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Friday, September 15, 2023

Hatch Act

Trump's former chief of staff Mark Meadows argued that his case should go to federal court because he was acting in an official capacity.  They were not.  Claire O. Finkelstein at Slare:
[The] activities Meadows was engaging in were highly political in nature, and such activities are strictly forbidden under 5 U.S.C. § 7323(a)(1), otherwise known as the “Hatch Act.” This statute forbids executive branch employees from “us[ing] [their] official authority or influence for the purpose of interfering with or affecting the result of an election.” It is designed to prohibit executive branch employees from using their official positions to engage in partisan political activities.

In August of 2020, Richard Painter and I filed a complaint against Secretary of State Mike Pompeo, for example, for the speech Pompeo gave at the Republican National Convention while on a diplomatic mission to Israel. This was a “personal capacity” speech delivered during an official business trip as secretary of state, while Pompeo was representing the United States in his official capacity—a clear Hatch Act violation. While the president and vice president are not subject to the Hatch Act, they are subject to a parallel criminal Hatch Act statute that makes it a crime to coerce political activity on the part of any federal executive branch official. Believing as we did that Trump was indeed attempting to pressure members of the executive branch into engaging in Hatch Act violations themselves, Richard Painter and I filed a criminal Hatch Act complaint under 18 U.S.C. §610 against Trump during the 2020 campaign, alleging that he was coercing political activity on the part of employees in the executive branch by attempting to “intimidate or coerce” them into supporting his aims.

In the Georgia indictment, the Hatch Act plays a critical role: The activities Meadows performed in the run-up to the Jan. 6 attack on the Capitol building constituted a contribution to a partisan political effort to ensure that Trump was declared the winner of the 2020 election, despite having lost that election completely. Such naked political activities cannot be official duties for anyone who is a federal executive branch office holder. The entire Georgia campaign reads like one big Hatch Act violation—a civil Hatch Act violation for federal officeholders like Meadows and a criminal Hatch Act violation for Trump for pressuring his subordinates into civil Hatch Act violations.

It is striking how similar Trump’s behavior in Georgia in 2020 is to the criminal Hatch Act complaint we filed against Trump. The “perfect” phone call with Georgia Secretary of State Brad Raffensperger in which Trump attempted to coerce Raffensperger into coming up with 11,780 votes in order to reverse the results of the election in Georgia was an attempt to intimidate state officers into supporting Trump’s personal political aims—conduct that is precisely what the criminal Hatch Act provision was meant to address in the case of federal officers. In this case, the officers just happened to be state officials for the most part, with the possible exception of Meadows and other federal officials Trump tried to rope into his campaign.