WASHINGTON — White House counselor Kellyanne Conway will not testify at a House Oversight and Reform Committee hearing Wednesday – a decision made by White House counsel Pat Cipollone even as an ethics czar has called for President Donald Trump to fire Conway.
Special Counsel Henry J. Kerner is expected to testify at the Wednesday hearing that Conway will apparently skip. In a June 13 letter to Trump, Kerner presented a second batch of alleged violations by Conway of the Hatch Act, a 1939 law that prohibits federal employees from using their posts for political campaign purposes. Kerner called Conway a “repeat offender,” whose repeated “partisan attacks on several Democratic Party candidates” warrant her removal from federal service.
Unbowed, Conway accused the committee of infringing on her free speech rights. “You know what they’re mad about? They want to put a big roll of masking tape around my mouth because I helped as a campaign manager for the successful part of the campaign,” Conway told Fox News Monday. Conway also dismissed the group Citizens for Responsibility and Ethics in Washington, which filed the complaints that prompted Kerner’s scrutiny, as a “left-wing propaganda machine.”
“If she wants to say this is only happening because CREW is whatever, it’s not just us that is saying this,” said CREW spokesman Aaron Rodriguez. He noted that Kerner is a Trump appointee.
Conway’s failure to appear Wednesday likely will prod the committee to subpoena her later in the day.
Remark leads to rebuke
In May, when a reporter asked Conway about two Hatch Act violations cited by Kerner, she responded, “Let me know when the jail sentence starts.”
It was that remark, Kerner offered, that led him to call for Conway to be canned. “Her defiant attitude is inimical to the law, and her continued pattern of misconduct is unacceptable,” the special counsel wrote as he recommended Trump fire Conway immediately.
“As a highly visible member of the administration, Ms. Conway’s violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions,” Kerner maintained.
Cipollone countered that the Special Counsel lacked the authority to punish Conway. Besides, “personal pique appears to have influence the outcome of this investigation, including the decision to make the extraordinary recommendation that the president remove one of his closest advisers.”
“As far as I understand the law, the special counsel does not have the authority to actually fire somebody,” CREW’s Rodriguez noted.
The Office of Special Counsel, which administers the Hatch Act, has no association with special counsel Robert Mueller, who investigated Russian efforts to meddle in the 2016 election.
At the heart of the dispute is what Trump supporters frame as a difference of opinion as to which actions should be considered political activities under the Hatch Act of 1939 and which constitute constitutionally-protected expression.
Oversight Committee member Rep. Mark Meadows, R-N.C., tweeted the Kerner probe “was a disaster. The (Office of Special Counsel) selectively applied rules, abused procedure and even violated Kellyanne’s constitutional rights. They should be ashamed. I look forward to questioning them tomorrow.”
George Washintgton University constitutional law professor Jonathan Turley, however, rejected Cipollone’s argument. It would defeat the purpose of the Hatch Act if White House staff, “who can cause the greatest harm,” were deemed exempt. “One can certainly question the act and its scope but neither Conway nor the White House get to choose what federal law will be followed,” Turley said. “Federal law is not a discretionary choice for federal employees.”
Past administrations tended to defer to the special counsel’s findings, or at least grant them lip service, rather than fight them. When President Barack Obama occupied the Oval Office, the Office of Special Counsel found fault with two of his cabinet members, Health and Human Services Secretary Kathleen Sebelius and Housing and Urban Development Secretary Julian Castro, who is running in the 2020 Democratic presidential primary.
The special counsel found Sebelius “made extemporaneous partisan remarks in a speech delivered in her official capacity on February 25, 2012.” Afterward, Sebelius reclassified the trip as a political exercise and the Democratic National Committee reimbursed the treasury for the costs.
In 2016, then-Special Counsel Carolyn Lerner found Castro wrongly mixed partisan politics with official duties during an April media interview. Rather than recommend a punishment, Lerner wrote to Obama, “As the upcoming presidential election approaches, this report offers an opportunity to deter violations by reminding federal employees of the Hatch Act’s restrictions.”
“To his credit, Secretary Castro acknowledged the mistake that he made,” then-White House press secretary Josh Earnest told the Washington Examiner. “He owned up to it, and he’s taken the necessary steps to prevent it from happening again. That’s the expectation that people have when you make a mistake, particularly in a situation like this.”
Outgoing press secretary Sarah Sanders often has deferred questions to relevant political committees when members of the press corps ask about pending elections. But Conway flouted such conventions.
“If Ms. Conway wishes to be a political consultant again she should leave the White House and join the reelection campaign, Washington election lawyer Jan Baran said recently. “In the meantime she should consider referring campaign questions to the campaign committee press office. That’s what any other White House official or congressional office routinely does. Government employees are not paid with taxpayer money to do campaign work. The Hatch Act doesn’t permit campaigning while on the government job.”
CREW has filed other complaints that led the special counsel to cite Trump administration figures including Stephanie Grisham, First Lady Melania Trump’s spokeswoman who will succeed Sarah Sanders as press secretary; former Ambassador to the United Nations Nikki Haley; and White House Director of Social Media Dan Scavino. CREW filed a complaint against Grisham because she had included Trump’s campaign slogan #MAGA, for Make America Great Again, on her official White House Twitter account in a post marking her three-year anniversary working for Trump.