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White House aides blur the legal lines between partisans and public servants

President Donald Trump’s social media director, Dan Scavino Jr., posted a message on his government Twitter account calling for the defeat of a Republican congressman who had angered the president. 

His West Wing counselor, Kellyanne Conway, weighed in on the Alabama Senate race during television interviews from the White House lawn. 

His son-in-law, Jared Kushner, used his White House title on a news release for Trump’s re-election bid. 

All had complaints filed against them alleging violations of the Hatch Act, the federal law that since 1939 has barred government officials from using their positions to engage in partisan politics. 

Over the past 14 months there have been at least eight complaints against White House officials for potential violations of the statute, according to a review by the agency charged with enforcing it. That number has put the Trump White House on a pace to far surpass the complaints against the staff of his predecessor. 

A handful of high-profile violations and the increased number of complaints suggest that, more than a year after taking office, Trump — who has openly defied many norms of government ethics and transparency — is surrounded by aides who blur the line between their roles as partisans and public servants, sometimes skirting or disregarding altogether decades-old standards that govern the behavior of senior White House officials. 

“This is an overall attitude this White House has about these rules, that they are just not all that important or they do not apply,” said Lawrence M. Noble, the senior director and general counsel of the Campaign Legal Center, the nonpartisan ethics watchdog group that filed the complaints against Conway. “There are clearly gray areas, but it’s not like occasionally they stumble into the gray areas; this seems to be willful ignoring of the rules.” 

The Office of Special Counsel, the federal agency which enforces the Hatch Act, has an email inbox and telephone hotline devoted to fielding complaints, and, according to one official, has heard about more potential violations since Trump was sworn in than is typical, particularly three years before a general election campaign. Over the eight years of Barack Obama’s presidency, for example, the office received a total of six complaints about conduct by White House officials — a number Trump’s administration has already surpassed. 

Not every complaint has led to a finding of a violation, and Trump’s aides argue that many are meritless claims by political opponents looking for ways to undercut the president. They also point to the increase in the use of Twitter and other platforms that make it more difficult to maintain a bright line between the official and the political. 

“There are unprecedented efforts by outside political groups to use Hatch Act complaints as a vehicle to obstruct this administration, and exponential proliferation of social media platforms and messaging in this administration compared to any previous,” said Hogan Gidley, a deputy White House press secretary. 

But the office recommended last week that Trump take disciplinary action against Conway, for having breached the statute during two television interviews late last year in which she used her official title while arguing in favor of Roy S. Moore, the Republican Senate candidate in Alabama, and against his Democratic rival, Doug Jones, with the White House as her backdrop. White House officials have suggested that Trump is not likely to punish her. 

At the same time, the office received a complaint against Kushner for having briefed White House officials during a staff meeting in the West Wing about Trump’s re-election campaign, and its recent hire of Brad Parscale to lead the effort. It was the second Hatch Act complaint lodged against Kushner in two weeks, after one that cited his use of his White House title on a Trump campaign news release announcing Parscale’s position. 

White House officials say they have made compliance with the Hatch Act a priority, providing multiple briefings to West Wing officials about how to avoid violations. The White House Counsel’s Office has stepped up its warnings to employees about the law since Trump officially kicked off his re-election bid, circulating fresh guidance from the Office of Special Counsel last week informing staff that, among other things, they must not use MAGA — the acronym for Trump’s 2016 “Make America Great Again” campaign slogan — in official communications or in their social media accounts. 

When she appeared on Thursday at a campaign event in western Pennsylvania for Rick Saccone, the Republican candidate in a special congressional election to be held on Tuesday, Conway made sure to note that she was there in her “personal capacity.” And when Trump tweeted on Friday to “Vote Rick” using the MAGA hashtag, Stefan C. Passantino, the chief ethics lawyer in the counsel’s office, circulated an email warning White House officials not to retweet it, according to White House officials who spoke on condition of anonymity because they were not authorized to discuss internal communications.  

Previous administrations have also run afoul of the Hatch Act, particularly in the runup to presidential elections. Two Obama administration Cabinet officials — Kathleen Sebelius, his secretary of health and human services; and Julián Castro, his secretary of housing and urban development — were cited for violations during Obama’s eight-year run, and a third, Hilda L. Solis, the secretary of labor, was investigated before she resigned. 

Concerned about appearing to use his office or his administration improperly to boost Hillary Clinton’s candidacy, Obama barred members of his Cabinet from addressing the Democratic National Convention in 2016. 

Since Trump’s inauguration, the Office of Special Counsel has found violations by at least three officials, including Conway. It issued a warning letter to Scavino for a tweet calling for the defeat in a primary of Rep. Justin Amash, R-Mich., who had been critical of the president. And it reported last year that Nikki R. Haley, the ambassador to the United Nations, had breached the Hatch Act in June by retweeting Trump’s endorsement of a South Carolina congressional candidate. 

Many other complaints have been investigated and dismissed. The office received a flood of calls in January, during a brief government shutdown, after the White House comment line informed callers that their inquiries could not be answered “because congressional Democrats are holding government funding for our troops and other national security priorities hostage to an unrelated immigration debate.” 

While the use of a taxpayer-funded public comment line to spread a partisan message was unusual in the view of many ethics experts, it was not considered a violation of the Hatch Act because it did not advocate for or against any one candidate.  

The administration can largely decide how strictly to enforce the Hatch Act, because the agency charged with policing it has no power to mete out discipline. The Office of Special Counsel refers violations by White House officials and presidential appointees to the president, while Cabinet secretaries determine how and whether to punish high-ranking officials in their agencies. In cases involving rank-and-file federal employees, the office can request disciplinary action by the Merit Systems Protection Board, a quasi-judicial agency. 

Trump’s lawyers have suggested in recent days that they take a relatively narrow view of the conduct prohibited by the Hatch Act, which has exemptions only for the president and the vice president. Sarah Huckabee Sanders, the White House press secretary, told reporters last week that Conway’s interviews — in which she clearly expressed support for Moore and opposition to Jones — did not violate the Hatch Act because she was expressing the president’s policy position.  

The White House Counsel’s Office had made the same assertion to the Office of Special Counsel, which rejected the argument in its report reprimanding Conway. The office said the position “lacks merit,” and “would render meaningless the Hatch Act’s prohibition against using one’s official authority or influence for the purpose of interfering with or affecting the result of an election.” 

If the White House’s position were adopted, the office said, “federal employees in their official capacity would be free to express electoral preferences and claim immunity from the Hatch Act by hiding behind the president’s statements about candidates and declaring they were merely carrying out their official duties in support of the administration’s agenda.”  

Watchdog groups said they were concerned that the argument gave tacit permission to Trump administration officials to disregard the law. 

“The White House made clear that not only are they not going to take disciplinary action, but they didn’t even accept the finding of a clear-cut case,” said Noah Bookbinder, the executive director of Citizens for Responsibility and Ethics in Washington, a nonpartisan watchdog group that filed the complaints against Kushner. “Which seems to send the message to White House employees that they can do whatever they like.”

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