News Roundup: The Trump Administration and the Hatch Act

White House counselor Kellyanne Conway

Like many norms in the Trump era, the prohibition on federal employees engaging in political activity while at work has been routinely tested by the administration, and one of the most prominent offenders over the past two years has been White House counselor Kellyanne Conway.

On Thursday, the Office of Special Counsel (OSC) recommended that she be removed from her position for her repeated violations of the Hatch Act, the federal law that prohibits political statements, such as her disparagement of Democratic presidential candidates in interviews, on the part of government workers. In an interview on Fox and Friends on Friday morning, President Donald Trump said that he had no intention of firing Conway.

Special Counsel Henry Kerner — a Trump appointee whose office enforces ethics laws (and is not related to the Mueller investigation) — issued the recommendation in response to complaints from the Campaign Legal Center and Citizens for Responsibility and Ethics in Washington. As he wrote: “Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system — the rule of law.”

Federal employees have indeed been getting mixed messages on what is and is not permissible speech while at work. In November 2018, the OSC provided official guidance on Hatch Act compliance that said use of the terms “resist” or “resistance” was prohibited political activity, as was expressing support for impeachment of the president, but its lack of clarity and its breadth could have a chilling effect on employees’ free speech.

The other troubling aspect of the guidance was its focus on speech associated with left-of-center or progressive viewpoints, risking using the Hatch Act as a tool to intimidate public servants whose views differ from the current administration. We launched an investigation to see whether other political slogans or terms associated with the president’s re-election campaign — terms like “MAGA” or “Trump Train” — were also being restricted under the Hatch Act. This week we filed another Freedom of Information Act request with the Department of Agriculture, asking for communications that contain such terms.

The current administration has provided a number of examples of potential Hatch Act violations besides Conway’s. Last year, American Oversight called for an investigation after news broke that former Acting Attorney General Matthew Whitaker had accepted campaign contributions while working at the Justice Department, and OSC opened a case file to look into it. Earlier that year, we also called for investigation of FCC Commissioner Michael O’Rielly, who promoted the Trump campaign while appearing in his official capacity.

American Oversight is continuing its investigation of potential Hatch Act violations and federal misconduct across the administration. Here’s what else has happened this week:

McConnell and the Energy Department: Politico reported earlier this week, based partly on emails obtained by American Oversight, that Transportation Secretary Elaine Chao gave preferential treatment to project requests and grant applications favored by Senate Majority Leader Mitch McConnell, to whom she is married. We’re also investigating McConnell’s influence at the Department of Energy — Secretary Rick Perry and McConnell, a vocal opponent of energy regulations, have attended energy and commerce events together, including in McConnell’s home state of Kentucky. And we’re asking the Federal Energy Regulatory Commission for top officials’ communications with McConnell or his office.

New Lawsuit: Chao was also in the news last week for her role in promoting her family’s shipping company in China. We obtained her calendars from 2017, which reveal that she held a private photo session with her father and employees of the Chao family business at the Department of Transportation. We filed a FOIA request for those photos, and are suing the department on behalf of Restore Public Trust for records of communications between DOT officials and representatives of her family’s company, the Foremost Group.

Transgender Protections: A new rule proposed by the Department of Housing and Urban Development that would weaken protections for transgender people who live in federally funded shelters was issued the day after Secretary Ben Carson testified that HUD did not anticipate changing the rule prohibiting discrimination based on sexual orientation or identity in shelters. We want to know more about how Carson prepared for his committee hearing, and about the origins of the proposed policy change.

Housing for Undocumented Immigrants: At that same House Financial Services Committee hearing in late May, Carson defended the administration’s proposal to deny federally subsidized housing to undocumented immigrants. The policy, which requires all members of a household to be of “eligible immigration status,” could displace at least 55,000 children. We filed a FOIA request to learn more about any outside influence on the policy change.

Project Blitz: A coordinated effort by religious activists known as Project Blitz has been working in multiple states to advance legislation that promotes Christian messaging and education in public schools as well as other measures that could allow for discrimination against LGBTQ people — with the approval of Trump. We filed FOIA requests this week with the Departments of Education and Health and Human Services for communications with supporters of Project Blitz.

Zekelman Influence: Last year, a pro-Trump super PAC received $1.75 million from Zekelman Industries, North America’s largest steel-tube manufacturer run by Canadian billionaire Barry Zekelman. In its May story about the donation, The New York Times also noted that Zekelman’s lobbying apparatus has cultivated extensive ties with the Trump administration in an effort to shape trade policy, with Zekelman and his lobbyists having held meetings with senior officials at the Department of Commerce and the Office of the United States Trade Representative (USTR), as well as with President Trump and his son Donald Trump Jr. We’re asking for communications between Zekelman-tied entities and Commerce, USTR and CBP.

Loan for Kushner Companies: Last month, Trump’s son-in-law Jared Kushner’s real-estate firm received an $800 million loan that was backed by the government-owned Freddie Mac. The loan, issued by Berkadia Commercial Mortgage, will be used to purchase apartments in Maryland and Virginia. We’ve asked the Federal Housing Finance Agency for emails between FHFA officials and Kushner Companies representatives to determine whether outside influence shaped the decision to back the company’s loan.

Trump’s Tax Returns: According to the Treasury Department, Secretary Steven Mnuchin’s refusal to comply with House Ways Means Chair Richard Neal’s request for the president’s tax returns is based on a Justice Department legal analysis — even though the IRS issued a memorandum concluding that such documents must be produced unless there is a claim of executive privilege. We’ve asked the Justice and Treasury Departments for records of and communications about that legal analysis or the IRS memo.

Otto Warmbier Ransom: In 2017, as reported in April by the Washington Post, North Korea issued a $2 million bill for the medical care of imprisoned American student Otto Warmbier — essentially demanding ransom before allowing the United States to fly Warmbier home. According to the Post, Trump authorized a U.S. envoy to sign an agreement to pay the bill, which eventually went to the Treasury. The president and National Security Adviser John Bolton have claimed that the bill was never paid, but we’re asking the Treasury and the State Departments to provide talking points about the possible transfer of value (monetary or otherwise) — and for records of any such transfer if it did take place.

Blackstone’s Influence: In 2017, the private equity firm Blackstone, which has extensive ties to the Trump administration, announced that it was creating an infrastructure fund backed largely by the Saudi government. Efforts to raise money have faced difficulty, but the firm’s CEO is a prominent supporter and adviser to the president, and records uncovered by American Oversight reveal contact between Blackstone representatives and Commerce and Treasury Department officials. We’re asking for those communications.

Trump’s Pardon Offer to McAleenan: Acting Homeland Security Secretary Kevin McAleenan traveled with the president to Calexico, California, in April, where Trump reportedly told McAleenan that he would pardon the acting secretary if he were to face criminal liability for closing the southern border and blocking asylum-seekers. We’ve asked DHS for records of that meeting.

Emoluments: NBC News has found that representatives of at least 22 foreign governments have spent money at Trump Organization properties, raising yet more questions about violations of the Constitution’s Emoluments Clause. American Oversight has been investigating the president’s unprecedented refusal to divest from his business interests, filing a lawsuit last month against the State and Justice Departments for related records after Reuters found that at least seven foreign governments received State Department approval to rent condominiums in New York’s Trump World Tower in 2017 without the approval of Congress.

Ginni Thomas: According to the Intercept, conservative activist Ginni Thomas, who is married to Supreme Court Justice Clarence Thomas, is planning a new project called “Crowdsourcers,” created to “protect President Trump.” We have a number of active FOIA requests across the administration to find out more about her influence on official policy and personnel choices.

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