Hatch Act Exception for High-Ranking Officials; Too Late for Outrage

I expect that Swaggerin' Mike will slip through the the aghast & outraged mob after his remote address to the Republican convention.

"It's all just shredding the Hatch Act," a current U.S. diplomat said, referring to the federal law that prohibits government employees from political activity on the job or in their official capacities.

But, is it? Not according to the Congressional Research Service report titled Hatch Act Restrictions on Federal Employees’ Political Activities in the Digital Age (2016):

The Hatch Act provides an exception to allow certain high-ranking officials to “engage in political activity otherwise prohibited ... if the costs associated with that political activity are not paid for by money derived from the Treasury of the United States.” The exception is available to employees who hold positions with responsibilities that “continue outside normal duty hours and while away from the normal duty post,” such as presidential advisers or cabinet officers appointed by the President with the advice and consent of the Senate. In other words, these officials may engage in political activities during what would be considered official working time, as long as federal funds are not used for such activities. Any such official must reimburse the U.S. Treasury for the federal resources used in campaign activities.

You can look it up in 5 U.S.C. §7324(b)(1), and 5 U.S.C. §7324(b)(2). A SecState is, in fact, free to engage in political activities which would otherwise be prohibited to lesser officials. Quod licet Jovis, non licet bovis.

That is perfectly plain in law. Like I always wondered in school, why does no one do the reading?

Of course, there  is also the argument about long-standing traditions:  

[Pompeo is] breaking with long-standing traditions aimed at isolating American's foreign policy from partisan battles at home.

But, is he? I'd like to know when, exactly, we observed any such tradition. In recent years we've had a SecState who had just finished running for President and another who was preparing to run for President. Folks, the position is far from being isolated from domestic politics. 

Everyone knows that 'politics stops at the water's edge,' or at least that's what Senator Vandenberg said back in the 1940s, right? Considering that he was a Republican who was in office throughout five consecutive Democratic administrations, that statement always struck me as his wish rather than a description of reality. Truman and Roosevelt never expressed any such sentiment, and they were the ones in charge of foreign policy, not Vandenberg. 

It's rather too late and far too unrealistic to be aghast and outraged about domestic politics creeping into the SecState's role.

ICE, ICE, Baby

This is an example of what I so dislike about journalism today. I care very little about the substance of the story - which is that Muslim detainees at an ICE facility in Miami have been served meals for the general population instead of prepared Halal meals - but it irks me when news outlets print an advocacy group press release without making the least attempt to question the contents or to comment on the group's bias. 

If you’re at all curious about the situation in Miami, and if you read the news in a critical light, the way all news should be read, you might first note that all of this material is coming from an advocacy group. And if experience has taught us anything, it is that advocacy group press releases are always balanced, forthright, unbiased, and if anything understated. Caveat emptor. 

Then, you might want to hear what ICE has to say about it before you participate in a moral panic. Get a grip on yourself. Prisons and detention centers are not hotels, and prisoners can’t order the meals they want.

Recognize that the COVID-19 situation must have impacted ICE detention centers just as it has everything else, so detention center food service has gone to one-size-fits-all. No more 'plating' or unnecessary handling of food. It is unwarranted to assume this is a deliberate assault on the religious freedom of Muslim detainees, or that they are being fed nothing but pork.  

The bottom line is that Muslim (and vegetarian) detainees of ICE, or indeed of any prison or jail in the world, will have to pick out what they want to eat from that which they are served. If the solution is to give them more veggies, I'm all in favor.

You Can't Beat a Dead Horse Too Often In an Election Season

That's Quarters No. 1 at Fort Myer, which is almost certainty not where SecState Pompeo resides, but it's one of a series of General Officer's quarters there and probably gives you an idea of what his place is like.

I looked up that photo because yesterday Politico re-did a NYT story from 2018 that insinuated there was some kind of scandal surrounding Pompeo's lease of a house on Ft. Myer, although it couldn't quite say what that scandal was, exactly. I commented on that story back then and thought it failed to score any points.

Politico revisits that old matter today based on a barely-smoking gun that consists of a memo from a Navy lawyer, written two weeks after Pompeo was confirmed, and taking a poor view of options for housing him in the Navy Hill annex which is located across the street from the State Department.  The possibility of a residence on Ft. Myer had not yet been broached at that time.    

The warmed-over story still strains to achieve scandal status. Here's my favorite part:

Pompeo personally pays “fair market value” for the residence, State officials said, without giving a dollar amount. At present, according to department officials, providing housing-related security for the Pompeos costs taxpayers $1.6 million a year, roughly $413,000 less than what it cost at his previous residence, the rental house in Virginia. Pompeo’s security costs also are around $1.5 million a year lower than the more than $3 million it cost to secure the homes of former secretaries Rex Tillerson and John Kerry, officials said.

Just to clarify, this is a story that Politico thinks makes Pompeo look bad, not Kerry or Tillerson or Hillary. As a taxpayer, I don't see it that way. In fact, I hope every SecState in the future will be offered a Ft. Myer residence, and if they choose to live elsewhere, we'll send them a bill for the $1.5-ish million in residential security measures that will be needed to make their private property secure enough for them to do the job that they sought.

The distinguished former Permanent Undersecretary for Management, Patrick Kennedy, now retired but still sharp as ever, was quoted: 

Patrick Kennedy, a former undersecretary of State for management, wasn’t privy to the specific details of the Pompeos’ arrangement, but he said there is merit to the idea that the government — the military if necessary — should provide housing for a secretary of State.

The key reason? “It’s getting harder to protect the secretary of State,” he said, noting that in today’s politically charged atmosphere, even top U.S. health officials are receiving threats.

A military base not only offers more built-in security, but it’s probably easier to arrange for such needs as the construction of secure facilities where the secretary can read classified documents, Kennedy said.

He should know these practical matters better than anyone else. I'll count that as an endorsement for Swaggerin' Mike's housing arrangement.

 

Swaggerin' Mike Struts Over Long-Delayed Publication of OIG Report Requested by House Democrats

SecState Pompeo has something to dance about. He wants you to know that the OIG confirms no wrongdoing in emergency arms sale to counter Iran, and he's doing a victory lap today.  

 

In brief, back in May 2019, President Trump declared an emergency that permitted the USG to sell arms to Saudi Arabia and other partners in the region without going through Congress. As the SecState noted in his press release today, that emergency authority is explicit in the law and has been exercised by five of the last seven Presidents. Yes, even Jimmy Carter. 

As of yesterday, we found out that the OIG had determined: “[T]he Secretary’s May 2019 use of emergency authorities was executed in accordance with the requirements of Section 36 of AECA ... the Emergency Certification Was Properly Executed ... and the documentation complied with the requirements outlined in the AECA.”  

What's more, "The OIG briefed these key findings to the Department in November 2019 and March 2020 under former Inspector General Steve Linick, including the finding that the OIG found no wrongdoing. The Acting Inspector General recused himself from this review. It is unclear why the OIG required an additional 10 months to finalize the report since its key conclusions were briefed to the Department." 

Unclear? Oh, don't be coy. Tell us what you really think. 

"In June 2019, every Democratic Member of the House Foreign Affairs Committee signed a letter directing the OIG to embark on this legal review, despite the fact that the Secretary exercised a specific authority granted to the Executive Branch by Congress in law ... Now that the OIG has completed its work, we hope these Members and media outlets who echoed their baseless accusations will publicly accept the findings of the report they requested from the OIG and immediately retract their statements from the past year." The press release cites a couple such statements by HFAC Chairman Engel and Ranking Member Menendez. 

Look at that timeline. Five months after the HFAC Democratic members requested that State OIG investigate this matter, the OIG reported its negative conclusions internally. After a further four months it reiterated that internal report, but still did not publish a final report, which would have publicly exonerated the SecState. 

Is it just my imagination, or is 2020 an election year? 

The Inspector General who was in charge during that slow crawl, Mr. Linick, was removed from office in May, 2020. A mere (?) three months after that, the report was finally published.

The Hatch Act at Home

Did you Feds know that the Hatch Act still applies when you are working from home? It does. And that could be a problem for federally-employed people who do social media from their (home) workplaces.

In fact, I believe those Feds who work for the foreign affairs department of the Washington DC area's largest employer have been officially cautioned that while teleworking from home they are still subject to the Hatch Act’s on-duty restrictions and therefore they may not engage in otherwise permissible political activities when they are on duty at home.

And what is social media these days except political activities, however defined?

Under the Hatch Act, a Less Restricted employee, like me, "while at work" may not ... "Post a comment to a blog or a social media site that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group."

That's on top of the usual forms of political activity the Act bans from the workplace, like displaying campaign materials, wearing partisan political buttons or t-shirts, and sending or forwarding content that advocates for or against a partisan political party, candidate for partisan political office, or partisan political group.

So, if I participate in a video team meeting and have a 'Vote for Smith' poster in the background, apparently I've violated the Hatch Act. Also, I like to use my bookcases as a video background, but some of my books might be triggering to some of my co-workers. If I post a warning before all team meetings that Some Scenes May Be Too Intense For Younger Viewers, would I be out of legal jepardy?

What if I take a short break from work to look at Twitter and, before I know it, retweet a message that says "Smith is a moron"? I guess I'll have violated the Hatch Act.

My only legal defense might be to claim I was not in what the Hatch Act calls "pay status" when I lost my head. But how is that status time-deliniated when we don't punch a time clock in our home offices? Must I wait eight or nine hours after I've logged on to the MS office app before I touch any blog or social media that deals with the pretty all-encompassing matter of advocating for or against a partisan political party, candidate, or group?

Will anyone be fired for home officeplace political activity in this dramtic 2020 election season? This will be a good one to watch.