Thread by @marty_lederman

1/ Preliminary thoughts on the OSC/@KellyannePolls Hatch Act matter:

a. Perhaps there's a serious question whether the HA covers KAC's actions on her twitter feed--the principal issue discussed in the Cipollone letter.

b. However, the HA undoubtedly *does* prohibit ...

2/ ... KAC's comments in her official capacity media appearances, where the costs are "paid for by money derived from the Treasury of the United States," 5 USC 7324(b)(1)--the subject of the bulk of the OSC report at pages 6-13.

3/ With respect to that course of conduct, Cipollone doesn't put up much of a fight on the merits, because he really doesn't have much to say in KAC's defense. Cipollone offhandedly floats the notion KAC was merely commenting on the merits of policy questions, ...

4/ ... and not trying to influence elections--but that's patently absurd, at least as applied to many of her comments.

In any other administration, the Counsel's office would have provided countless briefings and memos in the Executive Office ...

5/ ... explaining that such comments are illegal when you're acting in your official capacity, paid by Treasury funds: The job of public officials, when they're working on the public dime, is not to get the President re-elected. This is very well-established and uncontroversial.

6/ WHC probably insisted on that here, too. Many WHC lawyers work on the issue virtually full-time, to ensure strict separation between public and electoral functions. Therefore it's very possible McGahn unambiguously and firmly instructed Conway to knock it off.

7/ But if so, she blew him off ... and now she even boasts about ignoring the Act.

In sum, there's no real doubt that she's violated sec. 7324(a) of the Hatch Act w/impunity.

8/ c. What about the Constitution? There's no serious "due process" issue, as @steve_vladeck explains, principally because OSC isn't imposing any remedy or denying her any property right.

nbcnews.com/think/opinion/…

9/ d. And as for freedom of speech, although it might be an issue w/r/t application of the Hatch Act to KAC's twitter account, it doesn't protect her comments made in her official capacity using federal funds, which are the core of the OSC report.

10/ e. OSC is therefore right: KAC's Hatch Act violations make her "subject to ... disciplinary action," including removal, a five-year debarment from Federal employment, suspension, reprimand, and/or a $1000 civil assessment. 5 USC 7326.

11/ But because she works in the EOP, the MSPB doesn't have jurisdiction over her, and thus it's up to Trump himself whether to impose such disciplinary action--which would be the norm. Of course he won't do so, because he doesn't give a hoot about compliance with the Hatch Act.

12/ Such inaction & contempt for the law will, of course, only encourage KAC and others to violate the HA further, and to ridicule it as she has (""Blah, blah, blah: Let me know when the jail sentence starts.").

thehill.com/homenews/admin…

13/ Trump's and Conway's reactions aren't surprising--they're entirely in character. The real question, however, is why Pat Cipollone & his WHC lawyers stay onboard & even defend Conway while she and Trump thumb their noses at the laws the WHC Office works so hard to enforce.