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Watchdog agency advises removal of Kellyanne Conway for violating Hatch Act

White House Counselor to the President Kellyanne Conway speaks during a military spouse employment summit held at the U.S. Chamber of Commerce headquarters in Washington, D.C. on Thursday, June 28, 2018.

CARLOS BONGIOANNI/STARS AND STRIPES

By FELICIA SONMEZ | The Washington Post | Published: June 13, 2019

WASHINGTON — The Office of Special Counsel on Thursday recommended the removal of White House counselor Kellyanne Conway from federal office for violating the Hatch Act, which bars federal employees from engaging in political activity in the course of their work.

The report submitted to President Donald Trump found that Conway violated the Hatch Act on numerous occasions by "disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media."

The agency said that because Conway was a "repeat offender," it was recommending that she be removed from federal office.

However, the decision about whether to remove Conway is up to Trump.

"Because Kellyanne Conway is a presidential appointee, the Office of Special Counsel itself does not have authority to discipline her," said Daniel Jacobson, who worked at the White House Counsel's Office under President Obama advising on ethics and compliance matters. "They can only recommend disciplinary measures and it is up to the president to take up the recommendation or not."

A senior White House official said Thursday the president is unlikely to punish Conway and instead will defend her. The White House counsel immediately issued a letter calling for the agency to withdraw its recommendation that Conway be removed.

In the past, Trump has privately dismissed concerns about the Hatch Act, sympathizing with aides found to have violated it, according to current and former White House officials.

Conway did not immediately reply to a request for comment.

The White House called the agency's assessment of Conway's actions "deeply flawed and violate her constitutional rights to free speech and due process."

"Others, of all political views, have objected to the OSC's unclear and unevenly applied rules which have a chilling effect on free speech for all federal employees," deputy White House press secretary Steven Groves said in a statement. "Its decisions seem to be influenced by media pressure and liberal organizations, and perhaps OSC should be mindful of its own mandate to act in a fair, impartial, nonpolitical manner, and not misinterpret or weaponize the Hatch Act."

The Office of Special Counsel is an independent federal agency charged with enforcing the Hatch Act and other civil service rules. The office is run by Henry Kerner, whom Trump nominated to the post. It is a separate agency than the office run by now-former special counsel Robert S. Mueller III, who led the investigation into Russian interference.

In a letter to Kerner, the White House requested his office withdraw and retract its report recommending Conway's removal.

White House counsel Pat Cipollone wrote that the office has inconsistently applied Hatch Act standards across Democratic and Republican administrations, and did not provide Conway enough time to respond to its allegations.

The office has no legal authority to establish binding social media rules for federal employees, and has applied an "overbroad interpretation" of the Hatch Act, Cipollone wrote.

"The White House takes seriously the principles codified in the Hatch Act and has continued to take affirmative steps to ensure compliance. At the same time, the White House must ensure that OSC exercises its significant authority in an appropriate and neutral manner," Cipollone wrote.

The agency's recommendation that Conway be removed was a rare move, according to Jacobson.

"How unique is this? I am not aware of any other time, to my mind, ever, where the Office of Special Counsel has recommended the removal of a White House presidential appointee," Jacobson said.

The Office of Special Counsel has found numerous Hatch Act violations by Conway.

In 2017, she was upbraided for touting the clothing line sold by Trump's daughter Ivanka Trump. The White House said Conway was "counseled" after that misstep, but no further disciplinary action was taken.

In 2018, Conway violated the Hatch Act on two occasions by making public comments supportive of one candidate and against another ahead of a special Senate election in Alabama last year.

Conway has brushed off the findings.

"Blah, blah, blah," Conway said last month when asked about the violations. "If you're trying to silence me through the Hatch Act, it's not going to work. Let me know when the jail sentence starts."

The reprimands of Conway are among a series of Hatch Act violations by Trump administration officials.

In late 2018, the Office of Special Counsel found six White House officials in violation of the law for using their official Twitter accounts to send or display political messages supporting Trump.

Others sanctioned by the Office of Special Counsel for political messages include former interior secretary Ryan Zinke; Stephanie Grisham, the first lady's spokeswoman; Dan Scavino, former White House social media director; and Nikki Haley, former U.S. ambassador to the United Nations.

Trump often praises Conway on TV and appreciates the way she deflects questions and attacks his political enemies, current and former White House aides said.

"She'll do the shows that nobody else dares go near," Trump said in a speech last spring praising her. "She'll just - I'll say, do this one or that one. No problem sir. Others say, sir, do you think I could take a pass please, I beg you please. Great going, Kellyanne. Thank you. What a help."

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