Kellyanne Conway appeared Tuesday morning on Fox & Friends in her capacity as a White House official, but weighed in on the Alabama special election. Doing so appears to violate federal law, according to several legal experts and former ethics officials who served in previous administrations.
Conway’s endorsement looks like it violated the Hatch Act, a regulations that limits federal employees’ involvement in partisan politics. The rule specifies that an official may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election.”
“Doug Jones in Alabama? Folks, don’t be fooled,” Conway told Fox & Friends viewers, appearing in her capacity as a White House official. “He’ll be a vote against tax cuts, he’s weak on crime, weak on borders, he’s strong on raising your taxes, he’s terrible for property owners, and Doug jones is a doctrinaire liberal which is why he’s not saying anything and why the media are trying to boost him.”
“So vote Roy Moore?” one of the hosts asks her.
Conway’s smooth delivery falters slightly. “I’m telling you, we want the votes in the Senate to get this tax bill through.”
Walter Shaub, former director of the Office of Government Ethics, says he filed a formal complaint about the incident, in coordination with the Campaign Legal Center.
CLC has filed a Hatch Act complaint against Kellyanne Conway for using her official White House title to advocate for a political candidate. https://t.co/l2QMxkN9n4
— CampaignLegalCenter (@CampaignLegal) November 22, 2017
Richard Painter, who served under President George W. Bush as chief White House ethics lawyer, also felt Conway’s appearance clearly violated the law.
This is an official interview. She has violated the Hatch Act by using her position to take sides in a partisan election. That is a firing offense. And for her this is strike two. https://t.co/U4kjbLu4NT
— Richard W. Painter (@RWPUSA) November 22, 2017
In her segment, Conway appeared to endorse Republican candidate Roy Moore by denigrating this Democratic opponent, Doug Jones. Moore is under fire for continuing to campaign despite several women accusing him of sexual assault, child sexual abuse, and other sexual misconduct. Despite the claims, Conway and others in White House have endorsed his candidacy.
But endorsing a candidate with the symbol of the office featured prominently behind the official is fraught with risk, and there’s a clear record of officials facing potentially serious reprimand for the same conduct.
In 2016, the Office of Special Counsel investigated then-HUD Secretary Julian Castro for a potential Hatch Act violation — under almost identical circumstances as Conway’s appearance.
The department determined a violation had occurred.
In an interview with Katie Couric, Castro endorsed candidate Hillary Clinton for the presidency. “Now, taking off my HUD hat for a second and just speaking individually,” he said at the time, “It is very clear that Hillary Clinton is the most experienced, thoughtful, and prepared candidate for President that we have this year.”
Behind him on the wall was the department seal prominently displayed. Conway, during her appearance stood in front of the White House, unmistakable in the background behind her.
Violations by political appointees are sent directly to the president; in Secretary Castro’s case, President Obama declined to pursue the case.
This isn’t the Trump administration’s first brush with Hatch Act violations: it appears to be one in a pattern of missteps — or intentional disregard for the law.
Dan Scavino, Jr. apparently violated the Hatch Act with his Twitter activities, but the Office of Special Counsel apparently took no action. Before that, the Office of Government Ethics reprimanded Conway for endorsing Ivanka Trump’s clothing line using her office. UN Ambassador Nikki Haley faced reprimand — but no serious consequences — for her Twitter activity, as well.
If President Trump is left with the decision whether or not to pursue a case against Conway, his track record on the matter suggests Conway will not face any consequences.