June 4, 2007
An attorney for Lurita Doan, head of the General Services Administration, argued Friday that President Bush should reject an investigative agency's report finding her in violation of the law that limits partisan political activity in the federal government.
In a 16-page response to the Office of Special Counsel's May 18 report that concluded Doan violated the Hatch Act when she asked at the conclusion of a January meeting how the agency could help Republican candidates, Doan's counsel, Michael Nardotti, said the investigation was not conducted objectively and a stigma of impropriety overshadows the case.
"When the record is examined in an objective, impartial and fair manner, it is clear that the conclusions of the OSC report are far off the mark and are based on tenuous inferences and careless leaps of logic," Nardotti stated. "We request that the Office of the President disapprove this report and submit this matter for consideration by an appropriate entity outside the OSC."
OSC declined to comment. The independent agency will review the letter and deliver a final report to President Bush.
Nardotti said in the letter that Doan was not treated fairly in the OSC investigative process; the report used selective testimony and evidence while omitting other information that would provide context; and the conclusion was "pure hyperbole and completely out of place in a purportedly objective, impartial and fair report."
The OSC report stated, "One can imagine no greater violation of the Hatch Act than to invoke the machinery of an agency, with all its contracts and buildings, in the service of a partisan campaign to retake Congress and the governors' mansions," in reference to Doan's role in a Jan. 26 meeting at GSA headquarters. At the meeting, Scott Jennings, special assistant to the president and a deputy of Karl Rove, showed to more than 30 GSA political appointees a 28-slide PowerPoint presentation that analyzed the results of the 2006 midterm election and prospects for the 2008 elections.
In the letter, Nardotti argued that if anything, the briefing itself was a violation of the Hatch Act: "[R]ather than focusing on that presentation -- which on its face raises Hatch Act concerns -- the OSC has aimed its ire on a single comment, the phrasing of which is disputed among those who remember it being made at all."
Several GSA political appointees who attended the meeting testified under oath to OSC that during a question-and-answer period following the presentation, Doan asked how the agency could help Republican candidates. The witnesses had different recollections of Doan's exact words, according to the OSC report. The investigators said, however, that this did not prevent them from determining Doan's intent.
Nardotti argued that the varying accounts of Doan's alleged remarks were significant because one statement ("How can we help our candidates?") could be understood as applying to individuals, while another version of the statement ("How can we use GSA to help our candidates?") implied the use of agency resources.
Doan maintained at a March 28 House Oversight and Government Reform Committee hearing that she did not remember the details of the meeting and could not recall whether she made that statement.
Even if she did make the comment, Nardotti argued, it would be a minimal "violation of the Hatch Act not worthy of the overblown rhetoric used in the report."
Elaine Kaplan, Bloch's predecessor as special counsel, said there could be a difference between posing the question as what "we" can do to help our candidates and asking what "GSA" can do.
"The use of 'we' could plausibly signal Doan's intent to initiate a discussion about how the meeting's participants could provide help to Republican candidates in a nonofficial capacity," Kaplan said.
"Having such a discussion take place on government property would violate the Hatch Act, but it would be a relatively minor violation, given that the room was filled with political appointees, not civil servants, and that it appears to have been a one-time event," Kaplan said. "If the question was what 'GSA' could do, on the other hand, she would appear to be initiating a brainstorming session about how to use GSA's official authority to help the Republican Party. That would be a far more significant violation."
Kaplan said the harsh tone of both the draft and final OSC report appeared to be based largely on OSC's conclusion that Doan's intent was to solicit suggestions about how GSA could help the Republican Party, not how the meeting's participants could do so in their unofficial capacities.
June 4, 2007