O'Rielly's Trump Comment Draws Fire; Groups Seek Probe of Alleged Hatch Act Violation
Two groups want a probe of FCC Commissioner Mike O'Rielly's comment at Friday's American Conservative Union's Conservative Political Action Conference calling for the re-election of President Donald Trump. The Project on Government Oversight (POGO) Tuesday asked the U.S. Office of Special Counsel (OSC) to investigate a "potential violation" of the Hatch Act, which restricts government officials' partisan political activity. That followed a similar complaint Friday from American Oversight (AO) that said O'Rielly "clearly violated" the law. O'Rielly's comment was "inadvertent" and he'll cooperate with the OSC, an aide said. There was also some controversy over a National Rifle Association award to Chairman Ajit Pai; the FCC said he's awaiting legal advice on an award rifle.
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O'Rielly, Pai and fellow Republican Commissioner Brendan Carr spoke on a panel at CPAC (see 1802230037). A moderator asked what can be done to avoid the "ping-pong" of shifting FCC policies due to election changes. "I think what we can do is make sure as conservatives that we elect good people to both the House, the Senate and make sure that President Trump gets re-elected," O'Rielly said to applause (exchange here at 10:20). "But there’s another thing you can do. We’re going to have a fight over the Obama internet rules in the next couple months in the U.S. Senate, and that’s going to matter, and that vote matters [see 1802270040]. And so making sure that people take the right course on that really does affect what policies we’re able to keep in place going forward. So, could certainly use everyone’s help out along those lines."
AO said it wasn't a close call whether O'Rielly violated the Hatch Act, which the OSC helps enforce. The law "generally prohibits federal officials from engaging in partisan political activity while on duty," said AO's letter to OSC Special Counsel Henry Kerner. "Advocating for the election of a candidate in a partisan election is the classic example." It said O'Rielly was clearly "appearing in his capacity" as a commissioner and "improperly engaged in partisan political activity by expressly advocating for the re-election of Donald Trump and exhorting the crowd to 'elect good people to the House [and] the Senate.'" It said OSC "published guidelines on how employees should navigate the fact that President Trump has already begun campaigning for his re-election in 2020. OSC was clear: the Hatch Act prohibits them, 'while on duty or in the workplace, from expressly advocating for or against [Donald Trump’s] reelection in 2020.'"
AO urged the OSC "to impose or recommend a sanction that takes account of this administration’s repeated transgressions of the Hatch Act, as well as Commissioner O’Rielly’s clear violation of black-and-white guidance from OSC." O'Rielly's "naked partisanship fundamentally undermines the independence that is supposed to be at the heart of the FCC's work," said Austin Evers, AO executive director. "It's unlikely the public's trust can be restored by anything less than his resignation."
POGO said the Hatch Act "bars federal employees from endorsing or advocating for or against partisan political candidates, political parties, or political organizations when speaking in their official capacity." It cited an OSC letter during President Barack Obama's administration as saying: "While federal employees are permitted to make partisan remarks when speaking in their personal capacity, the Hatch Act restricts employees from doing so when using an official title or when speaking about agency business." O'Rielly "was clearly speaking in his official capacity, rather than a personal one," said the group's letter to the OSC.
Like Sebelius
O'Rielly's situation is similar to that of Kathleen Sebelius, Obama's health and human services secretary, said POGO.
The group said OSC found Sebelius violated the Hatch Act by advocating for Obama's re-election and endorsing a North Carolina Democratic gubernatorial candidate (OSC release, letter). ("After the apparent Hatch Act violation emerged, her office reclassified a trip from official to political and she reimbursed the government for associated expenses," CNN reported Sept. 12, 2012.) POGO urged OSC to investigate O'Rielly's comment and "take appropriate action based on the findings." If the OSC "finds a violation, it should inform the President who can take appropriate action," emailed Nick Schwellenbach, POGO director-investigations. "With presidentially appointed, Senate confirmed officials such as O'Rielly, OSC is constrained by statute when it comes to seeking discipline."
OSC confirmed it received the two complaints.
"If there is an open investigation at OSC, it is difficult for us to comment more," O'Rielly's aide said. "Commissioner O’Rielly’s statement was unplanned and inadvertent. He tried to answer a question factually and did not intend to engage in advocacy. He will fully cooperate with OSC if they reach out, and takes the Hatch Act very seriously."
O'Rielly's call "looks like a pretty clear-cut violation," said Brendan Fischer, a Campaign Legal Center (CLC) attorney. He cited to us the same basic factors as AO and POGO did.
But Less Government President Seton Motley was dismissive. "Any outrage or attempt to adjudicate a Hatch Act violation predicated upon O’Reilly’s obvious sop at an openly conservative conference -- is titanically stupid and incredibly pathetic," he emailed us. "O’Reilly is an open conservative. At an openly conservative conference. To quote Cameron Crowe from his flick Singles: 'Desperation -- it’s the world’s worst cologne.'”
Pai received the NRA's Charlton Heston Courage Under Fire Award for his efforts to push through an "internet freedom" order in the face of fierce criticism and even threats. The FCC said Friday Pai was "honored" by the recognition. Walter Shaub, CLC's ethics senior director, Friday questioned whether Pai could accept a handmade long gun that comes with the award. "Anyone care to explain to me why the FCC thinks that the ethics rules allow Ajit Pai to accept the gift of an expensive handmade gun from the NRA, an entity whose interests he can affect (and has affected) by the performance of his official duties? Am I missing something?" tweeted Shaub, a former U.S. Office of Government Ethics director. He continued to press for a Pai response Saturday.
O’Reilly and Pai "are emblematic of many within the Trump administration, who are so charged politically in their mission that they readily trample the ethics laws and rules," emailed Craig Holman, Public Citizen lobbyist.
The award was "a complete surprise," and Pai "has not actually received the musket," said an FCC spokesman Tuesday. "Rather, he has asked the agency's career ethics attorneys for guidance to ensure that all laws are complied with, and he will follow their recommendation with respect to the ultimate disposition."