Special Counsel Defends Career Staff as Panel Subpoenas Trump Counselor Over Hatch Act Violations

As a House panel voted to subpoena presidential counselor Kellyanne Conway on Wednesday, Special Counsel Henry Kerner defended his and his career staff’s recent decision to call for her firing over Hatch Act violations.

With all but one Republican (Justin Amash, R-Mich.), voting no, the House Oversight and Reform Committee agreed 25-16 to subpoena Conway after she, on instructions from the White House, declined an invitation to testify on OSC’s recent report outlining 12 instances of what investigators deemed improper, election-oriented comments on television and on Twitter while speaking in her official capacity.

“It’s a principle of our precious democracy that no one is above the law,” said Chairman Elijah Cummings, D-Md. The panel’s move is “not a conspiracy to silence her or restrict her First Amendment rights, but an effort to enforce federal law,” he added, faulting Conway’s “outstanding defiance” with presidential approval.

Contrary to President Trump’s comments on why he will not fire her, Cummings said, “It’s not a question of whether she’s a terrific person . . . but whether to obey the law.” He cited past clashes between congressional panels and the White House that he said show that Congress has “never accepted the claim” that White House staff are beyond reach for testimony on their adherence to ethics laws.

Kerner reiterated details from the on-camera statements by Conway, about which his office received numerous complaints. For example, Conway dismissed all the Democratic presidential candidates as “woodchips,” called Sen. Cory Booker, D-N.J., “tinny and sexist” and accused Sen. Elizabeth Warren, D-Mass., of misrepresenting her much-questioned Native American background to get a job. He said he and his office—though they spoke to White House counsel rather than to Conway herself—offered her many opportunities to talk or take training in Hatch Ac compliance. “But the violations only increased, which left us with no choice,” Kerner said.

But Ranking Member Jim Jordan, R-Ohio, called the OSC report and the subpoena idea “outrageous, unprecedented and unfair,” another sign of the Democrats’ “obsession” with taking down Trump. He accused Kerner—whom various Democrats noted was a Republican and a Trump appointee—of acting because “he got his feelings hurt” when the White House ignored the earlier work of his office. Jordan cited Obama administration personnel who also had run-ins with Hatch Act violations—White House political adviser David Axelrod, Chief of Staff John Podesta, Senior Adviser David Plouffe, Labor Secretary Hilda Solis and Press Secretary Josh Earnest.

Jordan accused Kerner of targeting conservatives in the same way, he said, Internal Revenue Service Exempt Organizations official Lois Lerner did back in 2012. (Kerner denied the comparison, noting that as a Senate staffer, he wrote the official report for the Senate Homeland Security Permanent Investigations Subcommittee condemning the IRS’s alleged biases.)

Objecting on more legalistic grounds was Rep. Mark Meadows, R-N.C., who called the subpoena “not necessary, not with the law, and nothing more than a political spectacle. We’re better than this,” he said, borrowing a favorite phrase of Cummings and lamenting the committee’s “downward spiral.”

The Office of Special Counsel doesn’t have the authority to write the guidelines—it’s the Office of Personnel Management, Meadows said. “What authority do have to write the prohibitions about using Twitter?” he asked Kerner, who cited the social media guidelines prepared by his career staff. Meadows asked Kerner to check the U.S. Code of Federal Regulations Title 5 Subpart E, which offers “waivers,” he said, for political appointees.

Kerner insisted that the OSC strives to be “fair and impartial,” acknowledging that he knew coming to the job “there would be hard calls.” But, he said, “the central purpose” of the Hatch Act, passed in 1939, “remains unchanged.” It protects two groups—federal workers, who can’t be co-opted into performing political work, and taxpayers, who deserves “nonpolitical” services from federal employees.

Conway’s actions and the White House resistance to the OSC “send a message that people need not adhere to the Hatch Act and that White House officials are above the law,” Kerner said. “The OSC will continue its distinguished history of enforcing the Hatch Act.”

He also expressed concern that the White House Counsel had responded to his recommendation by demanding documents on how the OSC investigators arrived at their conclusions. “We’re an independent, prosecutorial agency,” Kerner said. “It’s important to preserve our ability to execute oversight over the executive branch.”

Kerner expressed hope that the White House could still work out an agreement for Conway to admit fault and take training, contrasting her behavior with that of the departing press secretary Sarah Huckabee Sanders, who “deftly pivoted away when reporters asked her questions on campaign issues.”

Strikingly, Kerner defended his OSC career staff “as the world’s greatest experts on the Hatch Act.” Civil servants conduct the investigations, he stressed, and “apply the statute in a dispassionate and nonpartisan way. They are consummate professionals, and I’m very proud to represent them today.” He added that their recommendations—even the rare one of calling on the president to fire Conway—“are carefully calibrated.” He noted, for example, that President Obama’s Health and Human Services Secretary Kathleen Sebelius, after twice being called out for Hatch Act violations, reimbursed the government for the costs of a trip that turned political, and that some conservatives at the time called for her removal.

The career staff had told him, Kerner testified, that a recommendation for firing would “likely” be the conclusion if Conway’s behavior had been seen in an average federal employee. “We treat the well-connected just as we do the little guy,” he said. “We’re not going to have at two-tier Hatch Act system.”

Rep. Stephen Lynch, D-Mass., cited recent instances in which two postal workers—one pro-Trump and one pro-Hillary Clinton—were cited for Hatch Act violations in the workplace. The subpoena for Conway “is not even a close call,” he said. “We asked her to come in and she didn’t come. So either we change the law or abide by it.”