Opinion

Giuliani Just Outdid Trump with His Legally Clueless Response to Kellyanne Conway’s Hatch Act Violation

Rudy Giuliani, Donald Trump, 2016Kellyanne Conway’s potential Hatch Act violations are anything but surprising.  Even less of a shock is President Donald Trump’s blatant apathy that a senior staffer openly and routinely flouts federal law.  Realistically, none of us expected Trump to fire Conway simply because it’s the recommended course of action. Still, though, it’s always jarring when the president proves that he doesn’t actually understand how the law works.

Trump’s official comment about Conway’s Hatch Act violations was that he’d submit himself to a “very strong briefing,” but that, “It looks to me they’re trying to take away her right from free speech, which is not fair.”

Trump might be interested to learn that a great many statutes abridge free speech.  Defamatory, inciteful, or obscene speech is properly prohibited by law. So is speech that violates a person’s medical privacy, that which violates court orders, and many, many other categories of communications.  Equating “free speech” with “absolutely unrestricted speech” is an error usually relegated to grade-schoolers who are still learning the words to the Star-Spangled Banner.

The purpose of the First Amendment was never to create a country in which any person could say anything at any time without consequences – it was to create one in which political discourse was unstifled by government. In fact, the Hatch Act is an example of a statute that abridges free speech for the purpose of keeping the government from inserting itself too much into politics.

The relevant part of the Hatch Act dictates as follows:

“an employee may take an active part in political management or in political campaigns, except an employee may not—

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election;”

Yes, as Trump mentioned, it “takes away” Conway’s right to free speech. Statutes are allowed to do that – just as Conway is free to seek employment outside the federal government.

Trump’s take on the Hatch Act may have been dead wrong, but Rudy Giuliani showed up for a hold-my-beer comment. The former federal prosecutor and current distorter of all things legal had this to say:

Under Rudy’s interpretation, federal law apparently doesn’t (and couldn’t) prohibit a federal employee from influencing an election.  Apparently, we’re to believe that it’s cool for everyone from cabinet secretaries to groundskeepers to publicly endorse one candidate or another, and to use their official posts to get their favorite candidates elected.

President Trump has long struggled with the distinction between the public and the private, whether the context is the significance of his own business entanglements, or the inappropriate comments of his staffers.  Watching the once-respected Giuliani jump on Trump’s ludicrous bandwagon of wilfull blindness is beyond disturbing. Comments from the two transcend shortsighted support of Conway, creating a reality in which the American president and his legal advisors are committed to ignoring not only the letter and spirit of the law, but also the general framework of government.

The First Amendment (as well as the rest of the Constitution) restricts government from becoming overly intrusive. The president’s staff is the government, which is why it matters what they say. The Hatch Act would have no bearing on Kellyanne Conway if she wasn’t a government employee — which, I believe, was the very point the Office of Special Counsel was attempting to make.

[image via Don Emmert/AFP/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey. Follow Elura on Twitter @elurananos

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