The Office of Special Counsel found that 13 senior Trump administration officials violated the Hatch Act, a statute prohibiting federal officials from using their positions to influence the outcome of partisan elections. In August 2020, we filed a Hatch Act complaint against Secretary of State Mike Pompeo for using a diplomatic mission to Jerusalem to broadcast a speech to the Republican National Convention in which he advocated for the reelection of President Donald Trump. The analysis in our complaint was supported by the recent report from the OSC.
There are no immediate consequences for Hatch Act violators who are no longer in office. Hatch Act violators can get away with it if the president doesn't dismiss them. The implications for another Hatch Act complaint we filed, this one against Donald Trump, may be significant because of the OSC finding. The president and vice president are not immune to the Hatch Act prohibitions on use of public office for political purposes. Up to three years in prison is the maximum penalty for violations. The Public Integrity division of the Department of Justice is where complaints under this provision are filed. The decision of whether to investigate lies with Attorney General Garland. The threshold legal determination Garland must make is whether Trump coerced or ordered the political activity identified as Hatch Act violations by the OSC. If that is the case, Trump could be charged with political coercion.
The report was aware of this possibility. The agency was close to saying that Trump encouraged the Hatch Act violations. According to the report, the Trump administration tacitly or explicitly approved numerous Hatch Act violations committed prior to the 2020 election. The report concluded that there were Hatch Act violations by Secretary of State Mike Pompeo and Secretary of Homeland Security Chad Wolf.
The Trump administration is willing to manipulate government business for partisan political ends, and thus the two violations were related to requests that originated within the White House.
Was the August 2020 speech to the RNC given by Pompeo in the grip of a Trump campaign? Were the other senior officials who were found responsible for Hatch Act violations coerced by Trump? The DOJ should answer these questions.
There are many accounts of Trump putting pressure on those in his inner circle. Several government officials, including the then head of the FBI, James Comey, as well as former White House lawyer Don McGahn, as well as state election officials like Georgia Secretary of State Brad Raffensperger, have experienced Trump's coercive tactics. The pattern of behavior suggests that the Hatch Act violations that the OSC has identified did not occur spontaneously.
The criminal complaint we filed against Trump was based on a small amount of publicly available evidence relating to pressure put on executive branch officials to support the former president's reelection campaign. We didn't know how bad things would get after the November 2020 election, when Trump was desperate to overturn Biden's victory. The pressure Trump put on members of his administration and others to support the big lie rose to shocking proportions, leading to even greater potential violations of 18 U.S. Code 610. We now know that Trump plotted with a DOJ attorney, Jeffrey Clark, to put pressure on state and federal officials, as well as individuals in the Justice Department who would help him call the results of the election into question. We have not heard from the DOJ since we filed our complaint.
The failure to address Trump's political coercion during his administration was a lost opportunity to stop his appalling behavior. It is possible that the attack on Jan. 6 would not have happened if DOJ had acted on our complaint. As long as he has political ambitions, Trump will continue to pressure officials to break the law. The DOJ needs to address the content of our criminal Hatch Act complaint against Trump as soon as possible.
The Hatch Act is recognized by the OSC as critical to democracy. The DOJ has not been forthcoming in its willingness to call former Trump administration officials to account. The DOJ is wary of investigating or supporting investigations of Trump's inner circle, from weak plea deals for those who went to the Capitol to a reluctance to enforce congressional subpoenas. The model for what a nonpartisan agency devoted to accountability should look like is provided by the OSC ruling. The DOJ should take note.
When government officials are allowed to misuse their positions for political ends, there are consequences for democracy. That is what the Hatch Act seeks to prevent, and policing those boundaries is critical to preserving integrity in the executive branch. Allowing these violations to continue for months, if not years, with no response has been a dangerous practice. The Hatch Act ruling should have come many months earlier, at a time when the officials were still in office and could still be held accountable. If the DOJ fails to investigate and prosecute crimes that took place before and after the 2020 election, it means that executive branch officials are free to use their offices for political purposes. Representative democracy in the United States will not survive without accountability under our laws.
