The Office of Special Counsel on Thursday recommended that President Trump fire senior adviser Kellyanne Conway over repeated violations of the Hatch Act.
A report attached to the OSC’s statement labels Conway a “repeat offender,” and says 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.”
The Hatch Act bans federal employees from engaging in partisan political activity. The Office of Special Counsel is a federal watchdog agency that monitors federal employees.
The OSC report states that “If Ms. Conway were any other federal employee, her multiple violations of the law would almost certainly result in removal from her federal position by the Merit Systems Protection Board.”
“Her actions erode the principal foundation of our democratic system – the rule of law,” a letter prefacing the report reads.
Investigators cite a May 29, 2019 media appearance in which Conway appeared to downplay the law’s significance. “If you’re trying to silence me through the Hatch Act, it’s not going to work,” Conway said. “Let me know when the jail sentence starts.”
An executive summary of the report cites Conway’s May 2019 comments, saying that “her defiant attitude is inimical to the law.”
A Trump nominee — Henry Kerner — is in charge of the OSC. “OSC respectfully requests that Ms. Conway be held to the same standards as all other federal employees, and, as such, you find removal from federal service to be appropriate disciplinary action,” Kerner wrote in the Thursday letter to Trump.
Kerner’s decision to call for Conway’s revealed a behind-the-scenes battle between the OSC and White House that appears to have been playing out over the past few weeks. White House Counsel Pat Cipollone said in a June 11 letter to Kerner that a draft of the report was “based on multiple 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.”
The White House sent Cipollone’s letter in an email blast to journalists around one hour after the OSC report was released.
CNBC reporter Eamon Javers tweeted Thursday that he asked Conway for a reaction to the fact that a federal agency was recommending her firing. “Can you leave, please?” the tweet cited her as saying.
I was just standing in an office in the WH press office when Kellyanne Conway came in. I asked for her reaction to this. She pointed to the door and said “can you leave, please?” Later, I asked her again, and she said: “I have no reaction. Why would I give you a reaction?“ https://t.co/DZWKJsQLQb
— Eamon Javers (@EamonJavers) June 13, 2019
The White House put out a statement calling the OSC’s decision “unprecedented” and accusing the body of “violat[ing] 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,” the statement from Deputy Press Secretary Steven Groves read. “Its decisions seem to be influenced by media pressure and liberal organizations – and perhaps OSC should be mindful of its own mandate to act in a fair, impartial, non-political manner, and not misinterpret or weaponize the Hatch Act.”
The recommendation comes more than one year after a March 2018 finding by the same office that Conway violated the Hatch Act by advocating for Roy Moore during the 2017 Alabama special Senate election.
The March 2018 report concluded that Conway repeatedly violated the Hatch Act during multiple television appearances. That report cites her as saying that Trump “doesn’t want a liberal Democrat in the Senate. He wants a reliable vote for taxes, for life.” The OSC then states that after two 2017 television appearances, Conway “received Hatch Act guidance” from the White House Counsel.
But Conway continued to ignore that guidance, according to the report out Thursday.
Much of Conway’s conduct cited in the report is related to the 2020 presidential election. While “promoting the President’s agenda” is consistent with her official duties, the OSC said, weighing in on the 2020 nominees is not.
The OSC castigates Conway for making comments “directed at persuading voters not to support the Democratic Party candidates in the 2020 presidential election and garnering support for the President’s candidacy.”
The report goes on to cite dozens of media appearances Conway made from February 2019 until the present. In one April 30 appearance, for example, a reporter told Conway: “You brought up Joe Biden several times unprompted. Do you guys see him–?” Conway cut the reporter off, saying “How was it unprompted? He’s the frontrunner!”
After another question, Conway called Democratic voters “sexist” and “racist” due to the popularity of former Vice President Joe Biden and Sen. Bernie Sanders (D-VT). The White House adviser went on to say that “two old white straight men career politicians” were ahead in polling because voters have “a problem with the rest of the field.”
The OSC also cites Conway’s use of Twitter, accusing her of “engag[ing] in a pattern of partisan attacks on several Democratic Party candidates shortly after they announced” their campaigns. Those attacked include Sen. Cory Booker (D-NJ), Sen. Elizabeth Warren (D-MA), Rep. Beto O’Rourke (D-TX), and Biden.
Conway accused Warren of “lying” about her ethnicity in one interview, for example, and referred to the Democratic presidential field as “woodchips.”
The report also cites Conway’s tweets calling Biden “Creepy Uncle Joe.”
Towards the end of the report, the OSC describes why “Conway’s conduct warrants her removal.”
Calling the Hatch Act violations “persistent, notorious, and deliberate,” the OSC says that her conduct has “created an unprecedented challenge to this office’s ability to enforce the Act.”
“She has willfully and openly disregarded the law in full public view,” the report reads.
Despite Conway’s habit of making partisan comments, the announcement from OSC came as a surprise, particularly given that Trump chose Kerner to run the office.
The President first nominated Kerner in May 2017, with the Senate confirming him in October of the same year. A member of the right-wing Federalist Society, Kerner worked on the House Oversight Committee under two chairmen: Rep. Darrell Issa (R-CA) and Rep. Jason Chaffetz (R-UT).
Kerner also worked on the Senate side, serving as staff director Sen. John McCain (R-AZ) for the late senator’s work on the Senate Permanent Subcommittee on Investigations.
A biography on the Federalist Society website says he left Congress to do investigations for the Cause of Action Institute in 2016. Cause of Action describes itself as “advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.” Its investigations include probes into whether the IRS unfairly targets conservatives, a favorite (if unsupported) saw of the House Oversight Committee under Issa’s and Chaffetz’s tenures.
This post has been updated.
