Q&A: Do the White House's RNC Actions Violate the Hatch Act?

Issues
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Donald Trump speaking at a podium
U.S. President Donald Trump, speaks during an event on the South Lawn of the White House in Washington, DC, on Thursday, July 16, 2020. Photo by Al Drago/UPI Credit: UPI/Alamy Live News.

Q: What is the Hatch Act, and who is covered under it?

A: The Hatch Act is a law that tries to ensure federal employees can do their jobs in a nonpartisan manner that is free of coercion. It has requirements for keeping political activities separate from activities that federal officials do on behalf of the public.

Under this law, most federal employees are barred from using “their official titles or positions while engaged in political activity.” It covers all federal civilian executive branch employees except for the president and vice president.

Q: Does the Hatch Act also cover how government property can be used for political purposes?

A: Yes. The Hatch Act also generally prohibits federal employees from engaging in political activity while on duty or while in any federal room or building. Certain rooms in the White House are considered exempt—like the parts of the residence or other areas not regularly used solely for official duties.

Q: Could you explain the distinction the Hatch Act draws between less restricted and further restricted employees?

A: Most federal executive branch employees are considered less restricted employees and can play a part in partisan political management or partisan political campaigns as long as they do so while off duty, not in a federal building and without using “their official authority or influence to interfere with or affect the result of an election.”

Further restricted federal executive branch employees are prohibited from taking an active part in partisan political management or partisan political campaigns. They can’t campaign for or against candidates or engage in activity on behalf of a political party. Generally, further restricted employees are those who work for agencies focused on intelligence, elections or enforcement of ethics violations.

Q: What kinds of political activities are covered under the Hatch Act?

A: There are two major buckets of activity covered by the Hatch Act. The president is exempt from both. One is engaging in political activity while on duty or in a federal building. This is the bucket of conduct most are concerned about with the Republican National Committee (RNC) convention.

Certain areas on White House grounds are not considered a "federal building" for Hatch Act purposes -- like the residence or the lawn -- because official business is not conducted there typically.

The second is using official authority or influence to affect the result an election. This part of the Act prohibits the use of an official title while engaged in political activity, for example, but also the use of other official conduct to affect an election.

Q: Could Trump’s decision to use the East and Diplomatic Rooms of the White House for Monday night’s RNC activities be considered a violation of the Hatch Act?

A: If these rooms are parts of the White House that are regarded as a federal room or building for the purposes of the Hatch Act, then this could be an issue if White House staff attended political events held in those rooms or helped plan RNC-related activities while on duty.

White House Commissioned Officers and the president are exempt from the part of the Hatch Act that prohibits political activity while on duty or in a federal building. 

Q: Does the Hatch Act apply to public spaces like the Rose Garden--which is not a room or building--but is still often used as a presidential forum?

A: If White House staff wanted to attend a political speech on the lawn, they would have to take leave to do so in compliance with the Hatch Act. If the speech were conducted in the West Wing, which is regularly used solely for official duties, attendance would violate the Act even if staff took leave to attend.

Again, White House Commissioned Officers would be exempt but would still be required to refrain from using their own official authority to affect the result of the election.

Q: Is the use of the White House for events like the naturalization ceremony and pardoning allowed?

The naturalization ceremony and pardoning raise questions about whether Chad Wolf and other federal employees who coordinated and took part in planning and filming the activities did so knowing it would be used or with the intent for it to be used for political purposes.  

Q: Are members of the uniformed services covered by the Hatch Act? If so, what does that mean for the marines who appeared in uniform at the RNC?

A: No, members of the uniformed services are not covered by the Hatch Act.

Q: Could Pompeo’s RNC speech and the resources used—like the Secret Service personnel guarding him—amount to a violation of the Hatch Act?

A: Yes. It raises concerns about how staff could have been using official time to prepare for this speech and their official authority to influence an election. It is also a violation of State Department rules and guidance on the Hatch Act.

Because Secret Service would likely have to guard a senior official whether on or off duty, doing political activity or anything else, the fact that they would have to be in attendance would mostly likely not constitute “engaging” in political activity. However, Secret Service members are further restricted employees under the Hatch Act and are therefore covered by the Act's most stringent restrictions. 

Q: What does Campaign Legal Center think about how the White House has failed to keep RNC events separate from federal activities?

A: The disregard for keeping official business and political activity separate is unprecedented in scope and wildly inappropriate.

Even if some of this conduct does not amount to a technical violation of the Hatch Act, it still violates the principle that the law stands for: that public service is a public trust, and using public office for partisan political gain undermines the public's trust in the government's ability to conduct business impartially and without political influence. 

Georgia is the 2020 CLC Communications Fellow