Ethics law offers possible path for Trump prosecution

As federal investigators weigh the potential criminality of former President Trump’s efforts to overturn the 2020 election, legal experts say a decades-old ethics law — one routinely violated by members of Trump’s inner circle — could provide them a glide path to prosecution.

The Hatch Act prohibits electioneering by executive branch officials, including the promotion of the president’s political interests, during the course of their formal duties. 

The law was regularly flouted by the Trump administration while in office, a trend that continued throughout the two months between the presidential election and the Jan. 6, 2021, attack on the U.S. Capitol.

While the ethics law has been used almost entirely administratively since it was passed in the 1930s, experts say a rarely used criminal provision of the law could be a novel and relatively straightforward strategy to ensure consequences for Trump in what is sure to be a challenging atmosphere.

Norm Eisen, who served as special counsel to Democrats during Trump’s first impeachment, called the actions leading up to Jan. 6 part of a “disturbing and endemic pattern of conduct by Trump enablers in the White House that implicates the Hatch Act, including criminal aspects.” 

“This is no exception. It may be the culmination and the worst example,” he said of events and statements around the Capitol riot. 

“The problem is that criminal prosecution is really unusual. But everything that happened at the end of the Trump White House was also unusually wrong, and I think it is already the subject of criminal review. So given that context I think it is quite likely that prosecutors will take a fresh look at the Hatch Act among other potential remedies that have been more extensively discussed publicly.”

Much of the discussion over possible charges for Trump have focused on weighty crimes that carry heavier penalties, eyeing statutes that bar interfering with or delaying an official proceeding or conspiracy to defraud the United States.

But the sister statute for the Hatch Act, which bars coercing federal employees into political activity, carries a three-year prison sentence and could include a fine.

While the Hatch Act is typically thought of as applying ahead of elections, an opinion from the Office of the Special Counsel (OSC) issued the day after the 2020 election notes that an individual doesn’t cease to be a candidate until the Jan. 6 certification of the election results.

Some actions from Trump and his associates after the election — from a call to Georgia’s secretary of state to a pressure campaign at the Department of Justice (DOJ) to investigate alleged election fraud — offered early signs the Hatch Act may have been violated. 

But depositions with Trump staff and text messages from his chief of staff Mark Meadows released in the last month show the extent to which the White House was the locus for coordinated efforts between the campaign, lawmakers and the DOJ.

Indeed, the House committee investigating the Jan. 6, 2021, attack on the Capitol has used Meadows’s campaign activities — noting his “unofficial role in the Trump campaign” and calling him a “functionary” — as justification for fighting his claims that his testimony should be protected by executive privilege.

“The administrative version of the Hatch Act and the criminal version of the Hatch Act exists to make sure that there there’s clear guidance and a clear prohibition on officials using their government jobs to help facilitate any candidate for elective office winning or holding on to their power,” said Donald Sherman, chief counsel at Citizens for Responsibility and Ethics in Washington. 

“And it seems quite clear from the facts available, that that was not just something that Mark Meadows did, but it was his primary focus as White House chief of staff in the days and weeks after the 2020 election,” he added.  

“I mean, to call it a textbook case of a Hatch Act violation is a bit too on the nose. I think it’s far beyond what Congress or OSC or really anyone could have envisioned in terms of the worst-case scenario of an abuse of this principle.”  

The Jan. 6 committee is still grappling with whether to make a criminal referral for prosecution of Trump and others in his circle as part of its final work product capping its investigation. 

But it is preparing its own legislative proposals as part of a broader effort to ensure that Jan. 6 — the attack as well as the misuse of power — never happens again.

“You know what’s hiding in plain sight? In so much of the evidence that’s come out from a whole bunch of different sources is that there were government officials deeply involved in Donald Trump’s campaign, and so at the simplest level this is a Hatch Act issue spotter,” Rep. Jamie Raskin (D-Md.), one of the committee’s members, told The Hill.

“You can just identify so many cases where government officials were involved in reelection activity and political activity that went beyond reelection to arguable illegality.”

Good governance advocates have for years lamented the relative toothlessness of the Hatch Act. The president is exempt while in office, and other high-ranking officials are largely immune once they leave their posts. The only repercussions — at least administratively — are largely employment-related, like a reduction in salary grade or other demotions geared toward reprimanding rank-and-file employees. High-ranking officials can, however, be barred from future federal service.

“That’s kind of one of the general flaws in all of this,” Delaney Marsco, senior legal counsel for ethics at the Campaign Legal Center, told The Hill.

“Unless the president asks, their superior asks, it’s very hard to get any accountability for these types of violations. And once they leave office, it’s pretty much nonexistent.” 

The OSC, which oversees Hatch Act violations, wrote in its report documenting Trump administration violations of the law that its “enforcement tools are limited with respect to Senate-confirmed presidential appointees and White House commissioned officers.”

And on the criminal front, it’s not clear that the Justice Department would consider such a charge, though its recent request to the Jan. 6 committee to review some of its depositions suggests they could be weighing some sort of criminal charges against those in Trump’s orbit.

The OSC report noted flagrant Hatch Act abuses by 11 Trump officials while in office, including Meadows and others who have been interviewed by the committee: former press secretary Kayleigh McEnany and advisers Jared Kushner and Stephen Miller. The report, however, landed in November last year, well after the team had left office. 

Since then, depositions released by the committee in court cases walk through the extent of Meadow’s actions for the campaign: He was on Trump’s call with Georgia’s secretary of state and visited the state during its election audit. He was the coordinator of calls between lawmakers and the Trump legal team — at one point Rep. Marjorie Taylor Greene (R-Ga.) begged him for more time with Rudy Giuliani. And he was also involved in Trump’s pressure campaign at the DOJ.

“While [Meadows] is on the federal payroll, yes, he’s chief of staff to the president, but he’s not chief of staff to the president’s campaign, he’s chief of staff to the White House. And he seems to have completely lost that distinction,” said Kathleen Clark, a law professor at Washington University in St. Louis specializing in government ethics.  

She said the lack of repercussions for holding the Republican National Convention at the White House — something she called a “Hatch Act crime spree” — was a green light to those in Trump’s orbit to push things further.

“When you don’t enforce a law, when you don’t prosecute or take accountability when people violate a law, you’re giving them permission to violate it in the future. Draw a straight line from the Hatch Act violations at the RNC at the White House, right up through the post election violations,” Clark said.

Still, not all are sure Meadows himself violated the law or that his violations can be proven in a court of law. 

“If Meadows as chief of staff in the White House was putting any pressure on any federal employee to engage in partisan political activity, which I believe would include trying to reverse the election result, he is in violation of the criminal statute,” Richard Painter, chief ethics lawyer for the George W. Bush White House, told The Hill.

Painter filed a complaint with the DOJ while Trump was in office alleging he violated the criminal statute, asking for an investigation into him and his aides. 

“If I had enough evidence to feel that that complaint was justified in October 2020, whatever happened after the election was far worse,” he said.

But he said a conviction against someone like Meadows can be “a mess.” It would have to go beyond demonstrating the extent he organized meetings — even using White House phones is usually considered “de minimis” — and would need to show Meadows coerced others into helping the campaign.

“They’re allowed to engage in [their] personal capacity in political activity. And they’re allowed to do it in the White House,” he said. “Meadows can play politics one minute then do official work the next. You got to really take one hat off and put on the other.”

“If he sought to coerce a federal employee, including a staff member to a senator or representatives or a staff member of the Justice Department or the attorney general or anything like that, he would have committed a criminal offense,” Painter added.

An attorney for Meadows declined to comment.

But recent court filings in his battle with the committee lists a slew of examples in which former chiefs of staff “engaged in efforts related to their president’s election efforts.”

“While the Congressional defendants contend, without citing any factual support, that White House chiefs of staff do not get involved with an incumbent president’s reelection campaign, common sense and facts … are to the contrary. The breadth of the chief of staff’s duties necessarily includes activities relevant to the president’s reelection,” Meadows attorney George Terwilliger wrote in a Friday brief. 

Meadows has in the past brushed aside concerns he had violated the law.

“Nobody outside of the Beltway really cares,” he said in 2020 of the Hatch Act.

That’s precisely why some see action — either from the DOJ or from the committee — as a necessity.

“It’s not small potatoes because it goes to the heart of what our government is supposed to be — that it’s not just for the benefit of the office holders,” Clark said.

“Executive branch officials swear an oath, and it ain’t an oath to the president. It’s an oath to the Constitution.”