Steve Vladeck The Trump White House defense of Kellyanne Conway's Hatch Act violations is fooling no one

There's no constitutional principle behind any of these legal arguments and excuses — only politics.
Image: U.S. President-elect Donald Trump and his campaign manager Kellyanne Conway greet supporters during his election night rally in Manhattan
Trump and his campaign manager Kellyanne Conway greet supporters during his election night rally in Manhattan, New York, U.S., November 9, 2016. Mike Segar / Reuters file
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By Steve Vladeck, professor at the University of Texas School of Law

Not to be confused with special counsel Robert S. Mueller III, the Office of Special Counsel (OSC) — the independent government agency tasked with overseeing four statutes relating to federal government employees — made headlines on Thursday when it recommended that Kellyanne Conway, one of President Trump’s closest advisers, be removed from government service. In a 17-page report, the OSC said that Conway’s repeated violations of, and disrespect for, the Hatch Act were grounds for dismissal

The OSC said that Conway’s repeated violations of, and disrespect for, the Hatch Act were grounds for dismissal.

The White House immediately fired back. In a statement from Deputy Press Secretary Steven Groves, it argued that the OSC’s “unprecedented actions against Kellyanne Conway are deeply flawed and violate her constitutional rights to free speech and due process.” And White House Counsel Pat Cipollone followed suit with a hastily drafted (and unusually sloppy) 11-page letter objecting to just about every aspect of the OSC report. But whatever one thinks of Conway, the Trump administration’s claim that OSC’s actions violate her constitutional rights is risible — and a stinging insult to the tens of thousands of federal employees who, unlike Conway, have taken (and continue to take) the Hatch Act seriously.

The Hatch Act was enacted in 1939 to respond to concerns over increasing participation in electoral matters by federal government employees in both their personal and official capacity. At its core, the act differentiates between government employees who are allowed to participate in at least some political activities, and those who are not — and creates different rules for each category of employee. (The act does not apply to the president or vice president, but it does apply to their subordinates.)

Because of her position as a White House staffer, Conway falls into the category of those who are allowed to participate in partisan political activity — but who, among other things, may not use their official authority or influence for the purpose of interfering with or affecting the results of an election. And as the OSC report summarizes:

Ms. Conway regularly participated in official media interviews in her capacity as a White House spokesperson to answer reporters’ questions about the Administration. Beginning in February 2019, Ms. Conway, during official media appearances, engaged in a pattern of partisan attacks on several Democratic Party candidates shortly after they announced their candidacy for President, including Senator Cory Booker, Senator Elizabeth Warren, former Congressman Robert Francis “Beto” O’Rourke, and former Vice President Joe Biden.

Had Conway given these interviews from her own house and in her personal capacity, the Hatch Act would not have been offended; the sin is doing so on White House grounds and in her official capacity asa government employee. And although isolated Hatch Act violations are often met with warnings, OSC concluded that Conway’s violations were “egregious, notorious, and ongoing.”

Although isolated Hatch Act violations are often met with warnings, OSC concluded that Conway’s violations were “egregious, notorious, and ongoing.”

To be sure, there have long been messy questions at the margins of the Hatch Act regarding the line between prohibited and permissible political activity. But Conway’s is an easy case under the statute. That may explain why the White House has instead attempted to criticize OSC’s findings on constitutional grounds, but those arguments are even emptier.

Take the First Amendment objection. It’s certainly true that Conway has the right to free speech in the abstract. But the Supreme Court has long held that government employees, when speaking as government employees, have dramatically less constitutional protection. As future Justice Oliver Wendell Holmes once put it, a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

And as the court reiterated in 2006, “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.” That’s why, on the two occasions when the Supreme Court has considered First Amendment challenges to the Hatch Act, it has rejected them.

The White House’s due process objection fares no better. For starters, Conway has not been deprived of anything. Although the OSC has the power to take disciplinary action directly against most federal employees, it cannot do so with regard to senior presidential advisors like Conway. That’s why its report was merely a “recommendation” to Trump (which he almost certainly won’t follow). Even if the Due Process Clause otherwise applied — and, per the below, it doesn’t — the OSC’s recommendation does not deprive Conway of life, liberty, or property.

More fundamentally, Conway’s government employment isn’t protected by the Due Process Clause at all. Although some public employees (those with tenure or other forms of civil service protection) cannot be removed from their position without due process, Conway is an at-will employee who serves at the pleasure of the president — and who can therefore be fired at any time and for any reason without running afoul of the Constitution, as the Supreme Court made clear in 2009. And even if the government needed a reason, persistent, egregious violations of the Hatch Act would certainly suffice. Indeed, even those government employees who do have tenure or other civil-service protection can be fired for violating the Hatch Act.

But what is most galling about the White House’s defense is its blatant hypocrisy. This is the same administration that has repeatedly asserted its right to fire senior government officers for no reason (or even nefarious ones), and that has portrayed private speech by government employees as tantamount to treason. To turn around and argue that the former is now prohibited by the Fifth Amendment and the latter is protected by the First Amendment is to reveal the extent to which there’s no principle behind any of these legal arguments — only politics.

The OSC concluded its report to the president by explaining that “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.” The OSC is right — and it may even be worse insofar as the White House sends the message that Hatch Act violations won’t be subject to discipline so long as they are, like Conway’s, in support of the president or opposition to his opponents. But while the White House is not formally bound to comply with OSC’s recommendation, no one should take seriously its claim that the Constitution has anything to do with whether it should.