White House Counselor Conway Cited for Two Hatch Act Violations

Despite a White House promise that Counselor to the President Kellyanne Conway had learned her ethics obligations, Conway on Tuesday was cited by the Office of Special Counsel for violating the Hatch Act in two televised interviews.

Special Counsel Henry Kerner in an investigative report sent to President Trump detailed interviews Conway gave last fall on “Fox and Friends” and on CNN’s “New Day” to discuss the partisan tactics of the Alabama special election between Democrat Doug Jones and Republican Roy Moore. Conway appeared in her official capacity during the interviews.

Specifically, in a November discussion of the major tax bill then pending, Fox host Brian Kilmeade asked Conway several times, “[s]o vote Roy Moore?” Conway responded by saying, “I’m telling you that we want the votes in—in—in the Senate to get this tax—this tax bill through …. Let me tell you something this guy Doug Jones is a doctrinaire liberal.” Conway was identified as the president’s counselor during the interview.

In a December CNN interview with Chris Cuomo, Conway said, “The President has said he wants a vote. He’s also said he doesn’t want a liberal Democrat in the Senate. Nobody was even talking about Doug Jones until the president started talking about him.”

In OSC’s analysis, “In the first interview, Conway advocated against one Senate candidate and gave an implied endorsement of another candidate. In the second interview, she advocated for the defeat of one Senate candidate and the election of another candidate. Both instances constituted prohibited political activity under the Hatch Act and occurred after Conway received significant training on Hatch Act prohibitions.”

In passing the Hatch Act, “Congress intended to promote public confidence in the executive branch by ensuring the federal government is working for all Americans without regard to their political views,” OSC wrote in the report. “Ms. Conway’s statements during the ‘Fox & Friends’ and ‘New Day’ interviews impermissibly mixed official government business with political views about candidates in the Alabama special election for U.S. Senate.”

Employees of the Executive Office of the President are subject to the Hatch Act’s restrictions on seeking to influence an election, though the president and vice president are not.

Conway had previously run into trouble for endorsing, while standing in the White House press room, the commercial fashion line of presidential daughter Ivanka Trump. She was subsequently assigned ethics training, which included receiving a manual detailing the Hatch Act.

“On Jan. 24, 2017, Ms. Conway attended a senior staff ethics training led by White House Counsel Donald McGahn and Deputy Counsel to the President Stefan Passantino,” the new report said. “The training included a discussion of the Hatch Act’s definition of political activity as '[a]ny activity directed toward the success or failure or [sic] a political party, candidate for partisan political office, or partisan political organization.' Subsequently, on March 1, 2017, Mr. Passantino met individually with Ms. Conway to provide specialized Hatch Act training and review a PowerPoint presentation about the Hatch Act provided by OSC earlier in February 2017. One of the topics discussed was the Hatch Act’s prohibition against using one’s official authority or influence for the purpose of interfering with or affecting the result of an election.”

Conway was offered a chance to respond to a draft report on the OSC findings, but declined, the report noted. The White House counsel responded after the interviews, saying “that, during these interviews, Ms. Conway provided policy commentary about the ‘prospects of the president’s agenda in Congress’ and ‘sought to articulate, without engaging in any advocacy, why the president’s posture with respect to [Roy Moore] had changed.’ ” The OSC found that such a position “lacks merit.”

White House Deputy Press Secretary Hogan Gidley defended Conway after the OSC report came out, saying in a statement to reporters: 

Kellyanne Conway did not advocate for or against the election of any particular candidate. She simply expressed the President's obvious position that he have people in the House and Senate who support his agenda. In fact, Kellyanne's statements actually show her intention and desire to comply with the Hatch Act–as she twice declined to respond to the host's specific invitation to encourage Alabamans to vote for the Republican.

The nonprofit Campaign Legal Center issued a statement saying, "Anything less than removal from federal service or a lengthy unpaid suspension will not deter future misconduct on her part." The group's senior staffer, Walter Shaub, who had criticized Conway when he was director of the Office of Government Ethics, said that "lower-level federal employees have incurred severe penalties for less serious Hatch Act violations. The White House cannot continue to have one standard for the federal workforce generally and a lower standard for appointees who are close to this president.”

This story has been updated with White House Deputy Press Secretary Hogan Gidley's statement to reporters.