Did Trump Violate The Hatch Act?

Ken AshfordL'Affaire Ukraine, Trump & Administration, Trump ImpeachmentLeave a Comment

Title 18, United States Code, Section 610, known as the Hatch Act, makes it a crime — indeed, a felony, punishable by up to three years in prison — for “any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government … to engage in … any political activity.” Congress enacted this criminal statute in 1993, when amending the Hatch Act, to provide “additional protections against political manipulation of the federal workforce,” as a 2017 Justice Department publication put it.

In short, the president and his aides cannot commandeer the federal bureaucracy in service of the president’s purely partisan political objectives as a candidate for office. Notably, Section 610 does not require a “quid pro quo,” nor does it require that the object of the political activity constitute a “thing of value” — conditions required to demonstrate the existence of extortion, bribery and violating campaign finance law. If Trump commanded, or coerced or intimidated, State Department officials or other federal employees to engage in impermissible political activity — or attempted to do so — that itself would be a criminal violation of the Hatch Act. (This would also be true of other top officials who recruited government employees for the effort.)

In general, violations of the Hatch Act are pursued civilly by the Office of Special Counsel, an independent federal agency; punishment can include firing or suspension without pay. We all know this, because Kellyanne Conway violates the Hatch Act every day it seems. (At least, she used to).

And yes… the President and Vice President are immune from civil violations of the Hatch Act.

But Title 18, United States Code, Section 610, is criminal. And there is no POTUS or VPOTUS immunity.

The available evidence suggests that, on orders of the president and his acting chief of staff, career diplomats at the State Department were shunted aside to pave the way for an effort to push Ukraine to investigate Burisma Holdings (the company Hunter Biden was a director of) and supposed Ukrainian interference in the 2016 election. Sondland and special envoy Kurt Volker allegedly proceeded to press Ukrainian officials to do just that, using the promise of a White House meeting and, later, release of much-needed military aid as inducements. According to Taylor, Sondland said the president “insist[ed]” and “was adamant” that Zelensky publicly commit to these investigations and assigned Sondland to convey that message to Zelensky and a top aide, Andrey Yermak. Sondland repeatedly emphasized in his testimony that the president “directed” him to allow Rudolph W. Giuliani, the president’s personal lawyer, to guide those efforts, and that he understood Giuliani “was expressing the concerns of the president.”

There’s another Hatch Act-related offense that may have been committed. Under Title 18, U.S. Code, Section 600, which was part of the original Hatch Act, it is a crime for anyone to promise a benefit made possible by an act of Congress as “consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party” in connection with an election. According to the Justice Department, Section 600 is triggered when “corrupt public officials use government-funded jobs or programs to advance a partisan political agenda rather than to serve the public interest.” Although a violation of Section 600 is a misdemeanor, the Justice Department says that in egregious cases it could support a felony charge for conspiracy to defraud the United States (by interfering with the fair and impartial administration of a federally funded program).

In other words, if the president, or other officials, tied the receipt of congressionally authorized military aid to Ukraine to Ukrainian help for the president’s reelection campaign, that too could constitute a criminal offense. Such a scheme would echo a Nixon White House effort, dubbed the “Responsiveness Program,” to channel federal grants and contracts to groups or individuals who promised to support Nixon’s reelection bid. The Senate Watergate Committee’s report concluded that this diversion of taxpayer money from its intended use “to the political goal of reelecting the President” likely involved a criminal violation of the Hatch Act and a criminal conspiracy to defraud the United States.

So far, the Ukraine inquiry has focused on whether Trump improperly, or even illegally, solicited “foreign interference” in the 2020 presidential election. But the possibility that the president illegally directed improper election interference by U.S. officials is at least as disturbing, and it ought to be examined as part of the House investigation.