Outside the Beltway

Office of Special Counsel Recommends Kellyanne Conway Be Fired

Presidential adviser Kellyanne Conway stands credibly accused of multiple violations of Federal law. The President will do nothing about it.

Doug Mataconis · Friday, June 14, 2019 · 5 comments

The Office of Special Counsel has sent a lengthy report to President Trump recommending that he fire Counselor to the President Kellyanne Conway for what the office’s report describes as multiple and repeated violations of the Hatch Act due to her ongoing effort to engage in partisan advocacy while holding a government office:

WASHINGTON — An independent government agency recommended on Thursday that President Trump fire Kellyanne Conway, his White House counselor, for repeated violations of an ethics law barring partisan politics from the federal workplace.

In a letter accompanying a report to Mr. Trump, the agency called Ms. Conway a “repeat offender” of the Hatch Act, which prohibits federal employees from engaging in campaign politics at work, saying that her flagrant defiance of the law justified her dismissal from the White House.

“As a highly visible member of the administration, Ms. Conway’s violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” said the letter to the president, signed by Henry J. Kerner, the head of the agency. “Her actions erode the principal foundation of our democratic system — the rule of law.”

The agency, called the Office of Special Counsel, enforces the Hatch Act and is not related to Robert S. Mueller III, the former special counsel who investigated Russia’s interference in the 2016 election. Despite its official mission, the office has no power to force Ms. Conway’s dismissal, and the White House quickly made clear that Mr. Trump would not follow its suggestion.

Ms. Conway had no immediate reaction, but she has previously scorned the office as irrelevant. “Blah, blah, blah,” she told a reporter who noted her past Hatch Act violations a couple of weeks ago. “If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”

The White House on Thursday released an 11-page memo from Pat A. Cipollone, the White House counsel, rejecting the 17-page report by Mr. Kerner, the special counsel, who was appointed in 2017 by Mr. Trump.
“OSC’s draft report is based on multiple fundamental legal and factual errors, makes unfair and unsupported claims against a close adviser to the president, is the product of a blatantly unfair process that ignored statutory notice requirements, and has been influenced by various inappropriate considerations,” Mr. Cipollone wrote.

Among other things, he argued that the special counsel was applying an overreaching interpretation of the law to target the president’s aide, particularly by applying unjustified standards to social media.

“OSC’s overbroad and unsupported interpretation of the Hatch Act risks violating Ms. Conway’s First Amendment rights and chills the free speech of all government employees,” Mr. Cipollone wrote. The call for Ms. Conway’s firing, he added, “is as outrageous as it is unprecedented.”

Outside ethics watchdog groups praised the special counsel’s report and criticized Ms. Conway for disregarding the law. “It’s untenable for a senior counselor to the president to decide that civil law is no longer something she is bound by,” said Liz Hempowicz, director of public policy at the Project on Government Oversight, one of the groups. “No one is above the law.”

The House Oversight and Reform Committee’s Democratic leadership announced that it will hold a hearing on Ms. Conway’s actions on June 26 and invite her to testify. Mr. Trump has sought to block current and former aides from appearing before a variety of House committees on an array of issues, so this could open one more front in that broader fight between executive and legislative branches.

At issue are Ms. Conway’s media appearances attacking Democrats running for their party’s nomination to challenge Mr. Trump next year. The Office of Special Counsel concluded that she “violated the Hatch Act on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”

Among other instances, the report highlighted Ms. Conway’s comments on Fox News attacking candidates like former Vice President Joseph R. Biden Jr., Senators Bernie Sanders of Vermont, Elizabeth Warren of Massachusetts, Cory Booker of New Jersey and Amy Klobuchar of Minnesota and former Representative Beto O’Rourke of Texas.

While identified as a White House official and speaking from the White House grounds, she accused Ms. Warren of “lying” about her ethnicity, said Mr. Sanders’s “ideas are terrible for America” and asserted that Mr. Biden had “no vision.” On one show, she said she had “yet to see presidential timber” among the Democrats. “I just see a bunch of presidential wood chips.”

As noted above, the Office of Special Counsel is not to be confused with Special Counsel Robert Mueller and the Russia investigation. The OSC is made up of career department employees whose job is to investigate and report on violations of the Hatch Act and certain other provisions of Federal law governing Federal employees. The head of the office is a Presidential appointee but most of the people working under him are people who have served as attorneys in the Department of Justice.

The Washington Post’s Amber Phillips has a good explainer regarding both what the Hatch Act prohibits and what Conway is accused of. Basically, though, the act is a law originally passed in 1939 that purports to prohibit government employees from engaging in certain forms of political activity while carrying out their governmental duties. The law exempts the President, Vice-President, and certain other high-ranking government officials from liability under the act, but the position that Conway holds is not included among those positions. The law also attempts to make a distinction between occasions when an individual is acting in their “official capacity” and when they are acting in a “personal capacity.”

As James Joyner noted in a post on the pending accusations against Conway back in March, the line becomes fuzzy and hard to determine when the person involved is a senior Presidential appointee such as Conway. The Office of Special Counsel seems to be taking the position that when Conway is appearing in front of cameras as a spokesperson for the White House, she is acting in her official capacity and that it is, therefore, improper for her to make partisan comments or to engage in partisan attacks.

While it’s arguably true that it’s hard to draw such a line for a person in Conway’s position, it seems hard to deny that she is speaking in her official capacity when she is doing so via a live remote from the grounds of the White House itself. There appears to be little to no court interpretation of the application of this part of the law to someone in Conway’s position, though, and I’m not aware of any Presidential adviser who has ever been charged with a violation of the act, so it’s difficult to say whether the charges that the OSC makes here have merit or whether Conway could successfully argue that she was merely exercising the same First Amendment rights that every other American citizen has.

This is not the first time that the Office of Special Counsel has admonished Conway for her partisan actions while appearing in a government capacity in the media. In March of last year, the office concluded that she had violated the act when she had argued in favor of the candidacy of Roy Moore when he was running for Senate in Alabama. During both of those instances, Conway was speaking on White House grounds with the White House as a backdrop. At that time, the office recommended that the Administration admonish and discipline Conway for her violations, but stopped short of recommending her termination. The President, however, declined to take any action at all and the matter was effectively dropped with no charges having been brought.

Greg Sargent comments on the charges, arguing that they are a perfect reminder of the moral rot inside the Administration itself:

As the OSC report emphasizes, people who work in federal agencies other than the White House have lost their jobs for doing what Conway has done repeatedly, and what she has made clear she’ll do again. But she doesn’t care, and her boss certainly doesn’t.

The Trump administration has a fundamentally different view of the law than any that came before it, Democratic or Republican. It starts at the top, with a president who spent a lifetime acting as though rules and laws don’t apply to him, who with his family perpetrated a massive tax fraud worth hundreds of millions of dollars, who brags about cheating on his taxes, who has run one scamand con after another, who says that cooperating with authorities to testify against criminal associates “almost ought to be illegal,” and who just proclaimed that if once again a hostile foreign power tries to help him in 2020, he’ll welcome the assistance.

Put that all together, along with everything else he says and does, and it’s perfectly clear that Trump believes that people who are conscientious about obeying the law are nothing more than suckers. If that’s who you go to work every day to serve, after a while you’re going to assimilate his perspective and his values.

On a day like this, it’s impossible to ignore the fact that Trump’s administration is a moral and ethical plague. It will take years before we fully understand how far the pestilence spread and what its effects have been. But Trump wouldn’t have been able to do it on his own. It’s the people who advocate for him, justify him, excuse him and imitate him — people such as Kellyanne Conway — who make the real damage possible.

Jennifer Rubin largely agrees:

Trump ran on the premise that an outsider was needed to drain the swamp. He argued that, as a (purported) billionaire, he’d be immune from temptation and influence peddling. Forget that. This is arguably the most corrupt administration in history. A former national security adviser has already pleaded guilty to a felony, the president is an unindicted co-conspirator in a plot to violate campaign-finance law, multiple officials have been forced to resign under a cloud of scandal (e.g. Scott Pruitt, Tom Price, Brock Long), nepotism has reached new lows, and the president routinely appears to violate the rule of law. That doesn’t even include Trump’s rampant efforts to obstruct justice documented in the Mueller report.

Yet Republicans defend this ethical cesspool — for what? A few judges (who they expect to vindicate Trump) and an unpopular tax cut? The crime spree and betrayal of the oaths of office that we’ve witnessed is the natural result of a party willing to shut up and enable and excuse any and all conduct for the sake of clinging to power. Not only Conway but the whole lot of them must go.

Sargent and Rubin are both correct, of course. It’s already clear that the White House will not take any action against Conway and that she will not only stay in her current position for now but will also continue to engage in the kind of violations of the law detailed in the OSC’s report. Indeed, the President acknowledged in an interview this morning on Fox News Channel that he would not fire her and that he believes the OSC is seeking to violate Conway’s First Amendment rights. The reason this is happening is clear, it’s because this President has sent the message loud and clear that he doesn’t care about ethical or legal violations by members of his Administration and that he’s going to allow them to get away with it.

As the saying goes, the fish rots from the head down and in this case, the head has been rotting for decades now.

Here is the OSC Report:

Justice Department Letter t… by on Scribd

And here’s the White House response:

White House Response to Off… by on Scribd