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On the Job and on the Stump, Cabinet Officials Flout Hatch Act

Oct. 14, 2020, 12:28 PM

President Donald Trump and Agriculture Secretary Sonny Perdue appeared at a vegetable packing facility in Mills River, N.C., on Aug. 24 with a core message of announcing a $1 billion boost to the Farmers to Families Food Box program, which sends food to those in need.

But Perdue raised eyebrows when he told the crowd that programs like Farmers to Families are “what’s going to continue to happen—four more years—if America gets out and votes for this man, Donald J. Trump.”

The Office of Special Counsel ruled on Oct. 8 that Perdue’s comments violated the 81-year-old Hatch Act, which clamps down on political activities of government employees while they are on the job.

Under Trump, allegations of violations of the act have come at a rate not seen in previous administrations, according to interviews with former officials of both parties, but there have been few consequences.

“The Hatch Act is in disuse, and it’s long ago fallen into disuse,” said David Gergen, a professor of public service at the Harvard Kennedy School who served in the Nixon, Ford, Reagan, and Clinton administrations. “But the violation of the norms will cause lasting damage. The real damage is to the office.”

Across the Trump administration, allegations of Hatch Act violations span multiple agencies. They include Education Secretary Betsy DeVos, who came under fire for criticizing Democratic nominee Joe Biden; Acting Department of Homeland Security Secretary Chad Wolf, who took part a naturalization ceremony shown at the GOP convention; and Secretary of State Mike Pompeo’s video speech from Jerusalem to the convention.

White House Chief of Staff Mark Meadows said in August that “nobody outside of the Beltway really cares” about Hatch Act violations, according to Politico.

‘Not Sufficient’

In Perdue’s case, OSC said it would consider the matter closed if the U.S. Treasury is reimbursed for the cost of his appearance.

Kathleen Clark, a law professor at Washington University in St. Louis, called that remedy “better than nothing, but not sufficient.”

In her view, the reimbursement does address the problem of improper use of federal money to support political campaigning. “But it does not address another aspect of the violation—Perdue’s invocation of federal power to influence the presidential election,” Clark said.

The Hatch Act has historically been honored by high-ranking government officials of both parties simply because they respected its purpose, Gergen said.

But very rarely are government officials punished for violations. In June 2019, the Office of Special Counsel found that Counselor to the President Kellyanne Conway repeatedly violated the Hatch Act “by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media.”

The OSC recommended Conway be removed from federal service, but the White House declined to do so, and she remained on the job.

Few Teeth in the Law

Two agencies have a role in enforcing Hatch Act violations: the Justice Department, which handles criminal cases, and the OSC, which takes on civil violations, according to Clark.

The legal standard is whether an official is deemed to be using his or her official authority to affect a federal election, Clark said. Penalties can include a fine, removal from office, or even jail time.

But while the OSC sometimes makes Hatch Act findings—as it did in 2019, when it concluded former Interior Secretary Ryan Zinke broke the law by tweeting a picture of himself wearing “Make America Great Again” socks—the Justice Department rarely does, Gergen said.

“It’s not like [Attorney General] Bill Barr is going to prosecute Sonny Perdue,” said Clark.

Hatch Act violations also disappear once a government official resigns his or her job, according to Chris Lu, former White House Cabinet secretary for President Barack Obama.

The Justice Department didn’t respond to interview requests.

Perdue, DeVos Under Fire

The Perdue incident was especially striking because of how blatant his remarks were in support of Trump. At one point he told the president that Mills River citizens who greeted his arrival “and many others are gonna vote for you for four more years in 2020.”

Watchdog group Citizens for Responsibility and Ethics in Washington sent a complaint to the Office of Special Counsel on Aug. 24 to investigate whether the comment constituted a possible violation of the Hatch Act. CREW Deputy Director Donald Sherman called Perdue’s behavior “beyond inappropriate for someone in his position.”

Perdue’s comment also spurred six Democratic House members to send an Aug. 28 letter to Agriculture Department Ethics Director Stuart Bender alleging a “blatant violation of federal law.”

The Agriculture Department didn’t respond to a request for comment.

Craig Holman, government affairs lobbyist for watchdog group Public Citizen, said Perdue’s comments constitute Hatch Act violations because “that’s a use of official position, official resources, and taxpayer dollars to try to promote the reelection of Donald Trump.”

Almost 50 members of Congress also called on Perdue in an Aug. 14 letter to stop including letters signed by Trump on White House letterhead in each food box.

Another example came on Sept. 2, when DeVos gave an interview to Fox News in which she called Democratic presidential nominee Joe Biden’s opposition to her school choice agenda “shameful.”

The Education Department shared the interview in an official email later that day, prompting the Checks and Balances Project, a watchdog blog, to file a Hatch Act complaint. Scott Peterson, executive director of the site, said the interview stood out because the department “used government channels to push a political attack.”

“Not only is she personally sending a message about Joe Biden, it’s also giving a signal about the way in which the Hatch Act is viewed by this administration,” said David Bergeron, a former acting assistant secretary at the Education Department during the Obama administration.

Michael Petrilli, president of the conservative Thomas B. Fordham Institute and a school choice advocate, said using taxpayer funds to distribute the Fox interview on an email list clearly crossed a line.

“Somebody should have asked the question, ‘Isn’t this illegal under the Hatch Act?’” Petrilli said.

An Education Department spokeswoman didn’t respond to a request for comment about the DeVos interview or email.

DHS, HHS Questioned

Wolf’s participation in a naturalization ceremony that was taped and later broadcast at the Republican National Convention also prompted swift calls for an investigation into whether he violated the act.

House Homeland Security Chairman Rep. Bennie Thompson (D-Miss.) called Wolf’s actions an “unprecedented politicization of the naturalization ceremony” in a letter to the Office of Special Counsel.

Congressional Democrats have also raised questions about Health and Human Services Secretary Alex Azar. Rep. Raja Krishnamoorthi (D-Ill.), a key member of the House Oversight Committee, sent letters to the Centers for Disease Control and Prevention and the Food and Drug Administration on Monday, probing the White House’s influence over their regulations and communications.

Krishnamoorthi’s letters seek information about how the White House has altered public health messages and HHS regulations in recent months so they don’t support criticism of the president’s handling of the coronavirus pandemic or harm his reelection prospects.

The letter also asks for information about plans for a $250 million public health campaign that “appears to be a political propaganda campaign just two months before a presidential election.”

The head of the Centers for Disease Control and Prevention told lawmakers in September that campaign will use CDC funds. A contract for the campaign says it will seek to “defeat despair and inspire hope” about the pandemic.

Blurred Lines

Cabinet secretaries aren’t forbidden from giving political speeches, as long as they’re not doing so on their official government work hours, said Kathryn Tenpas, a senior fellow at the Miller Center and author of a 2004 book about how presidents run for reelection.

But both Tenpas and Lu said that, for Cabinet officials and most White House staff, “the theory is you’re never off the clock. That doesn’t mean you can’t do political events, but you need to be very clear that you’re now taking off your official hat and speaking in your private role.”

Cabinet officials can take steps to try to make clear they’re not speaking in their official roles, such as paying for their own travel and not being introduced as “Secretary,” said Lu, now a senior fellow at the University of Virginia’s Miller Center.

The Trump administration has also broken from long-established norms in the sheer number of politically inflected remarks its Cabinet chiefs have made, said Lu.

Other officeholders, such as the attorney general and secretary of State, generally abstain from the campaign for fear of politicizing their departments, said Tenpas, who also serves as a nonresident senior fellow at the Brookings Institution.

But that norm has also been tested under Trump, notably when Pompeo delivered a video speech from Jerusalem to the Republican National Convention Aug. 25 praising the president’s foreign policy, sparking a formal complaint from CREW.

“For years we had the proposition that politics stopped at the water’s edge,” said Gergen.

Close to the Line

In some cases, cabinet chiefs have come close to the line without crossing it. EPA Administrator Andrew Wheeler fell into that category when he spoke about the agency’s future at the Nixon Library in Whittier, Calif., on Sept. 3, according to Clark.

Although Wheeler spoke about the agency’s plans in a second Trump term, he never explicitly called for Trump’s reelection, Clark said.

Nevertheless, Christine Todd Whitman, the former New Jersey governor who led the EPA under the George W. Bush administration, said Wheeler’s recent penchant of sharply comparing the Trump administration’s record to previous administrations strikes her as unseemly.

“He’s gotten quite personal, in a different way than I’ve noticed people do it before,” said Whitman, now president of the Whitman Strategy Group consulting firm. “The personal criticism he’s leveled at previous administrations is different from what we’ve seen before.”

During her time at the head of the EPA, Whitman said she was careful not to criticize previous agency chiefs.

“You just don’t go around criticizing the others,” she said.

— With assistance from Courtney Rozen.

To contact the reporters on this story: Stephen Lee in Washington at stephenlee@bloombergindustry.com; Megan U. Boyanton in Washington at mboyanton@bgov.com; Andrew Kreighbaum in Washington at akreighbaum@bgov.com; Shaun Courtney in Washington at scourtney@bgov.com; Alex Ruoff in Washington at aruoff@bgov.com

To contact the editors responsible for this story: John Dunbar at jdunbar@bloomberglaw.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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