Jurisprudence

Could a New Government Report Spell Felony Charges for Trump?

It’s time for Merrick Garland to appoint a special prosecutor to investigate possible criminal Hatch Act violations.

Screenshot of Pompeo speaking from Jerusalem during the 2020 Republican National Convention livestream
It was illegal for Mike Pompeo to do this, and it was a crime if Trump put him up to it. Handout/Getty Images

Last week, the Office of Special Counsel released a report finding that 13 senior Trump administration officials violated the Hatch Act, a statute prohibiting federal officials from using their positions to influence the outcome of partisan elections. In August 2020, we filedHatch Act complaint with that office against Secretary of State Mike Pompeo for, among other things, using a diplomatic mission to Jerusalem to broadcast a speech to the Republican National Convention in which he advocated for the reelection of President Donald Trump. The recent OSC report affirms the analysis in our complaint and finds that Pompeo did indeed violate the Hatch Act.

Advertisement

There appear to be no immediate consequences for Hatch Act violators who are no longer in office. Furthermore, even while in office, Hatch Act violators can get away with it if the president is not willing to dismiss them. Yet the OSC finding may be significant for another reason, namely its implications for another Hatch Act complaint we filed, this one a criminal complaint against Donald Trump brought last October with the Department of Justice. Although the president and vice president are immune to the ordinary Hatch Act prohibitions on use of public office for political purposes, there is a separate provision (18 U.S.C. § 610) under which it is a crime for any person to “intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in any political activity.” Violations are punishable by up to three years in prison. Complaints under this provision are filed with the Public Integrity division of the Department of Justice. That means the decision of whether to investigate lies squarely in the hands of Attorney General Merrick Garland. The threshold legal determination Garland—or a special prosecutor appointed by Garland—must make is whether Trump coerced or ordered the political activity identified as Hatch Act violations by the OSC. If so, Trump could be liable to prosecution for political coercion under the aforementioned statute.

Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

The OSC report was attuned to this possibility. The agency came very close to saying that Trump condoned or encouraged the Hatch Act violations of the 13 senior officials. As the report maintained: “OSC has concluded that the Trump administration tacitly or expressly approved myriad Hatch Act violations committed within that critical period immediately prior to the 2020 election.” With respect to the Hatch Act violations by Pompeo and Homeland Security Secretary Chad Wolf, the report concluded that

both violations stemmed from requests that originated within the White House—or, in Secretary Pompeo’s case, possibly the Trump campaign or President Trump himself—and thus they reflect the Trump administration’s willingness to manipulate government business for partisan political ends.

Advertisement

Was Pompeo in the grip of a Trump political coercion campaign when he gave that August 2020 speech to the RNC? Were the other senior officials who were found responsible by the OSC for Hatch Act violations also being coerced by Trump? These are questions that the DOJ should answer.

Certainly, there are multiple accounts of Trump exerting precisely this kind of pressure on those in his inner circle. Numerous government officials, from the then head of the FBI, James Comey, to former White House lawyer Don McGahn, as well as state election officials like Georgia Secretary of State Brad Raffensperger, and even Vice President Mike Pence, have experienced the brunt of Trump’s coercive tactics. The pattern of behavior throughout Trump’s presidency suggests that the Hatch Act violations OSC has identified did not occur spontaneously.

Advertisement
Advertisement
Advertisement

The criminal complaint we filed against Trump was based on only a small subset of publicly available evidence relating to pressure put on executive branch officials to support the former president’s reelection campaign. Little did we know how much worse things would get after the November 2020 election, when Trump had become desperate to overturn Biden’s victory. The pressure Trump put on members of his administration and others to support the “big lie” rose to shocking proportions, leading to even greater potential violations of 18 U.S. Code § 610. For example, we now know that Trump plotted with a DOJ attorney, Jeffrey Clark, to devise ways to place pressure on state and federal officials, including individuals in the Justice Department who would help him call the results of the election into question. Yet it has been 13 months since we filed our complaint, and we have heard nothing from DOJ.

Advertisement
Advertisement
Advertisement

The failure to address Trump’s political coercion during his administration was a lost opportunity to stop his appalling behavior in its tracks. Had DOJ acted on our complaint in late 2020, it is possible the attack on Jan. 6 would not have occurred. Moreover, Trump will continue from outside the presidency to pressure officials to break the law as long as he continues to have political ambitions. This is why it is imperative that the DOJ address the content of our criminal Hatch Act complaint against Trump, and events after our complaint up through Jan. 6, as soon as possible.

Advertisement
Advertisement

Accountability is critical to democracy, and the OSC ruling on the Hatch Act recognizes that fact. The DOJ has been less forthcoming than the OSC in its willingness to call former Trump administration officials to account. From weak plea deals for those who stormed the Capitol to a reluctance to enforce congressional subpoenas, the DOJ is seemingly wary of directly investigating or supporting investigations of Trump’s inner circle. The OSC ruling, however, provides a model for what a nonpartisan agency devoted to accountability should look like. DOJ should take note.

Advertisement

There are consequences for democracy when government officials are allowed to misuse their positions for political ends. That is what the various Hatch Act provisions seek to prevent, and policing those boundaries is critical to preserving integrity in the executive branch. Allowing these violations to continue for months, if not years, with no response—in most of these instances not even a formal finding of a violation—has been a dangerous practice. While the OSC Hatch Act ruling is critical, it should have come many months earlier, at a point when those officials were still in office and could still be held directly accountable. If DOJ fails to act to investigate and prosecute crimes that took place before and after the 2020 election, meanwhile, it signals that executive branch officials are free to politicize their offices with impunity. Without accountability under our laws separating the power of the federal government from partisan politics, representative democracy in the United States will not survive.

Advertisement