Kellyanne Conway’s latest scandal isn’t what you think
On November 20, 2017 on Fox and on December 6, 2017 on CNN, Kellyanne Conway used her official position as Counselor to the President to advance Roy Moore’s bid to become Alabama’s Senator. On March 6, 2018, the Office of Special Counsel notified 45 that she violated the Hatch Act twice. As the Report notes, “The Hatch Act prohibits federal employees from using their official authority or influence for the purpose of interfering with or affecting the result of an election. 5 U.S.C. § 7323(a)(1).” While Conway certainly violated the spirit of the Hatch Act, she didn’t violate the letter of the Act because her position is not subject to the Act.
The problem is that Conway is not an “employee” within the meaning 5 U.S.C. § 7323(a)(1). 5 U.S.C. § 7322(1)(A) defines “employee” as “any individual, other than the President and the Vice President, employed or holding office in – an Executive agency….” 5 U.S.C. § 105 provides, “For the purpose of this title, “Executive agency” means an Executive department, a Government corporation, and an independent establishment.”
The Report relies on two opinions of the Office of Legal Counsel for the proposition that “The White House Office is a component of the Executive Office of the President, which is considered an Executive agency for purposes of the Hatch Act.” However, Office of Legal Counsel opinions notwithstanding, the Executive Office of the President is not one of the current 15 Executive departments, not a Government corporation, or an independent establishment. Accordingly, the Executive Office of the President is not an Executive agency.
The position of Counselor to the President is not covered by the Hatch Act. While it is clear that Conway’s behavior was unacceptable, it does not appear to be illegal. Regardless, if 45 has any concern for the probity of the Executive Office of the President, she should be removed.
Bruce C. Cohen is an attorney and the author of Missouri Defendant’s Procedural Warfare Manual. He also writes fiction as Charlie Kenmore and Ken Charles.