The Office of Special Counsel’s accusation Thursday that Kellyanne Conway, counselor to the president, violated the Hatch Act, and its recommendation that she be removed from the federal service, is a grotesque abuse of power.
The Hatch Act was intended to prevent non-partisan civil service employees from abusing their positions to pursue political objectives. But Conway has a political job. No reasonable person would confuse her for an ordinary civil servant.
Conway is the latest in a long line of White House employees who are paid by the federal government but whose work in unavoidably political. She is an adviser to the president, but her main role is to speak for the president on political issues.
There is no convenient way to separate these two roles, and no White House has ever done so. Journalists routinely ask her to respond to attacks by Democrats; Conway is now accused of violating the Hatch Act for obliging.
By the standard imposed by the Office of Special Counsel, almost every White House employee of note would have to have been disqualified.
David Axelrod, who was President Obama’s campaign manager before joining him as a White House adviser, launched a smear campaign against the U.S. Chamber of Commerce during the 2010 midterm elections, alleging it was laundering foreign cash into Republican coffers. If that did not violate the Hatch Act, nothing should.
The Office of Special Counsel’s report is a recapitulation of political statements by Conway, including in social media. The report takes particular issue with what it describes as Conway’s disregard for the Hatch Act, including a statement that she would not be silenced by it. The White House’s response to the allegations — and to the Office of Special Counsel’s extraordinary public statement — pushes back, raising procedural and legal objections.
Whatever the merits of these legal arguments, what the report seems to expect is that anyone at the White House below the president himself should have to take political abuse from the media and the opposition but is forbidden to respond. This is one of many checks on executive power that seem to have been discovered, conveniently, in time for Trump.
It would be futile to speculate as to the motives of Special Counsel Henry Kerner, a Trump appointee. He would not be the first such appointee to turn against Trump. Conway might also be in hot water for allegedly commenting to CNN’s “very fake news” correspondent, Jim Acosta, for his new book. She has also had to weather tabloid-worthy headlines about her rabidly anti-Trump husband.
But if she is removed for doing her job, this will not end: every Trump official will be in the crosshairs. Reforms to prevent the abuse of the Hatch Act will come — when a Democrat is back in charge.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.