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Legal Analysis

Here’s Why Conway Definitely Violated Federal Law By Slamming Roy Moore’s Opponent

Donald Trump‘s official counselor, Kellyanne Conway, has been accused of violating the Hatch Act after unleashing a series of politically-motivated comments against Democratic senate candidate Doug Jones, who is currently running against accused child molester Roy Moore.

The accusations against Conway were leveled by Walter Shaub, former head of the Office of Government Ethics, who filed a formal complaint with the U.S. Office of Special Counsel, the agency tasked with investigating alleged violations of the Hatch Act.

Shaub, who currently serves as a senior director for ethics with the Campaign Legal Center (“CLC”), a non-partisan government watchdog group, tweeted about his filing earlier this morning. And, if the Office of Special Counsel is still pretending to be minimally competent, they’ll find Shaub’s complaint on point.

During a November 20 appearance on Fox & Friends, Conway said:

Doug Jones in Alabama, folks, don’t be fooled. He will be a vote against tax cuts. He is weak on crime. Weak on borders. He’s strong on raising your taxes. He is terrible for property owners. I just want everybody to know Doug Jones, nobody ever says his name and pretends he is some kind of conservative Democrat in Alabama. And he’s not.

The Hatch Act is officially titled, “An Act to Prevent Pernicious Political Activities” and was originally passed in 1939. Codified at 5 U.S.C. §7323, it reads, in relevant part:

an employee may not— (1) use his official authority or influence for the purpose of interfering with or affecting the result of an election

Here, Conway made her comments in an effort to harm Moore’s opponent, Jones. That Conway lacked the courage to technically endorse Moore is politically notable but not particularly legally relevant. What matters is her effective endorsement of Moore by way of disparaging Jones.

No matter what form of gloss is applied, Conway’s comments were intended to influence the Alabama senate election on December 12. If Conway weren’t concerned with the result of the election, she wouldn’t have made the comments in the first place.

Helpfully, Conway volunteered why the election was important enough to warrant her interference. She said, “I’m telling you that we want the votes in the Senate to get this tax bill through.”

Therefore, Conway conclusively attempted to interfere with and affect the election’s result. The next issue is whether this attempt was made under the auspices of her “official authority or influence.”

Recent precedent is instructive. As Shaub noted, last year, Housing and Urban Development (“HUD”) Secretary Julián Castro made comments during an interview with Yahoo News regarding Hillary Clinton‘s potential to win the 2016 presidential election. Those comments, according to Office of Special Counsel head Carolyn Lerner, were impermissible political advocacy under the Hatch Act.

In a July 18, 2016 letter to President Barack Obama, Lerner wrote [emphasis added]:

Secretary Castro’s statements during the [Yahoo News] interview impermissibly mixed his personal political views with official agency business despite his efforts to clarify that some answers were being given in his personal capacity.

Lerner went on to note, “The Hatch Act prohibits federal employees from using their official authority or influence to affect the outcome of an election. While federal employees are permitted to make partisan remarks when speaking in their personal capacity, the Hatch Act restricts employees from doing so when using an official title or when speaking about agency business.”

Let’s compare the two situations. It wont’t take long: (1) Castro went out of his way to make clear he wasn’t speaking in an official capacity, but he got dinged by the Office of Special Counsel for violating the Hatch Act because it still looked like he was speaking in an official capacity; and (2) Conway never once made any such clarification and she was introduced with her official title, “counselor to the president.”

This is an easy call. Conway almost certainly violated the Hatch Act. Here is the penalty:

An employee or individual who violates section 7323 or 7324 shall be subject to removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.

But before any liberals get the idea to celebrate Conway’s forthcoming sanction, the Castro precedent is instructive when it comes to penalties, too. Lerner suggested no penalty befall the former HUD secretary and that’s exactly what happened–he got off absolutely scot-free.

Now, it does appear that Conway’s potential violation here is at least somewhat more egregious. But let’s be honest; the United States only pretends to be a nation of laws in order to exact pressure on certain classes of people (classes to which neither Castro nor Conway belong), so expect that trend to continue.

[image via screengrab]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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