Labor Department ethics officers in January advised DOL spokespeople to rewrite planned tweets from Acosta and the department’s official accounts because of concerns they might violate the Hatch Act, emails show. They also asked the U.S. Office of Special Counsel for guidance on whether Acosta can promote jobs and economic data with a reference to “the @POTUS economy,” the "@POTUS job market,” or couch figures “since the election of President Trump in 2016.”
The flagged tweets, slated to run on the second anniversary of Trump’s inauguration, were later updated. The DOL Twitter account has largely steered clear of Trump-related posts since that time. Acosta continues to use the president’s favored public communication platform as a tool to promote job and economic data, often with a nod to Trump’s official account and the "@POTUS economy.”
The question isn’t whether a Trump Cabinet member and public affairs workers running an agency Twitter account can “at” the president; it’s whether they can use social media to declare that a president seeking another term in office is responsible for new jobs and wage growth using figures the agency is tasked with compiling.
“It’s troubling how much the Department of Labor sees itself as an extension of the president and the White House, as opposed to a separate agency with a long history of supporting workers regardless of the administration,” Adam Pulver, a lawyer for Public Citizen who worked at the department in the Obama administration, told Bloomberg Law.
The Hatch Act questions come as Acosta is under fire for his role as a prosecutor in a decade-old plea deal in a sex trafficking case against Miami hedge fund manager Jeffrey Epstein. A group of House Democrats and some progressive organizations have called for Acosta to step down after a federal judge said he broke the law by keeping Epstein’s accusers in the dark about the agreement.
“As President Trump moved into an election cycle, career ethics officials and public affairs staff met to discuss any changes in how the department conducted its public communications,” Eric Holland, the DOL’s Acting Assistant Secretary for Public Affairs, told Bloomberg Law. “Career ethics officials offered suggestions and performed follow-up inquiries to ensure DOL was acting in compliance with federal rules and regulations.”
#Jobs highlights since the start of @POTUS’s Administration two years ago:— Secretary Acosta (@SecretaryAcosta) January 20, 2019
✅ 150 million jobs for the first time ever
✅ 4.6 million new jobs
✅ More job openings than job seekers for nine straight months
✅ Fastest wage grow since April 2009 pic.twitter.com/FTZtuDNkIo
The situation puts a spotlight on some unanswered questions about how federal officials can use social media to promote their work without running afoul of the Hatch Act. The 80-year-old law was originally designed to combat the trading of government jobs for political favors. It bans federal employees from using “official authority or influence” to affect an election.
Acosta appears to be wading into vague territory that has some DOL ethics officials uncomfortable. That’s especially true for posts that use data compiled by the department’s Bureau of Labor Statistics to promote the president, Kathleen Clark, an ethics lawyer who teaches at Washington University in St. Louis, told Bloomberg Law.
“The Hatch Act prohibits federal officials from using government resources in order to influence the outcomes of a partisan political election, including presidential elections,” Clark said. “When federal officials engage in partisan political advocacy in their official capacity, it undermines public trust in the process.”
The labor secretary’s Twitter account has been a source of support for Trump and his policies since the Miami lawyer joined the Cabinet in 2017. Trump officially filed for re-election on the day he was sworn in, an unusually early start for such a campaign.
The Office of Special Counsel in November found that six White House officials violated the Hatch Act by using government Twitter accounts for political activity. Four of those officials were cited for using the term “MAGA"—an acronym for Trump campaign slogan “Make America Great Again"—in tweets. White House advisers Kellyanne Conway and Dan Scavino were separately cited for Hatch Act violations for using social media to weigh in on congressional elections in Alabama and Michigan.
The DOL emails were obtained in a Freedom of Information Act request by Public Citizen.
Tweets Flagged by Department
It’s not clear whether Acosta personally controls the account or if department public affairs staffers use it to tweet on his behalf.
The posts often come with references to "@POTUS” or the "@POTUS economy.” A total of 37 Acosta tweets have featured the latter phrase since November 2018. The secretary has continued to use the "@POTUS economy” and to tout data “since November 2016"—when Trump was elected—despite concerns from ethics officials.
Rob Sadler, who has worked as a DOL ethics lawyer for more than 18 years, in a January email to the Office of Special Counsel said the department flagged tweets and blog postings referencing "@POTUS.” Sadler asked for guidance on the issue, as well as the use of "@Potus economy,” “@Potus job market,” and “@Potus’s job market.” Sadler also said DOL ethics officials assumed references to “since the election of President Trump in 2016" were out of bounds.
The OSC told the Labor Department “that reference to @POTUS did not violate the Hatch Act,” according to Holland.
Labor Department ethics officials in other emails referenced OSC guidance issued in March 2018, banning the use of #MAGA and "#ResistTrump” in social media posts from official government accounts. The guidance also states the Hatch Act ban on political activity “is broad and encompasses more than displays or communications...that expressly advocate for President Trump’s reelection.”
Peter Constantine, a career DOL ethics lawyer, in January advised department public affairs staff to “avoid reference to the President’s election or potential reelection in official statements, including those on social media.” Constantine also said he wasn’t aware of any ban on using "@POTUS” in tweets, but cautioned that “it should not be used in such a way as to appear to advocate for or against the President’s reelection now that he is a candidate.”