It doesn’t matter that Sands left her job last month. The federal agency that investigates allegations of federal employees using their platform to engage in politics reported to Biden last week that her tweets ran afoul of the 80-year-old Hatch Act.
The Office of Special Counsel is investigating more than a dozen allegations of Hatch Act violations against high-profile Trump appointees even though they left office before Biden was sworn in as president, according to four people familiar with the cases.
That’s put Biden in a bind. He’s eager to move on from the investigations of the previous administration after Trump’s second impeachment trial cast a shadow over the first few weeks of his presidency. But House Democrats and government watchdog groups say it’s important to hold past officials accountable for their actions, arguing it will help prevent similar behavior in the future.
Sands, a former socialite, B-list movie star and chiropractor, unwittingly found herself in the spotlight after Trump started musing about trying to buy Greenland from Denmark. Her repeated retweeting of partisan news stories may have made her among the less discreet figures from the Trump era to be accused of violating the Hatch Act. But there were many others.
Most of them, including former Education Secretary Betsy DeVos, Trump’s daughter and son-in-law, Ivanka Trump and Jared Kushner, who both served as White House advisers, and former White House press secretary Kayleigh McEnany, are accused of promoting Trump on TV or Twitter. Others are accused of engaging in politics during the Republican National Convention and on Election Day when political events were held at the White House.
“The Hatch Act matters because our public servants must serve all Americans, not be a concierge service for crooked politicians,” said Rep. Bill Pascrell (D-N.J.), who requested one of the investigations and expects to introduce a bill strengthening the Hatch Act in the coming weeks. “The Trump’s regime’s assault on the rule of law has crushed public trust in government that must be restored.”
The White House is reviewing the report about Sands, according to an official. Neither Sands, a major Trump donor who is weighing a campaign for Senate in Pennsylvania, nor her attorney responded to messages. In a written response to OSC, Sands’ attorney states that they disagree with the agency’s “legal analysis and conclusions.”
The White House did not address the other outstanding investigations. But the OSC has penalties it could administer and Biden and fellow Democrats have several options available, too. The president could ban former federal employees who violate the Hatch Act, including Sands, from serving in the federal government again — or if they tried to return in a future administration, the Senate could hold up their confirmation or the oversight agency could pursue additional penalties.
If a federal official is still employed, the Office of Special Counsel often resolves cases by issuing a warning letter. Sometimes it disciplines employees — perhaps with a fine or suspension — or allows them to appear before the Merit Systems Protection Board, which hears cases of federal workers. With respect to Trump officials, some Democrats feel it’s imperative to have a public resolution of the outstanding cases.
“I worry a lot about where crimes may have been committed that turning a blind eye to them may set a precedent,” said Rep. Gerry Connolly (D-Va.), a member of the House Oversight Committee. “If we ignore it the way some people seem to be saying we should, then you guarantee this could happen again.”
The Hatch Act, named for a former New Mexico senator, restricts federal employees — aside from the president and vice president — from certain political behavior that could include tweeting certain messages, speaking about candidates, diverting official travel to attend political events and fundraising. It was enacted in 1939 after Democrats faced allegations of deploying Works Progress Administration employees to influence elections the year prior.
Formal Hatch Act complaints to the OSC have jumped more than 40 percent since Barack Obama’s last year in office. In total, the number of official complaints steadily rose from 197 in fiscal year 2016 to 253 in 2017; 263 in 2018 and 281 in 2019, the most recent data available. And watchdog groups say complaints involve more higher-profile staffers than ever before. At least a dozen Trump senior officials have violated the Hatch Act.
The agency generally closes cases after a federal worker leaves office, given its limited resources — it has just seven attorneys. But it could keep a case open if an inquiry is already underway, if the accusations are egregious, or if officials think it could help educate employees, prevent a recurrence or correct a problem, according to an OSC official familiar with the Hatch Act.
After President George W. Bush left office in 2009, the agency determined that some of his aides violated the Hatch Act by taking political trips at taxpayer expense while claiming they were traveling on official business. Bush was asked to repay the government.
What’s different now is the sheer number of former employees — many of them high-ranking —under investigation following the swearing in of a new president.
In addition to DeVos, Ivanka Trump, Kushner and McEnany, the agency is investigating a variety of other former officials, most after complaints were lodged by the group Citizens for Responsibility and Ethics in Washington, according to group spokesperson Jordan Libowitz. The list includes: Robert O’Brien, national security adviser; Ja’Ron Smith, deputy assistant to the president and deputy director of the Office of American Innovation; Alyssa Farah, communications director; Larry Kudlow, National Economic Council director; Dan Brouillette, Energy secretary; John Ratcliffe, director of national intelligence; Marc Short, Vice President Mike Pence’s chief of staff; David Friedman, ambassador to Israel; Brian Morgenstern, deputy press secretary and Karoline Leavitt, assistant White House press secretary.
Scott Peterson, the head of investigative watchdog blog Checks and Balances Project, lodged a complaint against DeVos after she slammed Biden for promising to roll back her school choice policies in a Fox News interview, which her department subsequently promoted. This week, Peterson said OSC confirmed it was still investigating the case.
The House Oversight Committee filed a complaint with OSC after Trump formally accepted his party’s nomination for president at the White House during the Republican National Convention in August. First lady Melania Trump and Ivanka Trump also delivered speeches from the White House while Pence spoke from another federal property, Fort McHenry in Baltimore, Md., best known as the site of a major battle in the War of 1812. The House Appropriations and Foreign Affairs committees filed a separate complaint after Secretary of State Mike Pompeo addressed the convention while on an official visit to Jerusalem.
OSC is looking into those allegations. A House Oversight Committee aide said Congress is waiting for the conclusion of the investigations to determine how the law can be strengthened. “We need OSC’s independent assessment of what happened in order to effectively craft reforms,” the aide said.
In 2019, 65 federal employees — both political and career — violated the Hatch Act. Most of them (49) received warning letters while others were subject to disciplinary or corrective action, according to OSC.
Zachary Kurz, an OSC spokesperson, said the agency cannot comment on or confirm the status of Hatch Act investigations.
Nick Schwellenbach, who used to work at the Office of Special Counsel and now serves as director of investigations at the Project on Government Oversight, said former employees who violate the Hatch Act can face serious consequences if they try to return to the federal government.
The agency can revive their case because the Hatch Act has no statute of limitations and try to prosecute the employee in front of the Merit Systems Protection Board, he said. Or if the position requires Senate confirmation, the agency could make a recommendation that could make that difficult, he said.
The president is only tasked with determining if a staffer should be punished in rare high-profile cases, according to the OSC official. Many of the pending cases of Trump appointees would fit that description.
In 2019, the agency recommended Trump fire one of his top aides, Kellyanne Conway, after she repeatedly used her office for political purposes — the first time it has made such a recommendation for a White House official.