Tolerating violations of the Hatch Act undermines the rule of law in the USA

grennell aoc tweet

In a world where corruption and maladministration allow injustice, tolerate criminality, or even lead to avoidable deaths, what public officials do on social media can fly under the radar as a matter deserving public attention.

And yet, the United States Ambassador to Germany’s tweets are openly flouting the rule of law in a way that undermines American democracy.

Here’s the situation: On July 22, former White House global engagement director and U.S. diplomat Brett Bruen quote tweeted a tweet by Richard Grenell about Representative Alexandria Ocasio-Cortez on Twitter, noting that “it’s a serious violation of State Department rules for any American diplomat to publicly express political views, especially an ambassador serving overseas. Inspector General previously warned Grenell about his Twitter use. It’s time he get back to serving the American people.”

I saw Bruen’s tweet and flagged it.

In response to my description of this tweet as “political activity,” US Ambassador to Germany Richard Grennell did not reply. Instead, he broadcast my question in a “quote tweet,” stating “You can’t silence me with your phony political activity arguments. Absurd comments must be corrected so our allies know we don’t run concentration camps at the US border.”

The key contention of Grennell’s argument for directly addressing a member of Congress is that he “must correct” the description by Representative Alexandria Occasio-Cortez (@AOC) of the U.S. facilities housing migrants and their children as “concentration camps on our southern borders.”

To state the obvious, this is a complex issue that Twitter is not made to explore. For many people, despite the existence of concentration camps before World War II, the term “concentration camp” instantly recalls Nazi death camps. Making careless, simplified Holocaust analogies can and does “demean the memory of the dead.”

It’s worth noting, therefore, that experts on the Holocaust and genocide have signed an open letter that supports Rep. Occasio-Cortez’ characterization.

If ambassadors need to correct the record, they should issue statements that inform Germans and the world how the U.S. government is treating migrants seeking opportunities and refugees seeking freedom and asylum at our borders. They should not dismiss relevant laws governing their partisan political activity as a condition of service as “phony.”

They should explain to the public, other nation states and Congress whether they represent the multi-racial, pluralistic liberal democracy that has defined the American experiment in modern history. Do they defend civic nationalism and the basic principle that our country belongs to all of its citizens, regardless of religion, race, gender, color, or sexual orientation? Or are they defending the illiberal ideology of a racist president who rose to power by promoting a lie about our country’s first African-American president?

Careless rhetoric about the Holocaust can cause us to “lose sight of the ordinary human choices that made genocide possible.” Niemoller’s famous words about the concentration camps remain relevant today, with respect to how a state treats those who have the least power, from undocumented immigrants to religious minorities to other marginalized or at-risk members of our communities.

Never forget that people died in the Holocaust because Germans looked on while a fascist government systematically dehumanized them, put them in concentration camps, and then murdered them, completely the cycle of genocide — or that the Aryan ideology of that time endures as ethno-nationalism and white supremacy today.

Instead of singling out Members of Congress, ambassadors should show evidence of how the U.S. government is upholding the human rights of those being taken into custody, particularly children detained in warehouses and brought to “holding centers” in Texas. Current or future “migrant protection protocols” should be the subject of continued scrutiny from human rights lawyers on both sides of the border.

Why upholding constraints to the speech of ambassadors are constitutional and important

Putting aside how the US government and its representatives should be engaging the world and public about its immigration policies, Grenell’s claim about him being “silenced” has much broader implications for how the rule of law is being interpreted and upheld in the Trump administration.

In 1939, the federal Hatch Act of 1939 imposed restrictions on federal employees engaging in “certain partisan political activities” while they are employed in public service in the U.S. government.

According to the U.S. Office of Special Counsel (OSC), an independent federal agency, is charged with administering the Hatch Act, “the law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.​​​​ ​​

The Supreme Court has reviewed the constitutionality of the Hatch Act – twice – and concluded that the law’s prohibitions on the speech of US officials are constitutional.

In February 2018, OSC updated its guidance on social media that clarified when federal employees’ use of social media violates the law.

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The State Department hasn’t effectively held Grennell accountable for his transgressions, as highlighted by Bruen, who  pointed out that “State Department’s Inspector General (@StateOIG) also ordered you & other ambassadors to cease use of personal Twitter accounts for statements on public policy (@NikkiHaley had to surrender hers). Here’s the report: https://www.stateoig.gov/system/files/esp-19-02.pdf

I asked OSC about Grennell’s tweet on Twitter, but as it’s was unclear to me if the Hatch Act unit monitors social media or if OSC takes questions there, I directed the following questions to OSC’s Hatch Act unit:

  1. Does this tweet by U.S. Ambassador to Germany Richard Grennell’s tweet about Representative Ocasio-Cortez violate the Hatch Act?
  2. If not, why not? If so, what should be the consequence?
  3. Who is entrusted with ensuring that US ambassadors uphold the law and holding them accountable?
  4. Is it accurate or ethical for a US ambassador to describe this as “phony political activity argument” to the public?
  5. What impact upon compliance with the Hatch Act has President Trump’s decision not to fire White House official Kellyanne Conway had?
  6. Was the President correct that OSC is “trying to take away their right of free speech,” with respect to its civil servants making partisan political statements, or that they “got to have the right of responding to questions?”

(If OSC responds, I’ll update this post.)

Here’s the bottom line: The Hatch Act is a key tool for the U.S. government to regulate corruption (aka the abuse of public power for private gain, which this case is the misuse of an official position to engage in partisan political activity) and thereby keep the civil service nonpartisan, preventing appointees from any intimidation by their elected supervisor or their appointees.

Neither the language of the Hatch Act nor the people who enacted it eight decades ago anticipated, however, a corrupt president who does not hold himself accountable to federal ethics laws, nor those whom he appoints to public service.

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In June 2019, the Office of Special Counsel sent a report to President Trump that found that Counselor to the President Kellyanne Conway “violated the Hatch Act on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media,” noting that employees of the White House are not exempt from the law.

In the letter accompanying the report, OSC special counsel Henry J. Kerner noted that “Ms. Conway’s violations, if left unpunished, would send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions thus erode the principal foundation of our democratic system—the rule of law.”

Trump did not punish Conway for repeatedly breaking the law. He defended her and claimed the law’s restrictions weren’t “fair.”

As I told Grennell, every American has a right to free expression, but the Hatch Act mandates that civil servants and White House officials accept limits to their speech when they enter public service. (If their wish to engage in partisanship outweighs the value they place on that service, they can and should simply resign.)

President Donald J. Trump’s toleration of U.S. government officials flouting a law expressly designed to prevent civil servants from misusing their official positions is actively undermining public trust in the integrity of U.S. institutions, equal justice under our laws, and American democracy itself.

Trump’s refusal to discipline appointees who repeatedly violate the law, inform the public of that law’s purpose, and spread disinformation about the constitutionality of its limitations with respect to U.S. government officials, from White House staff to ambassadors, adds up to the president violating his oath to uphold the Constitution.

That’s illiberalism, not democracy based upon the principle that no person is above the law.

Neither house of Congress should be tolerating it, any more than it does Trump’s obstruction of justice or ongoing, emolumental corruption through his businesses around the globe.

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