Perhaps you’ve heard …

The Office of Special Counsel says Kellyanne Conway broke the law by disparaging Democratic candidates for president, both while appearing on T.V. in her official capacity as an adviser to the president and on her Twitter feed.

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Kellyanne Conway, one of Trump’s favorites, is being called upon to testify by the House Oversight Committee.  The Office of Special Counsel, which is responsible for the Hatch Act, has already reviewed her record and told the President in no uncertain terms that she repeatedly broke that law.

OSC says Conway broke the law by disparaging Democratic candidates for president, both while appearing on T.V. in her official capacity as an adviser to the president and on her Twitter feed. The Hatch Act prohibits most executive-branch employees from politicking.  

The House Oversight and Reform Committee will hold a hearing later this month with the Office of Special Counsel (OSC) after the government agency recommended  that White House counselor Kellyanne Conway be fired for repeated violations of the Hatch Act.  President Trump has already said that he’s not going to fire her, despite the OSC’s recommendation.

The Hatch Act, originally enacted in 1939, has a long history.  Sec. 8 of the Act states: “SEC. 8. Any person who violates any of the foregoing provisions of this Act upon convic[tion] thereof shall be fined not more than $1,000 or imprisoned for not more than one year, or both.”

This appears fairly clearly.  However, due to subsequent amendments, the present interpretation of the Act is that “Removal [from government employment] is the only penalty authorized for violation of the Hatch Act, under 5 U.S.C.S. § 1505.”

5 U.S.C.S. § 1505. states that “Either the State or local officer or employee or the State or local agency employing him, or both, are entitled to appear with counsel at the hearing under section 1504 of this title, and be heard. After this hearing, the Merit Systems Protection Board shall—

(1) determine whether a violation of section 1502 of this title has occurred;

(2) determine whether the violation warrants the removal of the officer or employee from his office or employment; and

(3) notify the officer or employee and the agency of the determination by registered or certified mail.”

Notice that this provision deals with state and local officials, not federal ones, and deals with determinations by the Merit Systems Protection Board.

When originally enacted, the Hatch Act did not provide for a Merit Systems Protection Board or the OSC and did not cover local and state officials. Now, however, the law covers both federal and non-federal employees and provides for procedures and consequences before the MSPB by the OSC.

If one looks carefully at the various legislation that amended the original Hatch Act of 1939, you will not find provisions that specifically override Section 8.  They add provisions such as Sec. 1505 but do not provide for any specific provision stating that Section 8 is no longer the law. Instead, they provide for investigation by the Office of Special Counsel, rulings by the Merit Systems Protection Board, which can make recommendations that the employee be fired, and then rulings by upper officials on those recommendations.  There is still no direct system for complaints to the judiciary and no specific way of getting a ruling which might include time in prison. So Section 8 just hangs there: it is not eliminated, but it still suggests (as it did originally) that a violation of the Hatch Act law can result in jail time.

Why is this important at this time?  It’s important because President Trump, the “boss” of Kellyanne Conway has ignored the OSC’s report and will do nothing.  So someone else needs to act. Who? Either the OSC or some other representative of the U.S. government. And what law will it seek to enforce?  Sec. 8 of the Hatch Act of 1939, which is still good law.

When the 1939 Hatch Act first became law, who was supposed to enforce it?  One would assume with the Department of Justice or the Attorney-General or the U.S. Attorney of the district where the crime occurred.  That would be the District of Columbia. Jessie K. Liu is the U.S. attorney for the District of Columbia.  She has general authority to enforce U.S. law, particularly a law that has not been exclusively given over to a different authority.  Her office had authority in 1939, and so far as I can tell it has never been removed. The OSC potentially has authority, but if it does not, then it goes to her.

After the House Oversight Committee examines Kellyanne Conway, the chairman should ask the OSC to file a complaint in the District of Columbia. If the OSC feels that it lacks authority, then he should turn to U.S. Attorney Liu. Someone needs to act.

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