Above the law
A new government report says 13 Trump officials violated the Hatch Act and absolutely nothing will happen to them for it.
By Daniel Larison
November 28, 202: Information Clearing House — “Responsible Statecraft ” The U.S. Office of Special Counsel found in its recent investigation that former Secretary of State Mike Pompeo and 12 other members of the Trump administration violated the Hatch Act when they illegally used their official positions to campaign on behalf of Trump and other Republican candidates ahead of the 2020 election.
Pompeo’s violation was arguably the most egregious and indisputable of the bunch. It was obvious at the time that a sitting secretary of state should not have been addressing a partisan political convention (the Republican National Convention) while overseas on government business (in Jerusalem). As a matter of propriety, a secretary of state is expected to stay out of the fray of partisan campaigning, and this is also required by law.
Because they are no longer in government, Pompeo and the other former officials will not face any consequences for their flagrant lawbreaking. This is a flaw in the law’s enforcement mechanism, but it is also typical of our political system, in which top officials and politicians commit open breaches of the rules and never pay any price for their offenses. All of this is part of a broader culture of elite impunity that prevails in Washington that permits people at the top of the government to get away with doing whatever they want.
Meanwhile, low-level whistleblowers get the book thrown at them and their lives ruined for revealing outrageous government practices and crimes.
Pompeo’s Hatch Act violation also fits into a larger pattern of his behavior at the State Department, where he appeared to use government resources to further his own personal political ambitions. His open political campaigning was part and parcel of his tenure at State, where he conducted himself as perhaps the most overtly partisan secretary of state of all time. Starting with the president himself, the Trump administration made a frequent habit of blurring or erasing ethical and legal lines when it suited their purposes, and Pompeo’s behavior was in keeping with that.
The report states that Pompeo’s violations of the Act “relate to his changing U.S. Department of State (State Department) policy to allow himself to speak at the RNC and thereafter using his official authority while giving that speech to promote President Trump’s candidacy.” The report found that Pompeo had made this change to department policy against the advice of department lawyers. He sought an exception to the rule prohibiting overseas campaigning by U.S. citizens employed by the government, and the exception was made only for himself so that he could speak to the Republican National Convention while in Jerusalem. Pompeo claimed then and later that he was speaking only in his “personal capacity,” but no other government employee would have been permitted to act as he did.
It was impossible to miss that Pompeo abused his authority to bend the rules so that he could deliver a campaign speech to a partisan gathering. When he made the policy change that “permitted” the speech, he was acting in his official capacity: “To facilitate that political activity, Secretary Pompeo had to exercise his official authority to amend the policy. That he did so to promote President Trump’s reelection is a manipulation of official business—in this case, State Department policy—for the purpose of benefiting a candidate for partisan political office.” When he was speaking to the convention while on official business outside the country, he was acting in his capacity as secretary of state. The OSC concluded that he was acting in an official capacity because he focused almost all of his speech on the administration’s foreign policy record, “thereby using his official authority in furtherance of President Trump’s reelection.”
Previous secretaries of state had been careful not to appear at partisan conventions in the past to avoid creating any impression that they were engaging in prohibited political activities. This was appropriate not only in order to comply with the law, but also to protect the State Department from being used as a tool in a partisan campaign. This was a practice that secretaries of state from both parties observed, and it was only with Trump and Pompeo that it was abandoned. Because the secretary of state is supposed to represent the entire country to the world, it is harmful to the department and the country if the head of the department is perceived to be nothing more than a partisan shill. That is exactly what happened during Pompeo’s tenure.
There have been much worse examples of elite impunity, of course, ranging from the lack of accountability for illegal torture under the Bush administration to the leniency shown to David Petraeus following his conviction for revealing classified information. Provided that a person is prominent and influential enough, he can commit crimes that earn ordinary government employees years or decades in prison while he receives only a slap on the wrist.
Someone like Gina Haspel can go from running a black site where detainees were tortured to running the CIA while encountering remarkably little resistance along the way. High-ranking national security officials tend to be given the benefit of the doubt and are held to a more lenient standard than their subordinates when it is the senior officials that should be held to the most stringent standards of all.
The OSC stated that it was releasing the full documentation of its findings “to deter similar violations in the future,” but no one is going to be deterred when there are no practical consequences for any of the lawbreakers identified in the report. As the report makes clear, the lack of accountability for violating the Hatch Act is baked into the existing rules, as “there is currently no mechanism for holding senior administration officials accountable for violating the law.”
Trump officials’ Hatch Act violations may seem like minor instances of abusing power for political advantage, but they are part of a larger political culture that excuses powerful and well-connected people involved in corruption and lawbreaking. They represent a violation of the public trust, and they were attempts to leverage control of government office to exercise corrupt influence on the electoral process. Especially when the lawbreakers will face no formal penalties for their wrongdoing, it is imperative that they pay a price for it in the realm of public opinion.
Daniel Larison is a contributing editor at Antiwar.com and former senior editor at The American Conservative magazine. He has a Ph.D. in History from the University of Chicago. Follow him on Twitter @DanielLarison and at his blog, Eunomia, here.