by Sharon Rondeau
(Jun. 14, 2023) — On Wednesday morning, this writer reviewed a letter sent June 7 by the U.S. Office of Special Counsel (OSC) to a complainant in a matter arising last year alleging White House Press Secretary Karine Jean-Pierre violated the Hatch Act while speaking disparagingly from the podium about “mega MAGA Republicans” days prior to the November elections.
One of the comments cited in particular in the complaint, filed by Protect the Public’s Trust, occurred at the opening of Jean-Pierre’s press briefing of November 2, 2022.
In her opening remarks Jean-Pierre decried “mega MAGA Republicans officials who don’t believe in the rule of law. They refuse to accept the results of free and fair elections and they fan the flames of political violence through what they praise and what they refuse to condemn…”
Protect the Public’s Trust comprises “retired and former public servants with decades of experience in government,” its “About” page states. “Protect the Public’s Trust is a project dedicated to ensuring there is only one standard – one set of rules that our leaders must live by no matter what party affiliation or ideological bent. Through research and education, we will monitor and inform the American people about the self-dealing and conflicts of interest, and the improper and illegal behavior of senior officials across the government…The American people deserve a government that is impartial, free from conflicts of interest, and operates without political interference or favoritism. Our goal is to ensure our nation fulfills that promise.“
The November 3, 2022 complaint was written by Michael Chamberlain, Director, Protect the People’s Trust, and addressed to Henry J. Kerner at the U.S. Office of Special Counsel and The Honorable Stuart F. Delery, Counsel to the President at the White House, and begins:
Yesterday, November 2, 2022, White House Press Secretary Karine Jean-Pierre
(Ms. Jean-Pierre) made comments disparaging President Biden’s political opponents as
“mega MAGA Republican officials who don’t believe in the rule of law,” among other
derogatory statements. Ms. Jean-Pierre made these statements during an official press
briefing, in her role as Press Secretary, from her podium in the James S. Brady Press
Briefing Room bearing the White House’s name, standing in front of the White House’s
insignia. Her statements were clearly made in her role as an employee of the White
House and appear to be political in nature, seeking the defeat of her political opponents in
the Republican party in the upcoming general election less than a week away on November 8.
In its response, the OSC wrote, in part:
Your complaint alleged that Ms. Jean‐Pierre used the phrase “mega MAGA Republican[s]” as part of “an inappropriate attempt to influence the vote.” In investigating the allegation, OSC discovered that Ms. Jean‐Pierre used the phrase “MAGA Republicans” repeatedly during official press briefings prior to the November 2022 midterm election. Although Ms. Jean‐Pierre never expressly instructed viewers to vote for or against Republican candidates for elected office, OSC concluded that the timing, frequency, and content of Ms. Jean-Pierre’s references to “MAGA Republicans” established that she made those references to generate opposition to Republican candidates. Accordingly, making the references constituted political activity.
Because Ms. Jean‐Pierre made the statements while acting in her official capacity, she
violated the Hatch Act prohibition against using her official authority or influence for the
purpose of interfering with or affecting the result of an election.
The OSC defines the Hatch Act as:
…a federal law 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. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.
Passed in 1939 by the 76th Congress, the law is titled “An Act to Prevent Pernicious Political Activities” and states, in relevant part:
It shall be unlawful for any person employed in any administrative position by the United States, or by any department, independent agency, or other agency of the United States…, to use his official authority for the purpose of interfering with, or affecting the election for the nomination of any candidate for the office of President, Vice President, Presidential electors, Member of the Senate, or Member of the House of Representatives, Delegates or Commissioners from the Territories and insular possessions.
The two-page letter responding to PPT indicated the OSC found Jean-Pierre to have been in violation of the Hatch Act but that it would take no “further action” other than having sent her a “warning letter.”
A video of Tuesday’s press briefing captured by NBC News stating it was “streamed 22 hours ago” containing Jean-Pierre’s response to questions on the Hatch Act violation would not play for this writer, instead going to live coverage of Wednesday’s briefing shortly after 12:00 noon EDT.
As of 2:02 p.m. EDT, the same video said to have “streamed 23 hours ago” continues to revert Wednesday’s presser after a several-second wait.
After reading OSC’s response to PPT’s complaint, The Post & Email called OSC’s Eric Johnson, referenced on page 2, for additional information. Reaching his voice mail, we asked two questions:
(1) Why the White House Counsel’s office “did not at the time believe that Ms. Jean‐Pierre’s remarks were prohibited by the Hatch Act,” and (2) if the “warning” letter sent to Jean-Pierre is available to the public.
Approximately one-half hour later, we received the following response from Zachary Kurz:
Hello Ms. Rondeau,
I was forwarded your voicemail by my colleague. I’m the communications director at OSC who handles media inquiries.
It is OSC’s practice not to publicly release Hatch Act warning letters. However, I saw that the complainant, who you mentioned in your vm, put out a press release yesterday that includes a link to OSC’s letter. I can confirm it is authentic. We are unable to comment further at this time.
We thanked him and found PPT’s June 13 press release. However, upon opening each of the three links appearing in the first paragraph, we did not find the letter sent to Jean-Pierre, and no other links appear in the post.
On its home page, PPT indicated it found OSC’s closure of the case “odd.”
In large part, the press release reads:
Today, Protect the Public’s Trust announced that White House Press Secretary Karine Jean-Pierre violated the Hatch Act, according to the Office of Special Counsel (OSC). PPT filed a Hatch Act complaint in November 2022 based on statements Jean-Pierre made in the leadup to the 2022 midterm elections.
“Ms. Jean-Pierre used the phrase ‘MAGA Republicans’ repeatedly during official press briefings,” according to OSC, and, “she made those references to generate opposition to Republican candidates.” Accordingly, “Ms. Jean-Pierre violated the Hatch Act,” which prohibits using official authority or influence for the purpose of interfering with or affecting the result of an election.
Despite its own finding, however, OSC is declining to pursue the matter. The Hatch Act has received some attention in recent years as other high-ranking officials have been deemed to have violated the law, and the rationale for the abrupt closing of OSC’s investigation “without further action” is likely to raise some eyebrows. OSC Hatch Unit Chief Ana Galindo-Marrone wrote that despite the clear and repeated violation of the law by Ms. Jean-Pierre, the “White House Counsel’s Office did not at the time believe that [her] remarks were prohibited…and it is unclear whether OSC’s contrary analysis regarding the use of ‘MAGA Republicans’ was ever conveyed to Ms. Jean-Pierre.”
The conclusion that disagreement from the President’s attorneys can override the OSC’s official interpretation seems like an odd deferral of authority in what has historically been an area in which OSC has claimed sole discretion. Further, Ms. Jean-Pierre’s awareness of OSC’s competing analysis, or lack thereof, is yet another unusual factor in OSC’s determination to close the case. Those officials previously found to have violated the Hatch Act are likely to consider the lack of action confirmation of a double standard for officials serving in different administrations.
However, the organization concluded, “Karine Jean-Pierre’s repeated efforts to condemn political opponents leading up to last year’s midterms were a clear violation of the Hatch Act, even one the Office of Special Counsel could not ignore,” stated Protect the Public’s Trust Director Michael Chamberlain. “We are glad that there remains some interest in investigating misconduct within the highest levels of government. Officials are supposed to exercise their authority for the benefit of all Americans, not act as an arm of a political party. Unfortunately, Ms. Jean-Pierre was likely following the lead of her boss, President Biden, who, despite repeated promises to return the country to normalcy and lower the political temperature, has often employed deeply polarizing messages and demeaning slogans targeted at his opponents. This episode provides yet another example why the American public’s trust in its government continues its downward spiral.”
We subsequently contacted PPT with:
Hello, I saw the letter from the USOSC regarding the captioned matter and called the attorney listed on page 2, Eric Johnson, with two questions. I got his VM and an OSC media rep responded to me by email. My first question was why the OSC “did not at the
time believe that Ms. Jean‐Pierre’s remarks were prohibited by the Hatch Act,” and the second was whether the “warning” letter would be made public. The response I received from the media rep was that on your website, a press release contained a link to the warning letter and that he could confirm it was “authentic,” for which I thanked him. However, I do not see such a link in the press release. Am I missing something, did you remove it, or is it somewhere else on your website other than in the June 13 press release? I’d like to publish today with your response if possible. Thank you! Sharon Rondeau, Editor, The Post & Email (www.thepostemail.com).
NBC News claims to have been the “first” to receive a copy of OSC’s response letter, with other outlets following suit. It is unclear if PPT “shared” it with NBC or if it came directly from the OSC.
NBC additionally reported that Chamberlain is “a former Trump administration official.”
In an arguably scathing, 63-page November 2021 report, the OSC determined 13 “senior administration officials” to have violated the law in statements made in connection with the upcoming 2020 election and that “The Trump administration took no apparent action to control or prevent senior administration officials from committing frequent and similar violations of the Hatch Act.”
Further, OSC found (p. 7):
The administration’s willful disregard for the law was especially pernicious considering
the timing of when many of these violations took place. OSC cannot, in most cases, stop
violations from happening in real time. Even apparently straightforward violations of the Hatch Act may not turn out to actually be violations upon further investigation. Therefore,
investigating alleged violations is the only way to ensure a fair result. Accordingly, OSC affords appropriate due process to the subject of a complaint and gathers the relevant facts before reaching a conclusion. As a result, OSC’s investigations can often stretch out for weeks or even months. This reality creates a window for an administration that is so inclined to ignore the Hatch Act in the final months of an election cycle, knowing full well that any public report or disciplinary action would not likely occur until well after the election. However, the benefit to the administration and resultant harm—the use of official authority or influence to interfere with or affect an election—would accrue on or before election day. As described in Part III, 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 during which OSC was unable to both investigate and resolve the violations before election day.
According to The Washington Examiner Wednesday, after contacting the OSC for comment on NBC’s article as to the Hatch Act finding, OSC responded that “it is not in its practice to release Hatch Act warning letters, so it is unable to confirm or deny NBC News’s reporting.” However, the NBC article does not purport to have quoted from the “Hatch Act warning letter” Jean-Pierre reportedly received.
As of publication, we continue to await PPT’s response. A follow-up question The Post & Email wishes to ask is whether media outlets received the OSC response letter before it did.