As federal investigators assess the potential criminality of former President Trump’s efforts to void the 2020 election, legal experts say a decades-old ethics law — routinely violated by members of the inner circle of Trump – could provide them with a fast track to prosecution.
The Hatch Act prohibits campaigning by executive branch officials, including the promotion of the president’s political interests, in the performance of their official duties.
The law was routinely flouted by the Trump administration during its tenure, a trend that continued throughout the two months between the presidential election and the Jan. 6 attack on the U.S. Capitol.
While the Ethics Act has been used almost entirely administratively since it was passed in the 1930s, experts say a rarely used criminal provision of the law could be a new and relatively simple strategy to ensure consequences for Trump in what is sure to be a difficult atmosphere. .
Norm Eisen, who served as special adviser to the Democrats during Trump’s first impeachment, called the actions leading up to Jan. 6 a “troublesome and endemic pattern of conduct by Trump enablers in the White House that involves the Hatch Act, including criminal. aspects.”
“This is no exception. This is perhaps the high point and the worst example,” he said of the events and statements around the Capitol riot.
“The problem is that the criminal prosecution is really unusual. But everything that happened at the end of Trump’s White House was also unusually bad, and I think it’s already under criminal scrutiny. So given that background, I think it’s highly likely that prosecutors will take a fresh look at the Hatch Act among other potential remedies that have been more extensively discussed publicly.
Much of the discussion about possible charges against Trump has focused on serious crimes that carry stiffer sentences, laws against interfering with or delaying official proceedings, or a conspiracy to defraud officials. United States.
But the Hatch Act’s sister law, which prohibits coercing federal employees into political activities, carries a three-year prison sentence and could include a fine.
While the Hatch Act is generally considered to apply before the election, an Office of Special Counsel (OSC) notice issued the day after the 2020 election notes that an individual does not cease to be a candidate until January 6. certification of election results.
Certain actions by Trump and his associates after the election — from a call on the Georgian secretary of state to a pressure campaign on the Justice Department to investigate alleged voter fraud — offered early signs that the Hatch Act could to have been raped.
But depositions with Trump staff and text messages from his chief of staff Mark Meadows released last month show how the White House was the site of coordinated efforts between the campaign, lawmakers and the DOJ.
Indeed, the House committee investigating the Jan. 6 attack on the Capitol used Meadows’ campaign activities — noting his “unofficial role in the Trump campaign” and calling him a “public official” — as justification for challenge his claims that his testimony should be protected by executive privilege.
“The administrative version of the Hatch Act and the criminal version of the Hatch Act exist to ensure that there are clear guidelines and a clear prohibition for public servants to use their government jobs to help facilitate victory or the maintenance of any candidate for an elective position in his power. said Donald Sherman, chief counsel at Citizens for Responsibility and Ethics in Washington.
“And it seems pretty clear from the available facts that it wasn’t just something that Mark Meadows did, but it was his primary purpose as White House chief of staff in the days and the weeks following the 2020 elections,” he added.
“I mean, to call this a textbook case of a Hatch Act violation is a bit too much on the nose. I think that’s far beyond what Congress or the CSO or really anyone could have imagined in terms of a worst-case scenario of abuse of this principle.
The January 6 committee is still grappling with whether to make a criminal referral for the prosecution of Trump and others close to him as part of its final work closing its investigation.
But he is preparing his own legislative proposals as part of a wider effort to ensure that January 6 – the attack as well as the abuse of power – never happens again.
“You know what is hiding in plain sight? In a lot of the evidence that comes from a whole bunch of different sources, there were government officials deeply involved in Donald Trump’s campaign, and so at the simplest level he’s an issue watcher of Hatch Act,” Rep. Jamie Raskin (D-Md.), one of the committee members, told The Hill.
“You can just identify so many instances where government officials have been involved in re-election activity and political activity that went beyond re-election to questionable illegality.”
Advocates of good governance have for years bemoaned the relative ineffectiveness of the Hatch Act. The president is exempt while in office, and other senior officials are largely immune once they leave office. The only repercussions – at least administratively – are largely job-related, such as a reduction in salary level or other demotions aimed at berating rank-and-file employees. Senior civil servants may, however, be excluded from future federal service.
“That’s sort of one of the general flaws of this whole thing,” Delaney Marsco, senior legal counsel for ethics at the Campaign Legal Center, told The Hill.
“Unless the president asks, their boss asks, it’s very difficult to get accountability for these kinds of violations. And once they leave the office, it’s practically non-existent.
The Office of the Special Counsel (OSC), which oversees Hatch Act violations, wrote in its report documenting the Trump administration’s violations of the law that its “enforcement tools are limited when it comes to presidential appointments. confirmed by the Senate and commissioned officers of the White House”.
And criminally, it’s not clear the Justice Department would consider such a charge, though his recent request for the committee on Jan. 6 to review some of his depositions suggests they might weigh some kind of criminal charges against those in Trump’s orbit. .
The OSC report noted gross abuses of the Hatch Act by 11 Trump officials during their tenure, including Meadows and others who were questioned by the committee: former press secretary Kayleigh McEnany and the advisors Jared Kushner and Stephen Miller. The report, however, landed in November last year, long after the team left office.
Since then, depositions released by the committee in court cases outline the extent of Meadow’s actions for the campaign: He was on Trump’s call with the Georgian secretary of state and visited the state during his audit. electoral. He was the call coordinator between lawmakers and Trump’s legal team — at one point Rep. Marjorie Taylor Greene (R-Ga.) begged him to spend more time with Rudy Giuliani. And he was also involved in Trump’s pressure campaign at the DOJ.
“While [Meadows] is on the federal payroll, yes, he’s the president’s chief of staff, but he’s not the presidential campaign chief of staff, he’s the White House chief of staff. And he seems to have completely lost that distinction,” said Kathleen Clark, a University of Washington law professor who specializes in government ethics.
She said the lack of repercussions for holding the Republican National Convention at the White House — something she called a “Hatch Act criminal spree” — was a green light for those in the Trump’s orbit to push things further.
“When you don’t enforce a law, when you don’t prosecute or take responsibility when people break a law, you give them permission to break it in the future. Draw a straight line from Hatch Law violations at the RNC to the White House, to post-election violations,” Clark said.
Still, not everyone is sure that Meadows himself broke the law, or that his violations can be proven in court.
“If Meadows, as White House Chief of Staff, pressured a federal employee to engage in partisan political activity, which I believe would include attempting to reverse the election result , he’s breaking the criminal law,” Richard Painter, George W. Bush’s chief White House ethics attorney, told The Hill.
Painter filed a complaint with the DOJ while Trump was in office, alleging he violated criminal law, calling for an investigation of him and his aides.
“If I had enough evidence to believe that this complaint was justified in October 2020, everything that happened after the election was much worse,” he said.
But he said a conviction against someone like Meadows can be “a waste”. It should go beyond showing the extent to which he organized meetings – even the use of White House phones is generally considered “de minimus” – and should show that Meadows coerced others into helping. the countryside.
“They are allowed to engage in [their] personal capacity in political activity. And they’re allowed to do that in the White House,” he said. “Meadows can be doing politics one minute and then doing official work the next. You really have to take off one hat and put on the other.
“If he was seeking to coerce a federal employee, including a staff member of a senator or representatives or a staff member of the Department of Justice or the Attorney General or anything like that, he would have committed a criminal offense “added Painter.
A lawyer for Meadows declined to comment.
But recent court documents in his battle with the committee list a slew of instances in which former chiefs of staff “engaged in efforts related to their president’s campaign efforts.”
“While congressional defendants argue, without citing any factual evidence, that White House chiefs of staff do not involve themselves in an incumbent president’s re-election campaign, common sense and facts… . The scope of duties of the chief of staff necessarily includes activities relevant to the re-election of the president,” Meadows attorney George Terwilliger wrote in a Friday brief.
Meadows has in the past dismissed concerns that he broke the law.
“No one outside the Beltway really cares,” he said in 2020 of the Hatch Act.
This is precisely why some see action – either by the DOJ or the committee – as a necessity.
“It’s no small feat because it goes to the heart of what our government is meant to be — that it’s not just for the benefit of office holders,” Clark said.
“Executive officials take an oath, and it is not an oath before the president. It is an oath to the Constitution.