When Kayleigh McEnany appeared on Stuart Varney’s Fox Business show on Friday, in which she again refused to say that Donald Trump lost the election, she was identified not as the White House press secretary but as “Trump 2020 campaign senior adviser.”
A day earlier, when she was appearing on Fox & Friends, she was asked whether President-elect Joe Biden would receive access to daily intelligence briefings. “That would be a question more for the White House,” McEnany said.
The person at the White House in charge of answering that question is, in fact, her.
In the final week before the election, many in the media noticed when McEnany took on a dual role as press secretary, in which she is paid a $183,000 government salary, and in a capacity as a volunteer spokesperson for the campaign.
It’s an unusual situation but not necessarily in violation of government ethics laws, as long as government resources are not being used.
The Hatch Act bans most federal employees from engaging in political activity while they are serving in their official capacities. But it does not prohibit them from campaign work if it is on their own time. That allows, for instance, cabinet secretaries and administration officials to participate in campaign fundraisers, something that has occurred not just in the Trump years but during Barack Obama’s administration as well.
The difference with McEnany is that she is in the visibility of her role, with the lines blurred on when she is speaking for the White House and when she is speaking for the campaign.
Before she became press secretary in April, she was serving as press secretary for the Trump re-election campaign. And as the election neared, some journalists complained that during her White House briefings she was still acting more as a campaign spokesperson than government employee.
The watchdog group Citizens for Responsibility and Ethics in Washington has filed several complaints against McEnany, along with a number of other administration officials, for what they see as Hatch Act violations. On October 23, they cited McEnany for promoting Trump’s re-election on White House grounds and telling members of the media to look into the “Joe Biden-Hunter Biden situation.”
The Hatch Act, however, does not prohibit McEnany from her government job and campaign role, but she has to be mindful of when she is speaking for the campaign and when she is serving the White House. While a lot of journalists jumped on McEnany’s answer on Fox & Friends on Thursday, in that instance it actually was an effort to keep official White House business separate from campaign business. She appeared at the campaign headquarters and not on the White House grounds.
Jordan Libowitz, spokesperson for CREW, said: “This is something that the Trump administration excels at, which is the legal gray area” of the Hatch Act. There appears to be no provision that would require members of the administration to account for how they spend their time, but the law is clear that if they were to use government aircraft like Air Force One to fly to a campaign event, they would have to provide reimbursement. Nor can they use their official title for campaign activities.
McEnany did not respond to a request for comment. But she wrote on Twitter, “When you enter government, you do not lose First Amendment rights. Hatch Act says to separate govt & political activity, which I diligently work to do. Reporters (who ironically have freedom of press embedded in the 1st Amendment), are complaining about my 1A right to speech!”
Kedric Payne, general counsel and senior director, ethics, at the Campaign Legal Center, said that there is also further nuance after the election, as the Office of Special Counsel, which investigates Hatch Act complaints, issued guidance last week. But there, too, it is a bit murky. Federal employees can wear and display campaign items while on duty, but they are still prohibited from using resources on such things as election legal challenges or recounts. The Trump campaign has been pursuing challenges to the election results in a number of states, but they have so far been turned back in the courts.
In the case a press secretary also serving as a campaign spokesperson, Payne said, “I have not seen anything like this happen before. The big thing that comes out in this administration is the exploitation of the big holes in the Hatch Act.”
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