for 40 years?” And Ms. Conway

argued that candidate Biden “has done less in 47 years in Washington than Donald Trump has

done in 47 months in Washington.” Further evidence that this messaging originated from the

White House comes from Ms. Farah, who said that the “White House perspective” was that it

was “incredibly important” to compare “what this president has accomplished in four years and

what his opponent has failed to accomplish in 47 years.”

Multiple officials also remarked how candidate Biden lacked energy compared with

President Trump and was “in his basement” in an apparent attempt to portray him as unwilling to

appear in public or work for the votes of American citizens. Mr. Meadows, in one of his

interviews, talked about how President Trump was working to make sure that American citizens

feel safe once again in their home. He then asked rhetorically, “Where is Joe Biden? In his

basement.” In a Fox Business appearance, Mr. Short said, “there are legitimate questions that

Vice President Biden is yet to face media in over 80 days and seems trapped inside his basement

at the moment.” And on July 31, Senior Advisor to the President for Policy Stephen Miller said

on FNC that “Joe Biden is stuck in a basement somewhere” and “just emerges every now again

. . . and then he dutifully disappears to be seen a week later.”

Two weeks before the election, Ms. McEnany similarly noted that candidate Biden was

“sequestered away for five days” and questioned candidate Biden’s willingness to “fight for the

American people as president.” Mr. Morgenstern echoed those points just four days later, saying

that “one candidate,” President Trump, was “fighting for every vote” while “another one [is]

hiding away” because the Biden campaign knows “the more America sees of their ticket, the less

they like them.”

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43

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The preceding excerpts show that senior Trump administration officials repeatedly

attempted to paint candidate Biden both as an “establishment candidate” with nothing to show

for his 40-plus years of public service and as a candidate who was “low-energy” or unwilling to

“leave his basement” and fight for the votes of the American people. In addition to those two

general lines of attack against candidate Biden’s candidacy, multiple senior Trump

administration officials made negative statements about a hypothetical Biden/Harris

administration to induce support for President Trump’s reelection and opposition to candidate

Biden’s campaign.

For example, Ms. Conway said that if candidate Harris were elected she would “bring our

nation backward on many things that matter to America.” Mr. Short noted that the Trump/Pence

administration offered American voters a “freedom and opportunity agenda . . . versus a path to

socialism and decay that we believe the Biden/Harris ticket stands for” and later referred to the

election as “an opportunity to choose between hope and opportunity versus socialism and

decline.” And Mr. Morgenstern said that the Biden campaign was “offering one of the most

radical climate change agendas, job-killing agendas, free speech stifling agendas maybe we have

ever seen in our entire history.”

These campaign-style statements—all directed toward the success or failure of a

candidate for partisan political office—are similar to those that, in its prior reports to President

Trump, OSC concluded an administration official could not make during an official interview.

Thus, the Trump administration knew that making the types of statements described in this Part

was prohibited. Yet the frequency of those violations only increased as the election approached.

OSC can only conclude that this is because the administration approved of senior administration

officials campaigning for President Trump’s reelection during official interviews and, in

particular, by highlighting the themes described above.

Evidence of the Trump administration’s willingness to actively coordinate, rather than

just approve of, Hatch Act violations comes from the August 25 naturalization ceremony. A

White House lawyer involved with the ceremony told OSC that White House staff members

informed him that “consideration was being given to holding [the] ceremony as part of the

convention.”

147

Communications from the White House to DHS five days before the ceremony

show that the White House not only considered holding the ceremony as part of the RNC, but

that it had in fact decided to “pre-tape” the ceremony so that it could be “played at the RNC.”

The event was not, as the Trump administration tried to suggest in public statements,

coincidentally filmed and uploaded to the White House YouTube page on the same day that it

was shown at the RNC.

148

Rather, it was planned by the Trump White House precisely so that it

could be used as part of the convention. Knowing that footage from the August 25 ceremony

was intended to be used during the RNC that same night, the relevant Trump administration

officials had an obvious solution if they truly wanted to avoid violating the Hatch Act: delay



147

Emphasis added.

148

See Zolan Kanno-Youngs and Michael D. Shear, Trump Takes Night Off From Anti-Immigrant Talk to Swear In

U.S. Citizens, N.Y. Times (“White House officials said Wednesday that the ceremony . . . was an official

government event because it was taped Tuesday afternoon and publicly made available on the White House website.

A White House spokeswoman said the president’s re-election campaign had simply decided to use it once it was on

the website.”), https://www.nytimes.com/2020/08/26/us/politics/trump-naturalization-ceremony-rnc.html.

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44

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posting the video on YouTube until the following day, at which point it could not have been

shown during the convention as planned. Instead, the Trump White House rushed to edit and

post the video in just a few hours.

149

Finally, the violations described in this Part reveal an unmistakable pattern: in each case,

career civil service attorneys—not just at OSC, but also at DHS and the State Department—

warned that certain conduct was prohibited by the Hatch Act. And in each case, Trump

administration political appointees, and particularly Trump administration attorneys, ignored the

advice of the career officials. Those political appointees both baselessly defended obvious

violations and asserted legally dubious workarounds to the concerns identified by the career

officials. It is clear that they did not do so in reliance on the strength of their legal arguments—

as noted elsewhere in this report, Trump administration political appointees cited essentially no

legal authorities for their positions regarding the Hatch Act—but rather to support the Trump

administration’s effort to have executive branch officials use their official authority or influence

in furtherance of the president’s reelection. The fact that OSC could not prosecute these cases

before the MSPB, and the corresponding ability of Trump administration political appointees to

circumvent the law to enable or condone these violations, is one of several Hatch Act

enforcement challenges that is described more fully in the next Part.

In sum, at least 13 senior Trump administration officials violated the Hatch Act as

described in section 4. Recall that one of Congress’s goals in passing the Hatch Act was to

ensure that the power and prestige of the government would not be corrupted to create a

taxpayer-funded campaign apparatus within the executive branch. Congress’s fear was realized

here. These Trump administration officials, while acting in an official capacity, engaged in

campaign activities that were in many cases indistinguishable from the Trump campaign’s own

rhetoric and activities.

150

Contrary to its assertion to OSC that it took “seriously the principles

codified in the Hatch Act,” the Trump administration took no apparent action to control or

prevent the violations. Instead, it welcomed, supported, and in at least one case coordinated

these taxpayer-funded campaign activities.

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149

In the case of the only other White House naturalization ceremony that the Trump administration identified,

video of the event was not posted on the White House YouTube channel for over two weeks.

150

See, e.g., Donald J. Trump for President, Inc., “Delaware,” https://www.youtube.com/watch?v=9PUfxZQa7WQ

(30-second advertisement claiming that candidate Biden is “hiding” in “his basement,” is “diminished,” and has a

record of “five decades of failure”).

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45

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PART IV: ENFORCEMENT CHALLENGES

The 2020 election cycle raised new and unanticipated challenges to OSC’s Hatch Act

enforcement efforts. Those challenges substantially affect OSC’s ability to ensure that executive

branch employees comply with the restrictions that Congress has imposed upon their political

activity. Notably, several of the challenges described herein apply to all of OSC’s Hatch Act

cases and not just those involving senior administration officials. Each of the following sections

concludes with a potential solution to the described enforcement challenge.

1. OSC’s enforcement tools are limited with respect to Senate-confirmed presidential

appointees (PAS) and White House commissioned officers

When OSC concludes that an employee has violated the Hatch Act and the violation

warrants disciplinary action, OSC may seek disciplinary action pursuant to 5 U.S.C. § 1215.

Section 1215 creates a bifurcated enforcement scheme in which certain high-level officials are

subject to a different disciplinary process than are all other federal employees. In the case of

most employees, § 1215 authorizes OSC to file a complaint for disciplinary action with the Merit

Systems Protection Board (MSPB).

151

The MSPB is an independent, quasi-judicial, executive

branch agency consisting of a three-member Board, which serves as an appellate body in Hatch

Act cases, and administrative law judges (ALJs), who preside over the initial hearing of those

cases. If an ALJ establishes that an employee violated the Hatch Act, the ALJ can order any

combination of the following penalties: a letter of reprimand; suspension; reduction in grade;

removal from federal employment; debarment from federal employment for a period not to

exceed five years; and a civil penalty not to exceed $1,125.

152

For PAS and White House commissioned officers, OSC may not pursue disciplinary

action through the MSPB. Rather, for PAS, OSC must report its findings to the president

pursuant to 5 U.S.C. § 1215(b), after which the president may take “appropriate action.”

153

For

commissioned officers, OSC similarly reports its findings to the president for appropriate action.

In the latter case, however, that decision is based upon OSC’s conclusion, supported by an

opinion from the U.S. Department of Justice’s Office of Legal Counsel, that constitutional

considerations preclude the MSPB from disciplining commissioned officers.

154

To avoid raising

difficult constitutional questions, OSC reports to the president Hatch Act violations by

commissioned officers because the president unquestionably has the authority to discipline those

employees. This decision is further based upon OSC’s expectation that in such cases the

president would take action, disciplinary or otherwise, sufficient to impress upon senior

administration officials that they must comply with the Hatch Act. OSC makes public all reports

to the president of Hatch Act violations by PAS and commissioned officers.

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151

See 5 U.S.C. § 1215(a)-(b).

152

5 C.F.R. § 1201.126(a). Note that the statutory maximum penalty amount is $1,000, see 5 U.S.C. § 7326, but

that amount is subject to annual adjustment by the MSPB pursuant to the Federal Civil Penalties Inflation

Adjustment Act Improvements Act of 2015.

153

5 U.S.C. § 1215(b).

154

See 2 U.S. Op. Off. Legal Counsel 107, 108-09 (1978) (questioning the constitutionality of the MSPB

disciplining senior presidential appointees).

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46

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OSC does not have any role in the disciplinary process for PAS or commissioned officers

beyond issuing a report. Furthermore, there is no requirement that OSC be notified of any

resulting disciplinary action. Thus, deterrence for such employees must come from some

combination of (1) an employee’s inherent desire to avoid illegal activity, (2) the prospect of a

public OSC report and the attendant press attention, and (3) an administration’s willingness to

impose meaningful consequences for established violations of the law. When one, or more, of

those factors is missing, the risk that an employee might choose to intentionally engage in

political activity in violation of the Hatch Act increases accordingly.

During the Trump administration, OSC brought cases before the MSPB and settled cases

for disciplinary action prior to filing complaints with the MSPB.

155

Those cases involved both

career employees and a Trump administration political appointee who was not a commissioned

officer. OSC also reported to then-President Trump violations by commissioned officers so that

he could take appropriate disciplinary action. The president did not do so and, because of the

existing statutory scheme, OSC was left with no options to ensure that those senior-most

members of the Trump administration complied with the law. Two statutory changes would

likely resolve this enforcement challenge. First, an amendment allowing OSC to pursue

substantial monetary penalties against PAS and commissioned officers before the MSPB—rather

than the full range of more constitutionally suspect disciplinary actions under existing law—

would empower OSC to directly hold those employees accountable for their Hatch Act

violations. Second, statutory clarification that the MSPB has jurisdiction over former employees

for Hatch Act violations committed during their period of federal employment would ensure that

OSC’s enforcement efforts are not frustrated by employees resigning or otherwise separating

from government service prior to OSC initiating disciplinary proceedings.

2. OSC did not receive from the Trump administration the good faith cooperation

necessary to ensure full compliance with the Hatch Act

OSC is authorized to issue subpoenas and request from agencies the information

necessary to complete its investigations.

156

However, OSC can neither enforce its own

subpoenas

157

nor compel agencies to respond to its investigative requests.

158

Given the limits on

its investigative authorities and the time required to complete investigations, OSC necessarily

depends upon agencies and employees for good faith cooperation with OSC investigations.

Those investigations are fact-finding in nature, and the fact that OSC has opened an investigative

file does not mean that it has already determined that the subject employee violated the Hatch

Act. Nevertheless, the Trump White House at times acted as though its role was to defend the

officials that OSC was investigating rather than cooperate with OSC’s fact-finding process. For

example, OSC requested information from then-National Security Advisor Robert O’Brien after

he made the following statement on the Hugh Hewitt Show:



155

E.g., Special Counsel v. Patton, MSPB Docket No. CB-1216-21-0007-T-1, 2021 MSPB LEXIS 1118 (Mar. 30,

2021); Special Counsel v. Salekin, MSPB Docket No. CB-1216-18-0004-T-1, 2020 MSPB LEXIS 1718 (Apr. 28,

2020); Press Release, U.S. Office of Special Counsel, OSC Announces Discipline for Federal Employees Who

Violated the Hatch Act (Feb. 22, 2021).

156

See 5 U.S.C. § 1212(b).

157

See infra Part IV(7).

158

The remedy for an agency’s failure to comply with an OSC investigative request is for OSC to submit a report to

Congress. See 5 U.S.C. § 1212(b)(6).

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47

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I expect the president to be reelected and reelected overwhelmingly. . . . I think

the president’s going to come out on top. The American people see the leadership

that he’s providing not just with respect to China, they saw him build the greatest

economy in the history of the world. We took a very bad hit because of this virus

that came from China. But who do you want to turn to to rebuild the economy—

the guy who’s proven he can do it, President Trump, or somebody who’s been in

Washington for 40 years? So I think the president’s going to be reelected, and I

think the American people are going to rally around him.

Specifically, OSC asked Mr. O’Brien for an explanation of his remarks and any documents

related to, or a detailed description of, the purpose of the interview, at whose request it was

scheduled, and whether Mr. O’Brien knew in advance any topics to be discussed. The Trump

White House responded on Mr. O’Brien’s behalf as follows:

Your office identified a statement that National Security Advisor O’Brien made

during a June 25, 2020 media interview, but that statement does not constitute a

Hatch Act violation.

Mr. O’Brien was asked a question about the “difference in policy” positions held

by President Trump and former Vice President Joe Biden with respect to China,

and the interviewer flagged for the audience that national security advisors “don’t

do politics.” In response to this question, Mr. O’Brien provided limited

commentary on the current state of the election and conveyed the widely accepted

view that “it’s going to be a close, hotly-contested race.” Mr. O’Brien then

pointed to some of the President’s policy accomplishments, including with respect

to China and the economy. Further, he explained that the President has an

established record with regard to the economy, while making a factual assertion

that Mr. Biden has been in public office for 40 years. Finally, he offered a

prediction regarding the outcome of the election based on the President’s past

policy accomplishments.

Mr. O’Brien did not violate the Hatch Act with this statement, which was made in

response to a direct question and consisted of facts and a discussion of the

President’s policy accomplishments. He did not advocate for or against a political

candidate or party.

The response mischaracterized Mr. O’Brien’s statement, concluded without any legal

analysis or justification that Mr. O’Brien did not violate the Hatch Act, and was not responsive to

OSC’s investigative request. The Trump White House provided similar responses in other cases,

and OSC has limited tools in such circumstances to compel more responsive answers to its

investigative requests.

159

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159

For example, the U.S. Department of Education (ED) provided similarly inadequate responses in connection with

a Hatch Act investigation of former Secretary of Education Betsy DeVos. Despite repeated and detailed requests

from OSC, ED did not provide information necessary for OSC to make a determination as to whether Ms. DeVos

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48

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Timing considerations also make it essential that an administration take necessary steps

to ensure Hatch Act compliance by its senior officials in the final months of an election cycle.

This is because Hatch Act investigations often take significant amounts of time and, in any

event, OSC cannot in most cases stop violations from happening in real time. Even in the case of

violations that appear straightforward on their face, OSC must investigate and gather the relevant

facts before reaching a conclusion. In the best of circumstances that process generally takes

weeks to months.

160

This creates a window in the final months of an election cycle where even if

an administration official violates the Hatch Act, any resulting public report or disciplinary

action would not occur until after the election. However, the harm—the use of official authority

or influence to interfere with or affect an election—would result on or before election day. Thus,

an administration desirous of both using its powers for electoral benefit in violation of the Hatch

Act and avoiding any pre-election ramifications from violating the law could do so by condoning

violations within that window. As described in detail in Part III, OSC has concluded that the

Trump administration did tacitly or expressly approve of myriad Hatch Act violations; many of

them occurred within that critical period immediately prior to the 2020 election during which

OSC was unable to both investigate and resolve the violations prior to election day.

Finally, the Trump administration made dubious claims of privilege to avoid responding

to certain of OSC’s questions. In response to an OSC Request for Information about the August

25 naturalization ceremony described in Part III, a former Trump administration lawyer wrote:

Many of the questions in the Request for Information involve privileged

information concerning discussions within the White House Counsel’s Office or

with other staff members within the White House. While preserving that

privilege, this response attempts to answer OSC’s questions.

The response did not, in fact, answer the majority of OSC’s questions. Furthermore, the specific

privilege at issue was never identified, and it is unclear what, if any, privilege would apply.

OSC’s statutory authority states that “a claim of common law privilege . . . shall not prevent the

Special Counsel from obtaining any material” related to an OSC investigation.

161

And any

assertion of a generic “executive privilege”—i.e., a privilege against disclosing certain materials

outside of the executive branch—would appear to be unavailing considering that OSC is within

the executive branch.

162

Nevertheless, there is no forum in which OSC can seek adjudication of

the Trump administration’s claim of privilege. A statutory amendment granting the MSPB

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violated the Hatch Act during an official interview. OSC closed that file because ED’s deficient responses meant

that OSC had insufficient evidence to reach a conclusion regarding her conduct. Similarly, another allegation OSC

received was that the Trump administration held a pardon ceremony that, like the naturalization ceremony described

supra Part III(4)(B), was intended to create content for use at the 2020 Republican National Convention. OSC

received a deficient response to an investigative request related to the pardon ceremony and was unable to complete

the investigation into whether the Hatch Act was violated in connection with that ceremony.

160

For example, OSC’s typical response deadline to requests for information is two to three weeks. And where a

recipient is unable to meet that deadline, OSC’s investigative timeline is delayed accordingly.

161

5 U.S.C. § 1212(b)(5)(C)(i).

162

See 13 U.S. Op. Off. Legal Counsel 153, 154 (1989) (memorandum from William P. Barr stating that executive

privilege is “a privilege against disclosing information requested by the courts, the public, or the legislative

branch”) (emphasis added).

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49

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greater authority to enforce OSC’s subpoenas and other investigative requests would likely

resolve this enforcement challenge.

163

3. Prior OSC advice to executive branch agencies—that the Hatch Act does not

prohibit agencies from defending an administration’s policy positions—appears to

have been interpreted in a way that allowed senior agency officials to engage in

political activity under the guise of defending the Trump administration’s policy

positions

The Hatch Act regulations define “political activity” as activity directed toward the

success or failure of a political party, partisan political group, or candidate for partisan political

office.

164

Discussing, promoting, or defending an administration’s policy positions generally

does not constitute political activity because those policy positions relate to the official work of

the government rather than the campaign of a candidate for partisan political office. OSC

therefore, historically, has advised both executive agencies and the White House that an

administration can, consistent with the Hatch Act, both promote its own policies and defend

them from criticism. OSC did not anticipate the ways in which that advice could be used by an

administration to justify communications that, in OSC’s view, were made for the purpose of

promoting President Trump’s reelection. Because the communications described in this section

were ostensibly made in reliance upon OSC’s prior advice, OSC is not concluding that any

officials violated the Hatch Act in connection with these communications. Rather, OSC is

describing the incidents here to provide additional advice to ethics officials who may be asked to

review such communications and to clarify that, in the future, OSC will likely consider

communications made under similar circumstances to violate the Hatch Act.

An important factor in OSC’s analysis of agency communications about an

administration’s policies is timing. As an election draws nearer, and particularly an election in

which the incumbent president is on the ballot, an agency’s scrutiny of its public statements

about the current administration should increase. Statements that OSC considers suspect are

those that are equivalent to a “closing argument” for an incumbent president’s reelection

campaign. Examples of such statements are those that credit the incumbent personally for

agency accomplishments and/or that focus on the administration’s past accomplishments rather

than new or future programs or initiatives. On social media, posts immediately prior to the

election that directly reference the incumbent, and where the agency social media account does

not normally reference the incumbent, are also indicative of an attempt to improperly promote

the incumbent’s campaign rather than promote or defend the administration’s policies.

In the days and weeks immediately prior to the 2020 election, some Trump

administration political appointees appear to have used official communications to advocate for

President Trump’s reelection. One complaint involved an op-ed written by then-Secretary of

Agriculture Sonny Perdue in his official capacity, while the remainder related to agency social

media posts. Both the op-ed and the posts in question were ostensibly related to the Trump

administration’s policies. However, the timing and content of the communications, along with

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163

One such possibility would be to authorize the MSPB to order compliance with OSC subpoenas rather than, as is

currently the case under 5 U.S.C. § 1204(c), for the MSPB to have to seek enforcement in a federal district court.

164

5 C.F.R. § 734.101.

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the frequency of the social media posts, suggests that their true purpose was to promote President

Trump’s campaign.

Secretary Perdue’s op-ed was published on November 2, the day before the election.

165

Rather than focus on any new U.S. Department of Agriculture (USDA) programs or policies, the

op-ed primarily summarized accomplishments from the Trump administration’s first term. For

example, the op-ed referenced “the president’s historic 2017 tax reform” and said that by

“fighting for better trade deals, expanding the use of ethanol, or connecting rural Americans to

high-quality broadband Internet, the President has made sure that America is better off.” The op-

ed concludes by saying that “farmers today are better off thanks to President Trump’s policy

initiatives, trade policies and his strong support” and that an increase in farm income since 2016

“didn’t happen by accident.” The fact that the op-ed was published the day before the election

and praised President Trump’s past accomplishments, some in areas only tangentially related to

the work of USDA, strongly suggests that its purpose was to promote President Trump’s

reelection rather than the work of USDA.

Most of the social media-related complaints filed with OSC alleged violations by then-

Secretary of the Interior David Bernhardt. The instances noted in the complaints occurred during

late October 2020 and, read collectively, they point to an effort to promote President Trump’s

reelection using U.S. Department of the Interior (DOI) social media accounts. Notably,

Secretary Bernhardt tagged President Trump’s Twitter account 27 times in the two months prior

to the election but only five times in the two months afterward.

The week before the election, Secretary Bernhardt tweeted repeatedly about the Trump

administration’s conservation record. On October 26, 2020, Secretary Bernhardt tweeted a link

to a DOI report about DOI’s economic impact in fiscal year 2019 and wrote that President

Trump’s “agenda for public lands has been a major boon for communities throughout the

country.”

166

Soon afterward, the DOI Press Secretary account retweeted the post and provided

statistics comparing fiscal year 2016 to fiscal year 2019, a comparison period that seems

designed to emphasize the administration’s accomplishments during its first term rather than the

information contained in the fiscal year 2019 report.

167

The following day, Secretary Bernhardt tweeted a video entitled “President Trump’s

Conservation Record” that appeared to be little more than a campaign ad focused on the

administration’s first-term conservation accomplishments.

168

The video included clips

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165

Sonny Perdue, Agriculture Secretary Perdue: President Trump is Fighting for our farmers, ranchers, and rural

America, Fox Business (Nov. 2, 2020), https://www.foxbusiness.com/politics/agriculture-secretary-perdue-trump-

farmers-ranchers-rural-america.

166

See Secretary David Bernhardt (@SecBernhardt), Twitter (Oct. 26, 2020 10:42 AM),

https://twitter.com/SecBernhardt/status/1320782868239552515. That tweet linked to a press release announcing

DOI’s annual economic report with the headline “Trump Administration’s Interior Supports $336 Billion in

Economic Activity and 1.9 Million Jobs.” Prior press releases announcing the annual economic report referred to

the “Interior Department,” not “Trump Administration’s Interior.”

167

See U.S. Department of the Interior Press Secretary (@DOIPressSec45), Twitter (Oct. 26, 2020 10:45 AM),

https://twitter.com/DOIPressSec45/status/1320783746954571777.

168

See Secretary David Bernhardt (@SecBernhardt), Twitter (Oct. 27, 2020 3:40 PM),

https://twitter.com/SecBernhardt/status/1321174874426167297.

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celebrating achievements under President Trump’s leadership, such as a groundbreaking

ceremony and bill signing, along with a text reel highlighting the administration’s work. Strong

language was used to tout the administration’s leadership, with statements such as the “Single

LARGEST Investment,” “Secured Historic $900 Million a Year for Conservation FOREVER,”

and “More Imperiled Species Recovered in First Term Ever.”

169

The video concluded with

President Trump at an event in Florida celebrating “our incredible record of natural conservation

and environmental protection over the last four years.”

170

Unlike some other videos prepared by DOI, this one promoted the Trump

administration’s first-term record rather than specific programs or pieces of legislation. The DOI

political appointee who requested that the video be assembled wrote in an email that the video

was “to highlight the admin[istration’s] environmental/conservation record similar to the videos

we created to highlight the passage of the [Great American Outdoors Act],” thus placing the

focus squarely on the administration’s first-term accomplishments. The nature of the request so

alarmed an employee involved with preparing the video that he wrote in an email: “I want to

respectfully note (for the record and my own legal protection) that I am doing it under protest,

that I believe it’s still a video with basic political intent, and is therefore a Hatch Act violation.”

The employee’s concern began when he received the first draft of an op-ed that was to

form the basis for the video. That op-ed expressly focused on the election; it began with the

words, “As election day approaches . . . .” DOI ethics officials edited the op-ed to address,

among other things, concern that its publication would violate the Hatch Act. While the changes

may have been made in an effort to technically conform with OSC’s existing Hatch Act advice,

the edits did not scrub the op-ed of the author’s original intent—to promote President Trump’s

reelection. That original intent taints both the op-ed and the resulting video.

DOI attorneys were not asked to review the video until the day it was scheduled to be

released. They raised concerns about both the timing and content of the post, but a DOI political

appointee insisted that the timing—one week before the election—was coincidental and that the

video was intended to promote DOI’s work rather than President Trump’s candidacy. DOI

attorneys ultimately determined that OSC’s existing Hatch Act advice did not provide a basis for

advising against publishing the video. But OSC finds the timing and content of DOI’s posts,

including a video based upon a draft op-ed that referenced the imminent election and praised the

Trump administration’s first-term record, show that they were intended to promote President

Trump’s reelection.

OSC also received complaints alleging that the social media accounts of the U.S. Patent

and Trademark Office (USPTO) and its parent agency, the U.S. Department of Commerce

(DOC), violated the Hatch Act. As with the DOI tweets, the USPTO and DOC tweets’ timing,

content, and focus on past events all suggest that their purpose was to promote President

Trump’s reelection. On October 29, 2020, the USPTO tweeted a “reminder” from its official

Twitter account, attributed to USPTO Director Andrei Iancu, that read: “Just a reminder, under

President Trump’s leadership, the U.S. intellectual property ecosystem ranks #1 in the world,

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169

Id.

170

Id.

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52

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according to the 2020 International IP Index.”

171

The USPTO Twitter account only referenced

President Trump in connection with USPTO programs one other time during the Trump

administration, and that was to celebrate the signing of the 10 millionth U.S. patent.

172

Furthermore, the 2020 International IP Index was released in February 2020, yet USPTO chose

to highlight the ranking—and expressly credit President Trump—over eight months later and just

five days before the 2020 election. Additionally, the day prior to the election the DOC posted

three tweets about Trump administration accomplishments. These tweets all credited President

Trump directly for programs that had been in existence for years, such as the administration’s

“Pledge to America’s Workers” and the National Council for the American Worker.

173

The use of government communications tools to promote an incumbent president’s

political campaign is an example of the sort of “corrupt political machine” that motivated

Congress to pass the Hatch Act in the first place.

174

While the op-ed and social media posts

described above do not seem to have been motivated by anything other than promoting President

Trump’s reelection, they also broadly relate to the administration’s policy proposals and matters

within each agency’s jurisdiction. As noted above, OSC has advised that agencies generally may

defend and promote an administration’s policies consistent with the Hatch Act. To the extent

that these posts—and, in particular, the DOI video that was based upon an op-ed whose purpose

OSC concludes was to promote President Trump’s reelection—go beyond what OSC intended in

its advisory opinions, OSC is using this opportunity to clarify that posts and other

communications made for the purpose of promoting a candidate for partisan political office,

including an incumbent president, are prohibited by the Hatch Act.

OSC recommends that agency ethics officials conduct inquiries, consistent with the

examples and analysis in this section, into the purposes of agency communications that reference

a candidate for elected office, including an incumbent president, and are scheduled to be

disseminated within 60 days of the relevant election. If the purpose of an official communication

is to promote or oppose a candidate, then an employee may not make that communication

regardless of the language used. In other words, an employee cannot make a communication

“Hatch Act compliant” by simply deleting the most suspect words or phrases. OSC further

recommends that if agency ethics officials have concerns about a particular op-ed or post they

should advise delaying the communication until after the election, since presumably no harm

would result from the delay unless the purpose of the communication is to bolster a candidate.

Ethics officials can also contact OSC with any questions about whether making certain

communications may implicate the Hatch Act.

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171

U.S. Patent and Trademark Office (@USPTO), Twitter (Oct. 29, 2020, 1:30 PM),

https://twitter.com/uspto/status/1321912211963564049.

172

U.S. Patent and Trademark Office (@USPTO), Twitter (June 19, 2019 5:30 AM),

https://twitter.com/uspto/status/1141322413050933248. The account also wished President Trump a speedy

recovery from his COVID-19 diagnosis and twice tweeted about President Trump’s declaration of a National Day of

Mourning in 2018 after President George H.W. Bush’s death.

173

See, e.g., U.S. Department of Commerce (@CommerceGov), Twitter (Nov. 2, 2020 12:32 PM),

https://twitter.com/CommerceGov/status/1323362349651173376.

174

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 565 (1973).

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4. OSC does not have the authority to issue or update Hatch Act regulations

The Hatch Act is codified at 5 U.S.C. §§ 7321-7326. Those sections describe generally

the applicable definitions, prohibitions, exceptions, and penalties. The implementing

regulations, which are far more expansive than the statutes, are found at 5 C.F.R. part 734.

Unlike statutes, which may only be amended by an act of Congress, regulations may be amended

by an executive branch agency through a rulemaking process. While OSC has exclusive

authority to investigate and prosecute alleged Hatch Act violations, the U.S. Office of Personnel

Management (OPM) is the agency vested with authority to promulgate Hatch Act regulations.

175

OSC’s inability to issue or amend Hatch Act regulations means that it cannot update those

regulations when circumstances expose gaps in the existing regulatory structure.

Many of the Hatch Act’s prohibitions govern how federal employees communicate about

partisan political matters. OPM last substantively revised the Hatch Act regulations in 1996.

Needless to say, how people communicate has changed dramatically since 1996. The Hatch

Act’s regulations have not kept pace with those technological developments.

176

And despite

OSC notifying OPM about needed changes to the regulations, OPM has not proposed any

substantive amendments.

177

While OSC does not have rulemaking authority with respect to the Hatch Act, it is

authorized to issue advisory opinions.

178

The advisory opinions are not themselves binding law,

but instead an explanation of how a particular set of facts would violate or not violate one of the

Hatch Act’s statutory prohibitions.

179

For example, OSC has published advisory opinions

explaining OSC’s position as to what social media activities violate the Hatch Act.

180

But the

Trump administration argued that OSC acted outside its authority by creating and then enforcing

new law regarding social media accounts. At one point the Trump White House wrote that

“OSC has no authority to issue binding rules that effectively function as Hatch Act

regulations.”

181

But the advisory opinion at issue does not purport to contain binding rules;

rather, it is an advisory document explaining to federal employees how to comply with the Hatch

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175

See 5 C.F.R. § 734.102(c); 18 U.S. Op. Off. Legal Counsel 1, 6 (1994).

176

As just one example, none of the substantive Hatch Act regulations or examples refer to email as a possible form

of political activity. But it is clear from case law that the Hatch Act prohibits sending an email if the content of the

email, or the facts regarding when and to whom an employee sent it, violate one of the Hatch Act’s prohibitions.

See Special Counsel v. Ware, 114 M.S.P.R. 128, 133-34 (2010) (employee violated the Hatch Act by forwarding

emails soliciting political contributions); Special Counsel v. Wilkinson, 104 M.S.P.R. 253, 262 (2006) (employee

violated the Hatch Act by distributing campaign material via email while on duty and in the federal workplace).

177

OSC submitted proposed regulatory amendments to OPM during both the George W. Bush and Obama

administrations. OPM did not pursue rulemaking in either case.

178

5 U.S.C. § 1212(f).

179

For example, OSC has published advisory opinions describing how employees might violate the Hatch Act when

using email, in accordance with the case law cited supra note 200.

180

E.g., The Hatch Act: Frequently Asked Questions on Federal Employees and the Use of Social Media and Email

5 (Revised Dec. 18, 2015),

https://osc.gov/Documents/Hatch%20Act/Advisory%20Opinions/Federal/Social%20Media%20and%20Email%20F

AQs.pdf.

181

Letter from Pat A. Cipollone, Counsel to the President, to Henry Kerner, Special Counsel, U.S. Office of Special

Counsel, at 5 (June 11, 2019).

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54

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Act statutes and regulations when using social media.

182

Like many advisory opinions, it

describes conduct that OSC has concluded would violate the Hatch Act. OSC’s advisory

function is a critical component of the overall statutory scheme that helps to alleviate any

potential First Amendment concerns associated with the Hatch Act and prevent violations before

they occur.

183

OSC met repeatedly with the Trump White House to discuss senior officials’ social

media accounts. OSC also issued warning and cure letters to Trump administration officials

regarding their social media usage, and its second report to the president describing Hatch Act

violations by Kellyanne Conway comprehensively addressed how her use of social media

violated the Hatch Act. But the violations continued—including by Ms. Conway—on accounts

that were purportedly “personal” accounts but that Trump administration officials used for

official purposes.

184

For example, OSC substantiated a complaint against Advisor to the

President Ivanka Trump.

185

Ms. Trump used her @IvankaTrump Twitter account for substantial

official government activity and also to promote numerous candidates for partisan political

office.

186

OSC concluded that because Ms. Trump used the Twitter account in her official

capacity, she violated the Hatch Act by also using it to engage in political activity. However, the

lack of any regulations or examples addressing the use of social media accounts for political

activity—and, in particular, purportedly “personal” social media accounts—weakened OSC’s

position in the eyes of the White House and allowed the White House to claim that there was no

basis for OSC’s position.

The Trump administration’s argument regarding OSC’s authority to issue advisory

opinions is incorrect, but the fact that the administration was able to raise it in the first place

exposes the problems inherent in OSC’s lack of rulemaking authority. If OSC had the authority

to issue Hatch Act regulations, then it would do so as necessary to respond to changing factual

and legal circumstances, such as the increasing prevalence of social media. Without that

authority, OSC’s Hatch Act enforcement efforts remain vulnerable to those who use the absence

of certain examples in the Hatch Act regulations as a defense for engaging in prohibited conduct.

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182

Hatch Act Guidance on Social Media (Revised Feb. 2018),

https://osc.gov/Documents/Hatch%20Act/Advisory%20Opinions/Federal/Social%20Media%20Guidance.pdf.

183

See U.S. Civil Serv. Comm’n v. Nat’l Assoc. of Letter Carriers, 413 U.S. 548, 580 (1973).

184

In a related context, the Second Circuit held that during President Trump’s term as president, his former

@realDonaldTrump Twitter account was not a “private, personal account” but rather an official government account

because it was used to communicate and interact with the public about the administration and make announcements

about matters related to official government business. Knight First Amendment Institute at Columbia University v.

Trump, 928 F.3d 226, 234-36 (2019), vacated as moot, 141 S. Ct. 1220 (2021). OSC uses a similar analysis to

determine whether a purportedly personal account is being used for official purposes such that the Hatch Act

prohibits the owner of the account from engaging in political activity on the account. See Hatch Act Guidance on

Social Media 8.

185

OSC File No. HA-19-004116.

186

For example, Ms. Trump used her @IvankaTrump Twitter account to repeatedly promote the campaigns of U.S.

Senate candidates David Perdue, e.g., @IvankaTrump, Twitter (Jan. 2, 2021),

https://twitter.com/IvankaTrump/status/1345529064690495493, Kelly Loeffler, e.g., @IvankaTrump, Twitter (Dec.

27, 2020), https://twitter.com/IvankaTrump/status/1343298900472561670, and Joni Ernst, @IvankaTrump, Twitter

(Nov. 2, 2020), https://twitter.com/IvankaTrump/status/1323424027516481536, along with the presidential

campaign of President Trump, e.g., @IvankaTrump, Twitter (Nov. 2, 2020),

https://twitter.com/IvankaTrump/status/1323516565514452993. She also regularly tweeted or retweeted multiple

times per day about matters within her official portfolio as a government employee.

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This challenge could be resolved by either a statutory amendment expressly granting OSC

rulemaking authority for the Hatch Act or a determination within the executive branch that such

rulemaking authority should be vested with OSC.

187

5. Existing law is unclear with respect to which portions, if any, of the White House

may be used for public partisan political events and who may authorize such uses

OSC received hundreds of Hatch Act complaints regarding those portions of the 2020

Republican National Convention (RNC) that were held at the White House. The complaints

related to, among other things, RNC activities held in outdoor spaces, such as the South Lawn

and the Rose Garden. OSC also received a complaint about the use of a conference room in the

Eisenhower Executive Office Building (EEOB), which is adjacent to the White House, on

election day as a campaign “war room.” While the underlying principles of the Hatch Act seem

to suggest that using the White House or its grounds for partisan political events or to host a

campaign “war room” should be prohibited, the applicable statutes and regulations are

ambiguous.

Section 7324 of Title 5 states that an employee may not engage in political activity while

“in any room or building occupied in the discharge of official duties by an individual employed

or holding office in the Government of the United States or any agency or instrumentality

thereof.”

188

The statute does not, on its face, restrict political activity outdoors on federal

property. The attendant Hatch Act regulation, however, states that a room or building occupied

in the discharge of official duties “includes, but is not limited to . . . [p]ublic areas . . . of

buildings under the custody and control of the” General Services Administration (GSA).

189

The

GSA defines a “public area” as “any area of a building under the control and custody of GSA

that is ordinarily open to members of the public, including lobbies, courtyards, auditoriums,

meeting rooms, and other such areas not assigned to a lessee or occupant agency.”

190

Finally, the

regulation also provides that a room or building occupied in the discharge of official duties “does

not include rooms in the White House, or in the residence of the Vice President, which are part

of the Residence area or which are not regularly used solely in the discharge of official

duties.”

191

Thus, the statutory restriction refers only to indoor areas and does not appear to have any

exceptions, while the regulatory definition “includes but is not limited to” certain outdoor areas

under the custody and control of the GSA that are ordinarily open to members of the public and

excludes areas of the White House not “regularly used solely in the discharge of official duties.”

It is unclear whether OPM, in writing that the definition was “not limited to” certain outdoor

areas such as courtyards, intended for other outdoor areas to also be off limits for political

activity.

192

It is also unclear whether the White House is even a room or building under the

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187

OPM’s authority to issue Hatch Act regulations is based upon a legal opinion from the Department of Justice and

not expressly granted by statute. See 18 U.S. Op. Off. Legal Counsel 1, 6 (1994).

188

5 U.S.C. § 7324(a)(2) (emphasis added).

189

5 C.F.R. § 734.101.

190

41 CFR 102-71.20 (emphasis added).

191

5 C.F.R. § 734.101.

192

It is also unclear whether the White House is even a room or building under the custody and control of the GSA

such that its outdoor spaces would be treated the same as outdoor spaces in GSA-controlled buildings.

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56

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custody and control of the GSA such that its outdoor spaces would be treated the same as

outdoor spaces in GSA-controlled buildings. And finally, it is unclear what it means for an area

of the White House to be “regularly used solely” for official duties. Given these ambiguities,

OSC was unable to conclude that RNC events held at the White House were held in a “room or

building occupied in the discharge of official duties” such that federal employees would have

been prohibited from participating in those events.

The complaints regarding a campaign “war room” in the EEOB presented similar

challenges. As an initial matter, unlike the White House—portions of which are excluded from

the definition of a federal room or building for purposes of the Hatch Act—the entirety of the

EEOB is a federal room or building in which most federal employees are prohibited from

engaging in political activity. But the complaints OSC received about political activity in the

EEOB concerned political activity by a political party, which is a private organization, rather

than by federal employees. This raises two principal questions. The first is whether the Hatch

Act applies to employees of private organizations or other nonfederal entities. It does not, and

they are therefore not prohibited by the Hatch Act from engaging in political activity on federal

property.

193

The second is whether the Hatch Act prohibits federal employees from using their

official authority to authorize use of the EEOB or other federal workplaces for campaign-related

activities. It does. However, the president and the vice president are specifically exempt from

the Hatch Act.

194

Because neither is covered by the Hatch Act, there is no Hatch Act violation if

either the president or vice president authorizes nonfederal entities to use space inside the EEOB

for partisan political activity.

195

While this appears inconsistent with Congress’s expressed

intent that the Hatch Act bar political activity in the federal workplace,

196

such activity by

nonfederal entities is currently not proscribed by the Hatch Act when the use is authorized by the

president or the vice president. These related challenges likely will require a statutory fix

clarifying in which areas of the White House grounds employees are prohibited from engaging in

political activity and under what circumstances, if any, such areas may be used by nonfederal

employees for political activity.

6. OSC has no clear mechanism for obtaining reimbursement for taxpayers when a

government official engages in taxpayer-funded campaign activity while on official

government travel

The Hatch Act permits certain high-level officials to engage in political activity while on

duty provided that, as stated in 5 U.S.C. § 7324(b)(1), the costs associated with that political

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193

The Hatch Act only applies to federal civilian executive branch employees and to certain state and local

government employees. Thus, while other laws may govern the conduct on federal property of those who are not

federal employees, the Hatch Act does not.

194

5 U.S.C. § 7322(1).

195

OSC asked the Trump White House who authorized use of the EEOB by the Trump campaign but did not receive

an answer.

196

E.g., 139 Cong. Rec. 15,739 (July 15, 1993) (statement of Sen. Glenn) (Passage of the Hatch Act Reform

Amendments of 1993 would mean “no political activity on the job. There are no exceptions to that. There will be

no political activity of any kind on the job.”); Statement on Signing the Hatch Act Reform Amendments of 1993, 2

Pub. Papers 1696 (Oct. 6, 1993) (Under the Hatch Act Reform Amendments of 1993, “all political activity in the

Federal workplace will be prohibited.”).

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57

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activity are not paid for with U.S. Treasury funds.

197

But when Treasury funds are used to pay

for political expenses, OSC is authorized by 5 U.S.C. § 1216(a) to investigate and seek

disciplinary or corrective action for violations of that provision of § 7324. Yet, most such

violations are committed by PAS and, as described above, OSC cannot pursue disciplinary

against PAS at the MSPB. Therefore, there is no clear way to obtain corrective action, i.e.,

reimbursement to the government, against either a current or former PAS in such cases.

198

Thus,

even if OSC concludes that a PAS grossly misused U.S. Treasury funds for campaign activities

in violation of the Hatch Act, OSC is unable to recover those costs for taxpayers unless the PAS

agrees to voluntarily reimburse the government.

This issue arose during the Trump administration when then-Secretary of Agriculture

Sonny Perdue failed to reimburse the U.S. Treasury for costs associated with his political activity

despite two OSC requests that he do so. In August 2020, Secretary Perdue gave a speech

supporting President Trump’s reelection. He delivered the speech while in his official capacity

and on taxpayer-funded travel. On October 8, 2020, OSC wrote to Secretary Perdue, explained

that he violated the Hatch Act by engaging in political activity while speaking in his official

capacity and on official travel, and told him that the U.S. Treasury needed to be reimbursed for

the costs associated with that political activity.

199

A senior U.S. Department of Agriculture (USDA) political appointee responded to OSC’s

letter on December 1, 2020. That appointee made legally unsupported defenses of Secretary

Perdue’s conduct.

200

OSC rebutted the appointee’s arguments in a letter dated December 14,

2020, and reiterated that Secretary Perdue needed to reimburse the U.S. Treasury for the costs of

his political activity. On January 8, 2021, a second USDA political appointee emailed OSC to

say that the appointees “st[ood] by [their] argument and anticipate[d] that no reimbursement will

occur.” To date, OSC has no evidence that Secretary Perdue has reimbursed the U.S. Treasury.

A statutory amendment allowing OSC to seek reimbursement from the traveling official

personally before the MSPB in such cases would help to ensure that taxpayer dollars are not

improperly used for partisan political purposes.

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197

See 5 U.S.C. § 7324(b)(1); 5 C.F.R. § 734.503.

198

There are two obstacles to seeking corrective action against a PAS at the MSPB. For a PAS who is currently a

government employee, the MSPB cannot use its usual enforcement tool of withholding salary because PAS are

specifically excluded from the salary withholding provision, 5 U.S.C. § 1204(e)(2)(A); for a PAS who is a former

government employee, the MSPB likely lacks jurisdiction. See Special Counsel v. Owens, 11 M.S.P.R. 128, 129-30

(1982) (dismissing for lack of jurisdiction an OSC complaint filed after an individual left government service). But

see Special Counsel v. Malone, 84 M.S.P.R. 342, 362-63 (1999) (suggesting in dicta that, at least in Hatch Act

cases, the Board’s jurisdiction attaches at the time of the violation rather than when the complaint is filed).

199

Pursuant to 5 C.F.R. § 734.503(a), Secretary Perdue was required to reimburse the U.S. Treasury for those costs

“within a reasonable period of time.” This rule ensures that U.S. taxpayers are not improperly subsidizing political

campaigns, and in particular those campaigns supporting or supported by an incumbent president.

200

USDA argued, without citing to any legal authority, that statements “of a factual, predictive, and/or policy-based

nature . . . do not implicate the Hatch Act’s prohibitions,” echoing the Trump White House’s position that

“assertions of fact . . . in the context of policy discussions” are not prohibited by the Hatch Act. OSC stands on

ample legal authority when stating that such statements are political activity if they also advocate for the success or

failure of a political party, partisan political group, or candidate for partisan political office. See supra Part III(3).

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7. The MSPB has not had a quorum since January 2017

The MSPB, before which OSC prosecutes alleged Hatch Act violations, ordinarily

consists of three Senate-confirmed presidential appointees. However, the MSPB has not had a

two-member quorum since January 6, 2017, and it has not had a single member since March 1,

2019. The lack of a quorum on the MSPB has had two primary effects upon OSC’s Hatch Act

enforcement. First, OSC is unable to obtain precedent-setting judicial decisions or disciplinary

action in cases where an employee chooses to appeal an adverse decision by an administrative

law judge (ALJ) to the MSPB. And second, OSC is unable to enforce subpoenas issued pursuant

to its statutory authority.

Only the MSPB can issue precedential decisions interpreting the Hatch Act. Initial

decisions issued by an ALJ, while applicable to a particular case, are not binding in future

prosecutions.

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OSC relies upon the MSPB’s precedential decisions to clarify how the Hatch

Act applies in new or unanticipated circumstances, such as in the context of political activity on

social media. With no quorum on the MSPB and no ability to issue Hatch Act regulations, OSC

is forced to rely on increasingly outdated law when issuing advisory opinions. While OSC

believes that each of its advisory opinions is an accurate statement of the law, an administration

determined to push back against an OSC advisory opinion can point to the lack of recent case

law or regulations to justify its opposition. OSC’s experience dealing with the Trump

administration shows that this is not merely an abstract risk.

More broadly, the lack of a quorum on the MSPB means that employees can postpone the

consequences of their Hatch Act violations by appealing an adverse initial decision. If the ALJ

presiding over a Hatch Act case agrees that the subject employee violated the law, then the ALJ

can order disciplinary action pursuant to 5 U.S.C. § 7326. However, if an employee appeals that

decision then the disciplinary action is stayed until the appeal is heard by the full MSPB. In one

particularly egregious case, an employee was ordered removed from his job in 2017 for

repeatedly running for partisan political office in violation of the Hatch Act despite warnings

from both his agency and OSC.

202

The employee appealed and was allowed to remain in his job.

In 2018, he again violated the Hatch Act by running for that same office. Yet the employee

remains in the federal workforce, despite the removal order, because there is no MSPB quorum

to hear his appeal. That appeal is still pending.

Finally, the lack of an MSPB quorum also limits OSC’s investigative tools. Pursuant to 5

U.S.C. § 1212(b)(2), OSC may issue subpoenas in connection with cases that it is investigating.

However, OSC cannot independently enforce its subpoenas. Instead, it must request that the

MSPB seek enforcement of the subpoena through the relevant United States district court.

Because the MSPB had no members during the time frame relevant to this report, OSC could not

effectively wield its subpoena power. Ensuring that there are always at least two confirmed

MSPB members would resolve several of the challenges described in this Part. Furthermore, a

statutory amendment authorizing OSC to seek enforcement of its subpoenas in Article III courts

in the event that the MSPB does not have a quorum would guard against a recurrence of these

issues if the MSPB were to ever lack a quorum in the future.

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201

5 C.F.R. § 1201.113.

202

Special Counsel v. Arnold, MSPB Docket No. CB-1216-16-0017-T-1, 2017 MSPB LEXIS 128 (Jan. 10, 2017).

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PART V: CONCLUSION

OSC received hundreds of complaints alleging Hatch Act violations by senior Trump

administration officials during the 2020 election cycle. This report is the culmination of OSC’s

investigation of those complaints. As described in Part III, OSC has concluded that at least 13

different Trump administration officials violated the Hatch Act on one or more occasions. Both

because of the positions that the former officials held and the fact that they are no longer

government employees, OSC has no statutory authority to pursue these cases beyond issuance of

this report.

This report, however, is not the only Hatch Act enforcement action that OSC took against

senior Trump administration officials during the 2020 election cycle. OSC issued reports to

then-President Trump detailing Hatch Act violations by some of these same officials and

recommending disciplinary action, including, in the case of Ms. Conway, recommending

removal.

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OSC also sought reimbursement for the government where it determined that U.S.

Treasury funds were used for political travel,

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and, when possible, pursued disciplinary action

before the Merit Systems Protection Board.

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OSC undertook these Hatch Act enforcement

efforts notwithstanding the enforcement challenges described in Part IV.

Congress’s judgment in passing the Hatch Act was that “partisan political activities by

federal employees must be limited if the Government is to operate effectively and fairly,

elections are to play their proper part in representative government, and employees themselves

are to be sufficiently free from improper influences.”

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None of those goals is achievable if the

power of the federal government is used to campaign for candidates, as happened during the

2020 election cycle. OSC’s objective with this report is to use these violations to educate

employees about Hatch Act-prohibited activities, and describe the enforcement challenges that

OSC confronted in investigating the violations, in the hope of preventing similar violations from

occurring in the future. Moving forward, OSC will continue to advise on and enforce the Hatch

Act, consistent with its statutory authorities, in furtherance of Congress’s intent to separate the

nonpartisan administration of government from partisan political campaigns, and OSC hopes that

Hatch Act enforcement can be improved by addressing the enforcement challenges described in

this report.

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203

See Report of Prohibited Political Activity Under the Hatch Act, OSC File No. HA-20-000279 (Peter Navarro)

(Nov. 18, 2020); Report of Prohibited Political Activity Under the Hatch Act, OSC File Nos. HA-19-0631 & HA-

19-3395 (Kellyanne Conway) (May 30, 2019); Report of Prohibited Political Activity Under the Hatch Act, OSC

File No. HA-18-0966 (Kellyanne Conway) (Mar. 6, 2018).

204

See supra notes 223-24 and accompanying text (describing OSC’s attempts to seek reimbursement for costs the

U.S. government paid in connection with partisan political activity).

205

See Special Counsel v. Patton, MSPB Docket No. CB-1216-21-0007-T-1, 2021 MSPB LEXIS 1118 (Mar. 30,

2021).

206

U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 564 (1973).