The US Office of Special Counsel recommended Thursday that White House counselor Kellyanne Conway be fired, saying her public promotion of the president’s reelection campaign and attacks against Democrats made her a “repeat offender” of the Hatch Act, which bars federal employees from engaging in certain political activities, including playing “any active part” in a campaign.
President Donald Trump, however, has it made clear that he has no intention of removing Conway. During an interview on Fox News, a day after OSC’s recommendation, he praised her for being a “tremendous spokeswoman” and defended her comments under freedom of speech.
“Well, I got briefed on it yesterday, and it looks to me like they’re trying to take away her right of free speech, and that’s just not fair,” Trump told Fox & Friends hosts Steve Doocy, Ainsley Earhardt, and Brian Kilmeade.
In a letter submitted to Trump, OSC — an independent federal watchdog unrelated to special counsel Robert Mueller and his investigation into Russian interference in the 2016 election — said that Conway’s actions are “unacceptable.” The agency also expressed concern about Conway’s repeated dismissal of the act.
“As a highly visible member of the Administration, Ms. Conway’s violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” special counsel Henry Kerner wrote on the agency’s behalf. “Her actions erode the principal foundation of our democratic system — the rule of law.”
In a report attached to the letter, OSC said Conway has been violating the Hatch Act since at least February 1, 2019, primarily through media interviews and her Twitter account. For example, the report pointed out how she accused Beto O’Rourke of not “think[ing] the women running are good enough to be President” after he had announced his campaign.
In another instance, according to the report, she publicly supported Trump’s reelection campaign by tweeting out “He’s got this. #2020:I’mWithHim.”
The law provides exceptions to the president, vice president, and a few high-level officials, but not White House employees like Conway, OSC said.
Even more concerning, OSC wrote, are Conway’s comments during an interview on May 29 that mocked the Hatch Act. When asked about her past violations, she said, “If you’re trying to silence me through the Hatch Act, it’s not going to work. Let me know when the jail sentence starts.”
According to Kerner, comments and actions like those would “almost certainly result in removal” from her job “if Ms. Conway were any other federal employee.”
But Conway isn’t any other federal employee. While OSC told Trump that Conway should be removed, the recommendation itself has no executive power. And Trump has little incentive to fire one of his most loyal aides.
This isn’t the first time Conway has been accused of violating the Hatch Act
Part of why the OSC is so concerned about Conway is because it has had to repeatedly sound the alarm about her conduct.
”Never has OSC had to issue multiple reports to the President concerning Hatch Act by the same individual,” the letter said.
In 2017, Conway was under fire for encouraging the sales of Ivanka Trump’s clothing line by telling Americans to “go buy Ivanka’s stuff” during an interview with Fox & Friends. The White House announced that she was “counseled” after mounting criticism.
In 2018, OSC said she violated the Hatch Act twice by advocating for and against candidates in the 2017 special election in Alabama. On November 20, Conway appeared on Fox & Friends and bashed Democratic candidate Doug Jones, urging viewers to refrain from voting for him. On December 16, she appeared on CNN’s New Day, rallying voters to support Republican candidate Roy Moore.
OSC detailed these violations in a report to the White House on March 6, 2018, recommending “appropriate disciplinary action.”
Yet here we are, more than a year later.
Trump is the only person who can discipline Conway — and he seems to have no intention of doing so
Those who violate the Hatch Act can be fired, suspended, or demoted, and fined up to $1,000. However, Conway will not face any of these, as Trump has already publicly said he will not fire his counsel. He’s brushed off OSC’s criticism, saying that Conway has a “right of responding to questions.”
This isn’t the first time Trump has overlooked Conway’s potential violations of the Hatch Act. And it seems unlikely he will take action against an aide he’s praised in the past for TV appearances.
“She’ll do the shows that nobody else dares go near,” Trump said last spring, according to the Washington Post. “She’ll just — I’ll say, do this one or that one. No problem sir. Others say, sir, do you think I could take a pass please, I beg you please. Great going, Kellyanne. Thank you. What a help.”
The White House’s official response is equally defensive of Conway. White House counsel Pat Cipollone had initially written to OSC on June 11 in response to a draft of the report, asking for the agency to withdraw and retract its statement for its “numerous grave legal, factual, and procedural errors.”
But Cipollone didn’t just take issue with the agency’s report on Conway — he attacked the OSC writ large and the Hatch Act it’s tasked with enforcing. In his June 11 response, he accused the agency of inconsistently applying the Hatch Act across Democratic and Republican administrations and argued that the act violates Conway’s First Amendment rights and “chills the free speech of all government employees.”
Because OSC’s recommendation doesn’t have any legal power, it all comes down to whether Trump wants to follow through with the agency’s advice. And as he made clear Friday, he has no intention of doing so.