The Office of Special Counsel Report on Trumpsters’ Crimes: Toothless, But Useful?

The Office of Special Counsel (the organization meant to protect whistleblowers, not Robert Mueller or John Durham) just released a report finding that 13 senior Trump officials — including Hatch Act recidivist Kellyanne Conway — violated prohibitions on engaging in electoral politics while acting in an official capacity during the 2020 election.

The most important parts of the report describe the many reasons why the Official of Special Counsel is utterly powerless to prevent the kind of gleeful flouting of norms that Trump practiced. Several of these amount to admitting that if the President encourages Hatch Act violations, there’s nothing you can do about it.

1. OSC’s enforcement tools are limited with respect to Senate-confirmed presidential appointees (PAS) and White House commissioned officers. Potential fix: A statutory amendment that (1) allows OSC to pursue substantial monetary penalties against PAS and commissioned officers before the MSPB, and (2) grants the MSPB jurisdiction over former employees for Hatch Act violations committed during their period of federal employment.

2. OSC did not receive from the Trump administration the good faith cooperation necessary to ensure full compliance with the Hatch Act. Potential fix: A statutory amendment granting the MSPB greater authority to enforce OSC’s subpoenas and other investigative requests.

That said, this report and some of the people it names as having broken the law, including Kayleigh McEnany, Mark Meadows, and Chad Wolf, may be of some use going forward.

That’s because DOJ has laid the ground work not to treat politicians’ actions leading up to and during January 6 with the protections accorded their political office based on the precedents holding that the scope of federal office excludes campaign activity.

The record indicates that the January 6 rally was an electioneering or campaign activity that Brooks would ordinarily be presumed to have undertaken in an unofficial capacity. Activities specifically directed toward the success of a candidate for a partisan political office in a campaign context—electioneering or campaign activities—are not within the scope of the office or employment of a Member of the House of Representatives. Like other elected officials, Members run for reelection themselves and routinely campaign for other political candidates. But they do so in their private, rather than official, capacities.

This understanding that the scope of federal office excludes campaign activity is broadly reflected in numerous authorities. This Court, for example, emphasized “the basic principle that government funds should not be spent to help incumbents gain reelection” in holding that House or Senate mailings aimed at that purpose are “unofficial communication[s].” Common Cause v. Bolger, 574 F. Supp. 672, 683 (D.D.C. 1982) (upholding statute that provided franking privileges for official communications but not unofficial communications).

DOJ did that even as it declined to invoke Executive Privilege for Trump’s own communications with some of these people (explicitly so with McEnany and Meadows).

Whatever else this report lays out, it amounts to the neutral independent body entrusted with such investigations finding that Trump exploited the timing of the election to encourage such politicization of the White House.

OSC received complaints alleging that the 13 senior Trump administration officials listed in Part III violated the Hatch Act in one of two ways: by making statements supporting or opposing a candidate for partisan political office while speaking in an official capacity, or by using their official authority in connection with, and in furtherance of, the RNC. Section 7323(a)(1) of Title 5 of the U.S. Code prohibits federal executive branch employees from using their official authority or influence to interfere with or affect the results of an election. Under that prohibition, it is illegal for an employee to support or oppose a candidate for partisan political office while acting in an official capacity. Yet Trump administration officials did precisely that. And while the specific facts of each case are different, they share this fundamental commonality—senior Trump administration officials chose to use their official authority not for the legitimate functions of the government, but to promote the reelection of President Trump in violation of the law.

The administration’s willful disregard for the law was especially pernicious considering the timing of when many of these violations took place. OSC cannot, in most cases, stop violations from happening in real time. Even apparently straightforward violations of the Hatch Act may not turn out to actually be violations upon further investigation. Therefore, investigating alleged violations is the only way to ensure a fair result. Accordingly, OSC affords appropriate due process to the subject of a complaint and gathers the relevant facts before reaching a conclusion. As a result, OSC’s investigations can often stretch out for weeks or even months. This reality creates a window for an administration that is so inclined to ignore the Hatch Act in the final months of an election cycle, knowing full well that any public report or disciplinary action would not likely occur until well after the election. However, the benefit to the administration and resultant harm—the use of official authority or influence to interfere with or affect an election—would accrue on or before election day. As described in Part III, OSC has concluded that the Trump administration tacitly or expressly approved myriad Hatch Act violations committed within that critical period immediately prior to the 2020 election during which OSC was unable to both investigate and resolve the violations before election day. [my emphasis]

This is what Trump spent the two months after he lost: turning the White House into a full-time election-stealing headquarters.

So while the OSC may be totally useless in policing the politicization of someone who refuses to be bound by any norms, this report may be useful in the days ahead for the way that it documents how thoroughly Trump did that.

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30 replies
        • civil says:

          Perhaps David’s comment was a reference to Adam Serwer’s argument in The Cruelty Is the Point — that as long as Trump is hurting people his fans want hurt, they’ll continue to be fans. If you haven’t read it, it’s well worth reading, as is the case with much of his work.

      • Peterr says:

        Sadly, no.

        With much of this crew, an indictment would be seen as a badge of honor in the face of unjustified attacks by Teh Deep State, and make him even more worthy of their votes.

        • MB says:

          What? Even more viable after indictment? Sounds like there’s an argument to be made for more liberalized voting rights for felons, in that case…but with their tendency to declare an election rigged before the election actually takes place, then the meaning of “viable” will have to be revised.

          • gmoke says:

            Martyrdom, false or not, can be used to political advantage. Proves said “martyr” is serious about the cause. (And prison can be an organizing arena as appears to be what’s happening among the Jan6 incarcerated according to what I’ve read.)

            Not to invoke Godwin’s Law, but little Adolf became a more viable candidate after his stint in prison, it seems.

        • earlofhuntingdon says:

          As with corporate malfeasors, unless the consequences include jail time, they fail to inhibit extreme conduct.

    • What Constitution? says:

      I have a similar level of “not understanding” in connection with failure aggressively to advocate enforcement of Section 3 of the Fourteenth Amendment against “this man”. Trump is not a demigod, and condoning/encouraging his rabid base in that idiocy is, of course, not a solution for any problem — but neither is the Fourteenth Amendment itself predicated upon criminal indictment or conviction.

      One of many things that this morning’s “Special Counsel Report” does is emphasize that Trump turning his office and his appointees into a “stop the steal” fraud fest describes yet additional facets of active insurrection and dereliction of Constitutional oath. It’s not close. And it’s not even relevant, let alone foreboding, that the provision has not previously been invoked against a former president who tries any and every possible way to overturn the results of a Presidential election — because Trump was the first person vile and irresponsible enough to try it, that means it’s presumptively OK?

      This morning’s Report is the, what, umpteenth chapter in the relentlessly growing litany of facially illegal acts undertaken in furtherance of the effort to successfully ignore tenets of our laws, the Constitution, the role of Congress, and the expressed (and repeatedly counted and confirmed) will of the people. And our government and the pundit class is spending the time worrying about whether the Republicans will disband the Special Committee if the midterms go awry?

      A majority of the Congress could vote this afternoon to invoke the Fourteenth Amendment to bar Donald Trump from ever again holding any U.S. office. State legislatures could conduct the same legislative declaration for numerous respective States. Who thinks that wouldn’t hold up — who’s going to defend him from that and by what vehicle — John Eastman (if he’s not soon disbarred and/or indicted) and what corps of convicted felons, or is it a compelling reason to ignore this provision that there might be persons lawless enough to shoot people on the street in Kenosha if they thought Trump might be called to account? Establish the declaration presented by Section 3, and Trump still/also can be criminally indicted from here to the horizon and such indictments can be prosecuted over maybe dozens of facially compelling instances of criminality, without anxiety over whether he might get elected by the white Covid survivors in the Red States in 2022.

      Which raises perhaps an historical question: we look back now on The Greatest Generation, the ones won won World War II. In fifty years, will people look back on this twenty year window as “the Lamest Generation”, fabricated from nothing but self pity, greed and abject refusal to acknowledge that the concept of “Freedom” that built America is not one-sided self interest, but a recognition that freedom includes responsibility to more than one’s own whim.

      Who knows, maybe they’ll look back on how Great Leader Ted Cruz vanquished Big Bird, and all will be well. Or maybe, somewhere in the future, enough people will notice that what Mr. Trump is and what he represents is not really in the best interests of any but the vilest of charlatans and that demigod spell will “disappear like magic”, maybe even better than Covid did.

      • notjonathon says:

        Some 30% of Americans today have been educated (indoctrinated) in Christian schools from kindergarten through college and, in some cases, even through law school. Any appeal to intellect will result in, “God said it, I believe it, and that’s it!”

          • notjonathon says:

            Sasseure (and Pierce) defined a word as having two components: the signified and the signifier. In semiotics, when a word has no identifiable “signified,” the word becomes an empty signifier. “God” in this instance is an empty signifier.

            • MattyG says:

              Actually CS Pierce developed the ‘Triatic’ model of semiotics – not Sasseure’s simpler dual sign/signifer system. Pierce’s three components were the Interpretant, Representamen, and the Object. These 3 axes came together to form a more complex and dynamic system with greater and more convincing simulation value.

      • Zinsky says:

        Well said. I am not an attorney but my reading of Section 3 of the 14th Amendment pretty clearly bars an insurrectionist from ever holding “any federal office”, even though it does not specifically cite the Presidency. So, a simple majority vote of both houses of Congress could trigger this bar? I am looking for greater legal minds than mine to tell me why Chuck Schumer and Nancy Pelosi haven’t brought this to the floor of both chambers of Congress to bar Trump from ever holding ANY federal office again? If he is allowed to be on the ballot in 2024 in all 50 states – it’s over. The vote totals will not matter.

      • Thomas says:

        I agree wholeheartedly with every remedy you propose.
        I believe that such a remedy will occur when Trump is convicted of one of his multiple felony cases and while he is awaiting trial for more of them
        Despite all 9f the obstruction and delay of Justice by the criminal Republican Senators who are co-conspirators, the wheels of Justice are moving toward a reality in which Republican Party criminals are being arrested and prosecuted, including Trump.
        I do believe it has already begun and the trickle will become a torrent next year, and the absurdity of the Republican Party taking control of Congress in 2022 will become the new conventional wisdom.

  1. dimmsdale says:

    Those kinds of violations of the public trust, no matter how comparatively trivial, make my blood boil, especially in finding out how toothless the Hatch Act really is. My dad worked in the federal service from the mid-1940s thru the mid-1970s and was terrified of violating the Hatch Act; he was resolutely apolitical even in social gatherings and so were his civil-service peers. Of course, “the public trust” was a Thing back then, and with amoral Republican thugs it’s a trifle. I look forward to actual consequences being legislated into the Act somehow, since a person’s sense of honor and ethics can’t be counted on any more.

    • timbo says:

      That’s the problem. Back then there were a lot of decent folks who didn’t want to break the law at all. The number of people that don’t care whether or not they break the law is growing in this country… because there isn’t much consequence usually for doing so. And, unfortunately, the Hatch Act is just another example of a law that had more sway when people actually expected there to be shame associated with breaking that law. And when the Congress had enough idealists in it to bring strong consequences upon officials that did break such laws.

      Hopefully the Congress (when/if it ever gets its act fully together again?) will give the OSC more teeth in enforcement and penalties. As OSC points out, there’s little they can do in real time when violations are actively occurring… but it sure would be handy for them to be able to file charges against violators of this act soon after they gather facts that indicate ongoing violations, etc.

      • Peterr says:

        It’s not the OSC or DOJ, but David Friedman, Brian Morgenstern, Robert O’Brien, and Mike Pompeo are all lawyers, and presumably could be affected by a bar complaint, as was done in the case of Monica Goodling. She got a reprimand, likely on the basis of her consistent “I didn’t know that was wrong” combined with her JD from Pat Robertson’s Regent School of law, rather than being expelled from the bar, but still.

        I’m sure Pompeo would just love to be thought of in the same breath as Monica Goodling, as he prepares to run for president.

      • JohnJ says:

        I had parents very similar to dd, both Civil-Servants, both carrying national secrets to their graves. My dad’s ideal was personal integrity. It was the most important thing to him.
        I remember several times when watching the news with them asking why, if the president has the power, and Congress says no, he just doesn’t do it any way. The wide eyed answer I always got was “it is against the law”! In my parents world, that was all that was needed.

        That, in my experience, was the way that generation was. (But it is a whole bigger discussion what a lousy job they did at passing it to their kids.)

        • P J Evans says:

          I grew up in a town where “what does your father do?” wasn’t a question; most of us only knew the basic title like “project engineer”. All I officially know about what my father did was from the jobs before and after that one, and a few things that were on his resume. I suspect most of the people from my school were in the same situation. (The classmate whose father died of cancer, and believes it’s because he used to go to the major airport in his Jimmy to pick up plutonium and bring it back for his employer. The years before OSHA….)

          • JohnJ says:

            Mine were FBI to begin with. Mother had J.E.Hoovers secrets. NEVER told a single one. Dad retired with White House clearance from the FCC??. They both took everything secret to the grave. Personal Integrity. (along with massive amounts of cognitive dissonance typical of their generation).

            Now their old friends from FBI days and big wigs from the FCC weren’t as tight lipped when they came to dinner.

    • Savage Librarian says:

      Keep in mind that there are differences between civil service and appointed positions. I suspect that civil servants can still be held to account through progressive disciplinary processes and procedures. So they may still take the Hatch Act seriously.

      Appointed positions are entirely different. They are political and relatively temporary. And, as Marcy points out, Hatch Act rules are toothless for them. But at least now we have a useful historical record.

      As we have seen, there have been a number of appointed officials who were eager to write about their experiences in the DT administration. And, who knows, maybe there have also been some civil servants that have had useful information to share. Perhaps they have been able to share it much more discreetly.

  2. Silly but True says:

    The originating issue is that the OSC originated to protect the rights of civil service employees caught up in civil service laws, but has in recent years taken an expansive view of its jurisdiction even in cases where it has no statutory enforcement role like Executive Branch appointees.

    The result is that it can only render penalties or sanctions for those covered under authority of Federal Employee Merit Systems Protection Board.

    In claiming it should have jurisdiction over Presidential Executive Branch appointments, it’s seeking an anti-democratic problem to which a solution already exists: hold POTUS accountable for POTUS appointees.

    Congressional interference in Constitutional Separation of Powers as OSC suggests is solution here may not pass judicial muster in any case.

    OSC knows this, but it’s been making political not legal arguments about the appointees’ conduct.

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