In an interview Friday morning with Fox News, President Donald Trump was asked to address a recent government report reprimanding White House adviser Kellyanne Conway for violating the Hatch Act by “disparaging Democratic presidential candidates while speaking in her official capacity.” The 11-page report, submitted by the Office of Special Counsel (unrelated to Robert Mueller) recommended that Conway be removed from her post in the administration.
On Fox, Trump said he had no intentions of firing Conway, and argued that the Hatch Act goes against the First Amendment. “It looks to me like they’re trying to take away her right of free speech. And that’s just not fair,” Trump said.
In a statement following the OSC’s report, the White House made the same argument as Trump, that this would violate Conway’s First Amendment right.
Facts First: It’s incorrect to suggest that enforcing the Hatch Act somehow violates someone’s First Amendment rights. Furthermore, as President, Trump has the ultimate authority to reprimand or fire Conway. The OSC’s letter is — in practice — a recommendation.
The pertinent part of the Hatch Act, established in 1939, limits most federal employees from participating in political activity while acting in their official capacity. The act was created in hopes of quelling the appearance of partisanship as well as protecting government employees from being pressured to support certain parties and candidates. In his letter, special counsel Henry Kerner argued that while serving in her official capacity, Conway violated the act “numerous” times, during TV appearances and on Twitter as she argued for and against certain candidates.
The OSC also sent guidance last year warning federal employees not to use terms like “resistance” when talking about Trump.
Employers requiring their employees behave in a particular way while on the job when it comes to speech is not, in itself, a violation of their first amendment rights, especially when it comes to government employees.
As Justice Anthony Kennedy wrote in a 2006 Supreme Court opinion, “the Constitution does not insulate (an employee’s) communications from employer discipline.” Were Conway punished by her employer (Trump) for — as the OSC sees it — violating the Hatch Act, Trump would not be violating her First Amendment rights. Conway is not violating some criminal statute but rather an employment one.
Which draws on the broader point: Trump has ultimate authority over what happens to Conway in this situation and the OSC’s letter is nothing more than a recommendation and plea. (In fact, the OSC issued a similar report on Conway and her violation of the Hatch Act in March of last year.)
There is also a question as to how far the Hatch Act can go. For instance, the OSC letter argues that because Kellyanne Conway uses her personal Twitter account to “execute her official duties” she cannot, then, advocate for candidates, etc. on that account. In 2017, the OSC also said then-US ambassador to the UN Nikki Haley violated the Hatch act for retweeting “a political message from President Donald Trump.”
Talking to foreign dignitaries
Also during his Fox interview on Friday, Trump equated information heard during his private conversations with foreign dignitaries to being offered dirt on a political opponent from a hostile foreign government.
“One thing that’s different with the President — I had dinner with the Queen. I met with the Prime Minister of the UK. I was with the head of France, with the head of all these nations that are constantly — constantly talking to them.”
“If they say, ‘Gee, we don’t like your opponent,’ the President of France, am I supposed to report him to the FBI?” Trump asked.
Facts First: It’s misleading to suggest an equivalence between routine diplomatic conversations with foreign heads of state and accepting damaging material on a political opponent from a foreign adversary. There’s a clear distinction between the two, yet Trump is attempting to the blur the line between diplomacy and a violation of campaign finance laws.
Trump is suggesting that in order to comply with federal election laws prohibiting a campaign from accepting things of value from a foreign entity, he would have to report to the FBI private interactions with foreign officials, which may include conversations about their political preferences.
Trump added that the President of the United States “is in a much different position, because I hear things that frankly, good, bad or indifferent, that other people don’t hear.”
Trump’s comments are the latest clean-up attempt from the furor he set off in an interview with ABC where he said his own FBI director was wrong and he wouldn’t necessarily contact the FBI if he were offered dirt by a foreign government.
“It’s not an interference. They have information — I think I’d take it,” Trump told ABC. “If I thought there was something wrong, I’d go maybe to the FBI — if I thought there was something wrong. But when somebody comes up with oppo research, right, they come up with oppo research, ‘Oh, let’s call the FBI.’ The FBI doesn’t have enough agents to take care of it. When you go and talk, honestly, to congressmen, they all do it, they always have, and that’s the way it is. It’s called oppo research.”
Despite Trump’s assertion that the FBI does not have enough agents to deal with the issue, his own FBI director, Chris Wray, has told Congress that “the FBI would want to know about” any efforts by foreign entities to influence an election.
In addition, the Federal Elections Commission head, Ellen Weintraub, a Democrat, clarified that “it is illegal to solicit, accept, or receive anything of value from a foreign national in connection with a U.S. election.”
What’s “of value”? Information that could affect an election. That does not necessarily include, using Trump’s hypothetical, who Emmanuel Macron says he thinks is doing better in the polls during small talk.
During the interview, Trump lamented that many of his nominees for executive branch positions have been delayed in the Senate because of “Schumer and the Democrats.” When discussing nominees for ambassador positions, Trump claimed “You can’t get them through because of the system. Because Schumer won’t approve people.”
Fact First: While there is little doubt that Senate Minority Leader Chuck Schumer has worked to slow down the approval process for Trump nominees, it’s difficult to measure how much of this is pure partisanship or from real concerns over the merits of candidates.
According to the nonpartisan Partnership for Public Service, which tracks government appointments, 125 appointees have been formally nominated by the administration and are still waiting for confirmation by the Senate, which has confirmed 453 of Trump’s nominees.
The process to be formally nominated can often take six months or more. During this time, nominees are vetted by government ethics officials. Once a nominee reaches the Senate, there are several ways senators can slow things down, including using up valuable floor time through filibustering and holding lengthy debates.
The Democratic minority in the Senate has certainly worked to slow down the appointment process for several nominees (as have some Republicans). In 2017, Schumer told Politico that extending the process for approving nominees might be necessary in order to fully vet those nominated.
“To spend an extra day or two on each nominee, even if it takes several weeks to get through them all in order to carefully consider their nominations … that’s well worth it,” said Schumer.
So far, the administration has withdrawn 37 nominees for a variety of positions, including those nominated for ambassadorships, according to the Partnership for Public Service.
And then there are those positions the Trump administration has simply chosen not to fill. As Fox and Friends anchor Brian Kilmeade noted in the interview, there are currently 131 vacancies without a nominee. “So that’s on you guys to put somebody forward,” Kilmeade said to the President.
Trump replied that this was deliberate, and that his focus has been on appointing judges. “Mitch McConnell, myself and the Republicans have focused on judges,” said Trump. “We’re running government great, we don’t need all the people they want to give us. We have seats that I say ‘Don’t even put them in, you don’t need them.'”
This article has been updated.