Did Trump Officials Commit Violations of the Hatch Act during the RNC? An Explainer.

How the law came to be, and why it's so difficult to enforce.

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The Trump administration is facing charges of two new ethics violations as the Republican National Convention enters its final day. A speech by Secretary of State Mike Pompeo from Jerusalem and a naturalization ceremony performed by Acting Homeland Security Secretary Chad Wolf in the White House—both aired during the convention on Tuesday night—have revived calls for enforcement of the Hatch Act, a law designed to prevent federal employees acting in their official capacity from engaging in overt political activity.

How did the Hatch Act come to be? And how does it square with First Amendment speech protections? It all goes back to 1938.

As President Franklin D. Roosevelt approached his third term in office, Democratic New Mexico Sen. Carl Hatch introduced his namesake act after uncovering the substantial use of federal funds by the Works Progress Administration—a centerpiece of the New Deal—for the election of Democratic candidates in 1938. Congressional Republicans quickly took up Hatch’s cause, disturbed by the seemingly unbreakable cycle of Democratic victories through the 1930s, and the bill passed in 1939 with substantial bipartisan support. 

The Supreme Court upheld the law in 1947, dismissing challenges on various constitutional grounds. And it affirmed it in United States Civil Service Commission v. National Association of Letter Carriers (1973), saying it is designed to ensure that federal service “depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited.” Citing Thomas Jefferson’s concerns regarding executive overreach in political spheres, the Burger Court’s decision solidified the act’s limitations on federal employees—such as Cabinet members—to engage in partisan politics.

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  1. Avatar photo
    CVS

    Insofar as it purports to limit the ability of citizens to speak on their own time, and I would argue, at minimum, the ability of political appointees to express opinions, I think it's violative of the First Amendment.

    I also think there's a long string of cases in somewhat analogous cases (not directly, admittedly) that would point to that result. I also think this is a major reason why no enforcement has ever really been attempted.

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    Scarlette Tarte

    This nonsense that "Americans don't care", really needs to stop. We absolutely do care, very much.

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  3. Avatar photo
    Scarlette Tarte

    Just another thing we need to change after we get rid of Trump. We are going to have to change so many things, and enact so many laws, where none were needed before. Because our previous presidents all followed our "norms", and we didn't need "enforcement mechanisms".

    So yeah, now we have to make it a law that a sitting president can be indicted and charged with crimes under certain circumstances, we have to make it so no president can maintain his businesses without putting them in a blind trust, we have to make the Hatch act affordable, we have to make it a law that presidential candidates must release at least 10 years of tax returns, etc. And we ought to change the oath of office and have them say "I will be the president of ALL AMERICANS and will not seek to divide them constantly.". Lol, don't think we could actually do that one, but I sure would like it.

    That is the one thing that Trump has done...he has revealed how easily a jerk can just blow off our norms and get away with literal murder as president. ALL of those cracks need to be filled. What Trump has done can never be allowed to happen again.

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    1. Avatar photo
      Scarlette Tarte

      The "Hatch act ENFORCEABLE," not "affordable".

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      1. Avatar photo
        Victor Clairmont

        Heh. Edit button plz.

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  4. Avatar photo
    Bill Dyer (aka Beldar)

    If Mike Pompeo, acting in his official capacity as Secretary of State, had used federal resources to travel to Israel FOR THE PURPOSE of delivering a speech from there at the Republican National Convention, I could see the argument.

    If while giving a speech in Israel, in his official capacity as Secretary of State, he made a partisan political pitch for his boss' reelection, I could see the argument.

    But Mike Pompeo does not forfeit all of his First Amendment rights (free speech, free association, right to petition gov't) for all purposes and at all times. In his capacity as a private citizen, if called upon to speak publicly, using a private venue and resources, he may do so — provided he's not cloaking himself (or permitting himself to be cloaked) with the authority of his official position as head of the State Department.

    I don't see a Hatch Act problem for him, even if one takes the Hatch Act seriously. It's true that historically, candidates of both parties have usually exercised enough self-restraint to avoid sending out their Secretaries of State or Defense in an overt role as a campaign spokesperson. But that's a "taste" question, and we all know that Trump cares nothing for good taste or propriety.

    Now, does this complete the self-beclownment of Mike Pompeo? No, not at all. He completed that months ago during the ridiculous farce of the meetings between Trump and Kim Jong-Il. I think, and certainly hope, that he has no future in a post-Trump GOP.

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    Robert Knudson

    I give a really wide berth to this type of thing, but the naturalization ceremony from the (Acting?) DHS head at the White House during the RNC is so blatant I can't help but cry foul.

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    Nick H

    I have two questions. Would the naturalization ceremony have taken place had it not been for the convention? This one is obvious. Of course it would have happened. It might not have been in the same location or taped for broadcast, but it wasn't done just for the political use. Would Pompeo's trip to Israel have happened without the plan to use the location for his convention speech? I don't know this one, but I kind of doubt that it was just done for the show. So lets say both events are ones where the government would have spent the money it did regardless of whether they were featured at the convention or not. In my view that really weakens the case for a Hatch Act violation.

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  7. Robert Orban

    Given that there is this little thing called COVID19 that has upended social behavior and forced massive changes in the way both parties' conventions were held, I am inclined to cut people some slack and not nitpick about a borderline Hatch Act violation that probably would not have occurred if the conventions has been held normally.

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    1. Tim Johnson

      Slippery slope. And Covid is no excuse for Pompeo's speech.

      The Trump administration and Republicans in general don't really care about Hatch violations, it seems. It's just so much 'law and order' blah blah.

      Of course, if Biden wins, they will care again.

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    George.Skinner

    The problem with the defense of Trump officials on this point is that there's a longstanding pattern of Trump and family using his office and the government for personal gain. Each instance in isolation can be argued to be acceptable, given reasonable doubt. However, it defies credulity to argue these are all mischaracterizations given the number and pattern of instances. One is happenstance, twice is coincidence, three times is a trend.

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    1. Joe1776

      Trump went in a multi-millionaire he will leave a multi-millionair. Obama and Biden families go in with nothing much, and leave multi-millionaires. Lets not even talk about the Clintons.

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    2. Tim Johnson

      And if Biden wins, they will start caring very much about it again, of course.

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    DougAz

    I am really not enjoying the Federal Service employees and others who somehow feel entitled to pick and choose Laws to obey. Hatch Act. Logan Act.

    To some of us basic American citizens, I for one find this BS and pretty pathetic.

    In business, we follow laws. Or else. Compliance is a reality.

    Like WTF is up with elected and non-elected "servants of the People" just whimsically deciding on ethics, law, conflicts of interest.

    No thanks from me.

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  10. Patrick E

    I tend to tune out when politicians start squawking about Hatch Act violations, because it's one of the areas where the two parties are the most brazenly hypocritical. The Hatch Act is kinda like the Senate filibuster, the parties' positions flip on a dime.

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