Special Counsel Calls for Firing of Kellyanne Conway to Enforce Hatch Act

After an extended investigation and prior warnings, the government’s chief enforcer of the Hatch Act on Thursday issued a 17-page report that calls on President Trump to dismiss Counselor to the President Kellyanne Conway.

The White House responded immediately with its own 11-page rebuttal that calls into question the role of the Office of Special Counsel, led by Trump appointee Henry Kerner.

Conway, a longtime Republican pollster who appears frequently for TV interviews, has been criticized by the special counsel for comments to reporters on the White House lawn and on social media that deal with ongoing senatorial and presidential campaigns.

“Although the president and vice president are exempt from the Hatch Act, employees of the White House are not,” said OSC’s release on its letter to the White House. OSC referred to Conway as a “repeat offender,” arguing that her “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 most recent episode cited by the OSC is the interview Conway gave a reporter on May 29 specifically about the Hatch Act, in which she said, “If you’re trying to silence me through the Hatch Act, it’s not going to work.” She added: “Let me know when the jail sentence starts.” 

The OSC report, dated June 13, details dialog during various exchanges on CNN, CNBC and Fox addressing candidates such as Democrat Joe Biden and Alabama Sen. Doug Jones.

“Ms. Conway’s conduct undermines public confidence in the executive branch and compromises the civil service system that the Hatch Act was intended to protect,” OSC said.

Noting that Trump has authority to discipline Conway, the report said, “OSC recommends that she be removed from federal service.”

In a statement to the press, White House Deputy Press Secretary Steven Groves said the OSC’s “unprecedented actions are deeply flawed and violate her constitutional rights to free speech and due process. Others, of all political views, have objected to the OSC’s unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees. Its decisions seem to be influenced by media press and liberal organizations—and perhaps OSC should be mindful of its own mandate to act in a fair, impartial, nonpolitical manner, and not misinterpret or weaponize the Hatch Act.”

That statement accompanied an 11-page reply to Kerner dated June 11 from White House Counsel Pat Cipollone, denying that Conway violated the Hatch Act, and asking OSC to retract its report and to turn over numerous documents used to compile the report, by June 21.

“OSC’s draft report is based on fundamental legal and factual errors, makes unfair and unsupported claims against a close adviser to the president, is the product of a blatantly unfair process that ignored statutory notice requirements, and has been influenced by various inappropriate considerations,” Cipollone wrote. He faulted OSC for giving Conway insufficient time to rebut the accusations. “Examining the facts of Ms. Conway’s personal Twitter account highlights the absurdity of OSC’s overbroad and unsupported social media guidance,” he added. 

And while the White House “takes seriously the principles codified in the Hatch Act”—and as recently as March held training in Hatch Act ethics for all White House staff, he said—the president’s team “is also committed to ensuring that OSC exercises its significant authority in an appropriate and neutral manner and without infringing on the fundamental First Amendment rights of all federal government employees.”

Delaney Marsco, ethics counsel at the Campaign Legal Center, said in a statement: “We applaud the Office of Special Counsel for taking this matter seriously and issuing a scathing rebuke of Conway’s careless approach to ethics laws. Strict compliance with the Hatch Act is necessary to keep partisan politics independent from the administration of federal programs, and to ensure officials do not use their entrusted authority to affect the political process. Now the ball is in the White House’s court. If the president fails to follow through on OSC’s recommendations, it sends a signal that there is one set of rules for average federal workers, and another set of rules for people close to the president."

On Thursday afternoon, House Oversight and Reform Committee Chairman Rep. Elijah Cummings, D-Md., echoed calls for Conway to be fired, saying he would hold a hearing on June 26 with the Office of Special Counsel to which Conway would be invited.