In an unprecedented use of executive branch power, President Donald Trump took part in a pre-taped naturalization ceremony for five new U.S. citizens that was aired during the broadcast of the Republican National Convention (RNC). The 10-minute segment, which also featured (arguably) acting Secretary of Homeland Security Chad Wolf administering the Oath of Allegiance, left attorneys and government ethics experts with mouths agape. One of them went so far as to say that the president had quite literally filmed himself committing a federal crime.
The federal law in question–the Hatch Act –is commonly understood as a civil prohibition on federal employees using their office to participate in political activity that does not apply to the president or vice president. However, the act also contains a little-known criminal component, which makes it a crime for any person in an “administrative position”—including the president and vice president—to use their authority “to coerce any person to participate in political activity.” Such activity entails any actions aimed at affecting the success or failure of candidate for political office, including any activity directed toward the success of Trump’s reelection campaign.
“Trump just committed a crime, violating 18 USC § 595, prohibiting ‘a person employed in any administrative position’ from using ‘his official authority for the purpose of … affecting … the nomination or the election of any candidate for the office of President,’” Washington University in St. Louis School of Law professor Kathleen Clark wrote, attaching a clip of the segment. The penalty for such violation is up to one year in prison.
Clark, who specializes in legal and government ethics, had previously explained that Congress passed the Hatch Act to “ensure that government authority is not used for political gain.” She pointed to the president “improperly exploiting the White House” as part of his re-election campaign.
“It’s a crime for an executive branch official (including the President) to use official authority to affect a Presidential nomination of election, or to command a federal employee to engage [in] partisan political activity,” Clark wrote.
Here’s what criminal provisions of the Hatch Act say:
18 U.S. Code § 595. Interference by administrative employees of Federal, State, or Territorial Governments
Whoever, being a person employed in any administrative position by the United States, or by any department or agency thereof, or by the District of Columbia or any agency or instrumentality thereof, or by any State, Territory, or Possession of the United States, or any political subdivision, municipality, or agency thereof, or agency of such political subdivision or municipality (including any corporation owned or controlled by any State, Territory, or Possession of the United States or by any such political subdivision, municipality, or agency), in connection with any activity which is financed in whole or in part by loans or grants made by the United States, or any department or agency thereof, uses his official authority for the purpose of interfering with, or affecting, the nomination or the election of any candidate for the office of President, Vice President, Presidential elector, Member of the Senate, Member of the House of Representatives, Delegate from the District of Columbia, or Resident Commissioner, shall be fined under this title or imprisoned not more than one year, or both.
This section shall not prohibit or make unlawful any act by any officer or employee of any educational or research institution, establishment, agency, or system which is supported in whole or in part by any state or political subdivision thereof, or by the District of Columbia or by any Territory or Possession of the United States; or by any recognized religious, philanthropic or cultural organization.
[…]
18 U.S. Code § 610. Coercion of political activity
It shall be unlawful for any person to intimidate, threaten, command, or coerce, or attempt to intimidate, threaten, command, or coerce, any employee of the Federal Government as defined in section 7322(1) of title 5, United States Code, to engage in, or not to engage in, any political activity, including, but not limited to, voting or refusing to vote for any candidate or measure in any election, making or refusing to make any political contribution, or working or refusing to work on behalf of any candidate. Any person who violates this section shall be fined under this title or imprisoned not more than three years, or both.
Numerous other critics, most of them left-aligned, commented that the Trump administration’s conduct blatantly violated the civil prohibitions of the Hatch Act. Government watchdog group Citizens for Responsibility and Ethics in Washington (CREW) wrote that the ceremony was “so obviously, blatantly, insultingly a Hatch Act violation that it’s starting to seem like the Trump administration is going out of its way to find new ways to violate the law.”
John Dean, the former White House counsel for Richard Nixon, commented that the spectacle was “what authoritarians do, and their followers tolerate!”
A White House official, when responding to outrage over Hatch Act violations, offered the Wall Street Journal an explanation that was panned by former government attorneys. The official said the ceremony did not violate the Hatch Act because the administration “publicized the content of the event on a public website this afternoon and the campaign decided to use the publicly available content for campaign purposes.”
Attorney and law professor Daniel Jacobson, who previously served in the White House Counsel’s Office under President Barack Obama, vehemently refuted the administration’s reasoning.
“As a lawyer who used to enforce the Hatch Act at the White House, this is absolutely not how it works. If they filmed it knowing and intending that it would be used at the convention (which they obviously did), it violates the law,” he wrote.
https://twitter.com/Dan_F_Jacobson/status/1298473376093278209?s=20
Daniel Goldman, the former lead counsel for the House impeachment inquiry into President Trump, called the White House’s statement “dumb and pathetic”; UCLA law professor, former U.S. Attorney and Los Angeles Times legal affairs columnist Harry Litman simply said it was “wrong.”
[image via YouTube screengrab]
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