The Hatch Act is suddenly on everyone's radar after news broke that the Trump administration plans to use the White House South Lawn for President Donald Trump’s nationally televised nomination acceptance speech at the Republican National Convention later this month. Twitter lit up in response citing provisions in the Hatch Act that would be broken should Trump stage the high-profile campaign event on government property.
But what is the Hatch Act, and why is the Trump administration being accused of violating it? Put simply, the Hatch Act says that if you work for a federal agency, you cannot use the platform of your office, which is funded by taxpayers, to advocate for your personal political beliefs.
The Hatch Act became law in 1939 to protect federal workers from outside pressures to participate in a specific political activity or risk losing their job. The legislation came about after Democratic officials used federal workers in the Works Progress Administration to help them campaign in swing states. Its purpose is to separate public office from politics.
The philosophy behind the Hatch Act is to prevent federal employees from engaging in political activity while on the job which may sound confusing since they, you know, work in politics; however, the lines are made pretty clear. Regulations state that federal employees are barred from “using his or her official title while participating in political activity” or “using his or her authority to coerce any person to participate in political activity.” Political activity in this instance is considered activities directed toward the success or failure of a political party, candidate, or partisan political group. In this particular instance, this would be referring to the success of Trump’s reelection campaign.
But the question remains: What happens to the president and his administration if they engage in this kind of activity? There are some notable exceptions to the Hatch Act. Unless involving criminal activity, the president and vice president are technically exempt from these restrictions. The only instance in which the Hatch Act applies directly to the president – thanks to a 1993 amendment to the Act – is if they use their position to intimidate, threaten, or coerce a federal employee.
However, this doesn’t make the talk on Twitter irrelevant. “He may not be violating the Hatch Act, but he is ordering other people to,” Richard Painter, former chief White House ethics lawyer, told the Washington Post. “At a certain point you are using White House resources, and that is a violation of the Hatch Act.”
With criminal activity being the exception, Hatch Act violations don’t involve charges or possible jail time. The Office of Special Counsel, a special body set up just for the Hatch Act, investigates and determines whether a violation has occurred. It can be a career-ending error. The decision of whether to punish a person found violating the Act falls on the boss. If they decide not to do anything about it, the investigation ends there. A prime example is White House adviser Kellyanne Conway. She has violated the Hatch Act numerous times but avoids consequences despite the Office of Special Counsel advising that she be removed from her position.
In the case of using the White House South Lawn, it could be considered a misuse of congressionally appropriated funds for political gain which would be criminally enforceable. While the Hatch Act violations would fall on Republican National Convention planners and Trump administration employees rather than Trump, misuse of funds could reach Trump.
Former vice president Joe Biden has given mixed signals as to whether he would pursue Trump and his allies in investigations should he become president. The statute of limitations for misusing funds would not have run out in 2021, but Biden made it clear he wouldn't involve himself in Justice Department decisions. "In terms of having the Justice Department go look at an individual or whatever, the Justice Department is not my lawyer," Biden said in a May interview on The Late Show With Stephen Colbert.