OSC Outlines Hatch Act Compliance Requirements for Convention Speech at White House

President Trump can give his convention speech from the White House and White House officials can assist and attend in specific circumstances without violating the Hatch Act, the independent agency that oversees civil service law said last week.

In response to an inquiry from congressional Democrats, the Office of Special Counsel outlined on Aug. 12 how White House staffers can assist with Trump’s Republican National Convention speech next week and remain in compliance with the Hatch Act, which limits federal employees’ political activity on the job. After scrapping plans to be in Charlotte, N.C., then Jacksonville, Fla., due to the coronavirus pandemic, and floating the idea of going to Gettysburg, the president told The New York Post last week he intends to give his acceptance speech from the White House. This provoked concerns from outside watchdog groups and Democratic lawmakers due to the administration's past run-ins with the Hatch Act. 

Since the president and vice president are exempt from the Hatch Act, the law “does not prohibit President Trump from delivering his RNC acceptance speech on White House grounds,” wrote OSC’s Hatch Act Unit Deputy Chief Erica Hamrick. “However, White House employees are covered by the Hatch Act, so there may be Hatch Act implications for those employees, depending on their level of involvement with the event and their position in the White House.”

Most White House employees are prohibited from assisting with the event if they are on duty or if the event is held in a federal room or building. The letter notes that not all rooms in the White House are considered “federal,” as in “regularly used solely in the discharge of official duties.” Even if they are off-duty, staffers cannot attend if it’s in a federal area. 

However, if the employees take leave and the event is held on the White House lawn or the residence, then they may attend. These restrictions don’t apply to White House commissioned officers, who are the top advisers and assistants to a president, said the memo. 

Meanwhile, all White House employees are precluded from using their positions or influence to affect the election, Hamrick wrote. Additionally, there could be potential Hatch Act issues, “if White House employees who are supervisors were to task subordinate staff with work in support of the political event.” Therefore, she noted her letter provides only broad guidance and did not account for every possible situation that could occur from hosting a political event at the White House. 

It can be “confusing” how the Hatch Act applies differently to White House staffers and senior officials, said Nick Schwellenbach, senior investigator at the watchdog Project on Government Oversight and former OSC official. “If something falls into a gray zone, I recommend people seek OSC's Hatch Act advice before assuming something is either okay or a violation.”

Unlike the Republican convention that will have some in-person events, the Democratic one––which begins on Monday evening––will be all virtual and former Vice President Joe Biden, the presumptive nominee, will give his acceptance speech from Delaware. 

The RNC hasn’t released the official schedule yet, but according to an Axios report on August 4, the themes Monday through Thursday will be America as the land of heroes, promise, opportunity and greatness, respectively. Trump will speak on Thursday evening. 

“This [situation] is a departure from past presidential administrations who have historically done their best to keep political activity and the administration of the government, which is supposed to be impartial and apolitical, separate,” Delaney Marsco, legal counsel for ethics at the nonprofit Campaign Legal Center, told Government Executive on Monday. 

Despite the fact that OSC issued this guidance on what is allowed, it’s still “problematic” for the president to give his speech at the White House because “it sets the tone for the rest of the federal workforce,” Marsco said. “Just because somebody is permitted to do something doesn’t mean that they should.”

Meanwhile, Scott Bloch, head of the Office of Special Counsel from 2003 to 2008, said, “there have been a variety of ways the White House has been used in the past for influencing elections that may have run afoul of the law.” He cited the Clinton administration renting out areas of the White House for fundraisers and the George W. Bush administration using federal funds and resources to help Republican candidates. 

Bloch told Government Executive that the president must "ensure that the extraordinary circumstances that give rise to his having to accept the nomination from where he lives, the White House, not be an excuse to throw out the protections of the Hatch Act from coercing career federal employees or political appointees from engaging in political activity, or having them do so on government time.” 

Editor's Note: This article has been updated to remove incomplete and outdated information about Scott Bloch.