Of all the egregious things Betsy DeVos has done since becoming Donald Trump’s inept secretary of education, could a possible violation of the Hatch Act be the thing that takes her down?
The New York Times reports that during an appearance on Fox News earlier this month, DeVos criticized Democratic presidential nominee and former Vice President Joe Biden, saying his plan to abandon her school-choice policies is “shameful” and that he had “turned his back on the kids” and “turned his face in favor of the teachers union.”
The clip of DeVos’ appearance was then emailed to staffers of the Department of Education via an official email account with the subject line “Important Updates from U.S. Department of Education Secretary Betsy DeVos,” as well as posted to the internet via DeVos’ official Twitter account.
A complaint was filed with the U.S. Office of Special Counsel, and Scott Peterson, executive director of Checks and Balances Project watchdog blog, told the Times that Eric Johnson, a lawyer in the Office of Special Counsel Hatch Act Unit, confirmed to him that the agency would investigate the complaint, although the coronavirus pandemic may slow down the investigation.
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The Hatch Act, which was passed in 1939, “limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs.”
All federal civilian employees, including employees of the U.S. Postal Service, are covered by the Hatch Act. As a member of Trump’s cabinet, DeVos is technically an “executive branch member,” and classified as a “less restricted employee,” which means she is prohibited from, among other things, using her “official authority or influence to interfere with or affect the result of an election” and engaging in political activity that is “directed at the success or failure of a political party, candidate for partisan political office, or partisan political group—while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally owned or leased vehicle.”
The Fox News interview DeVos took part in under the auspices of her job as education secretary would fall under that prohibited activity.
Peterson told the Times that Johnson told him “We’ll investigate the matters in your complaint. The incident seems very well documented.”
The Trump administration has repeatedly demonstrated their lack of regard for the Hatch Act, as the Times notes:
But the Depression-era law has been largely ignored and even mocked by Trump administration officials. The Office of Special Counsel recommended in 2019 that Mr. Trump fire Kellyanne Conway, his White House counselor at the time, over repeated violations of the Hatch Act. But Mr. Trump declined to follow the guidance.
More recently, the administration brushed aside claims that Republican National Convention programming filmed at the White House violated the ethics law. Mr. Trump accepted his party’s nomination last month from the South Lawn of the White House.
So it comes as no surprise that Angela Morabito, a spokeswoman for the Education Department, said in a statement that DeVos did not violate the Hatch Act and that the complaint is “frivolous,” while noting that the Education Department would cooperate fully with any investigation.
“Not every allegation is based in fact; this is a classic example,” Morabito said. “The secretary was asked to respond to oft-repeated criticism of her and her policies, and she defended her policies, including discussing the history of that criticism. The Hatch Act does not prohibit that kind of exchange with a journalist. Case closed.”
As Politico notes, DeVos would be “one of the most high-profile Trump officials known to have been investigated for violating the Hatch Act.”
Depending on what OSC finds, she would be the second member of the Trump Cabinet to be found to have violated the law. At least 12 Trump senior officials have violated the Hatch Act, according to the OSC, the independent agency that probes possible violations. In most cases, the office decided that the violation was minor enough to merit only a warning letter. Only one case, that of former senior counselor Kellyanne Conway, was sent to President Donald Trump for action, and he didn’t act on it.
Peterson told the Times he believes DeVos’ interview and the distribution of it after the fact were “flagrant” violations of the act, and he thinks DeVos should be held to the same standards as any other federal employee who would be punished for the same action.
“It’s not fair that ordinary folks have to comply with those rules, whereas people at the top who are wealthy or powerful don’t,” Peterson said. “Aren’t we all supposed to play by the same rules?”