For months President Trump has sown fear about the integrity of the November 3 elections, baselessly claiming that millions of fraudulent votes will be cast to defeat him. Trump protégés have busily purged state registration rolls, sharply limited polling places in blue districts, and attempted to hinder the U.S. Postal Service’s capacity to process historic levels of mail-in ballots due to the pandemic. Despite (or because of) the polls that show him trailing Biden, Trump is inciting his heavily armed followers with the fiction that the only way he can lose is by fraud.
None of this is surprising. Trump has told more than 20,000 lies since assuming the presidency, according to the Washington Post fact-checker. He was impeached for freezing security aid to Ukraine in order to pressure its president to falsely state that Joe Biden was under investigation. We learned about Trump’s “perfect call” first from an anonymous Intelligence Community whistleblower, and then from former Army Lt. Colonel Alexander Vindman. Both suffered a campaign of bullying, intimidation, and retaliation by President Trump for blowing the whistle to Congress.
We need more courageous whistleblowers given the wanton lawbreaking of the administration.
Take, for example, the Hatch Act. Born in response to allegations that a New Deal agency offered patronage jobs in exchange for votes in the 1938 midterm elections, the Hatch Act today is a cornerstone of a non-partisan, merit-based civil service. Career federal employees know and overwhelmingly honor the law’s restrictions on politicking in the workplace and on the taxpayer’s dime. For the few civil servants who do break the law, the U.S. Office of Special Counsel is empowered to seek disciplinary action, including employees’ removal from the civil service.
Thanks to the Trump administration, OSC’s Hatch Act Unit has been busy. Although the president and vice president are exempt from the Hatch Act, their subordinates are not. Some 13 Trump appointees have been cited for violating the statute, according to a recent report in Forbes, and there are another dozen Hatch Act cases currently open. But thus far, all there is to show for OSC enforcement are slaps on the wrist, which have not gone unnoticed by administration officials.
The Republican National Convention was an ethics-free circus: Trump and his operatives commandeered the White House grounds for partisan speechifying, conducted an on-camera ceremony to naturalize new Americans (even as the administration pursues an immigrant detention policy of separating children from their parents), and broadcast a campaign broadside by Secretary of State Mike Pompeo from Jerusalem. Days later, Secretary of Education Betsy DeVos attacked presidential candidate Joe Biden on FOX News, which the department subsequently promoted through its official channels. All of this despite the fact that the Hatch Act prohibits executive branch employees from using their official authority or influence to affect the outcome of an election.
The administration makes no attempt to conceal its contempt for the Hatch Act. Mark Meadows, chief of staff to the president, scoffed that “nobody outside the Beltway really cares” about the law. Before her recent resignation, Trump senior advisor Kellyanne Conway was a serial violator of the Hatch Act, waging partisan attacks on Democratic presidential candidates on Twitter and in the media. OSC repeatedly warned Conway that she was violating the law, warnings she derisively dismissed: “Let me know when the jail sentence starts.”
Ordinarily, OSC would have sought Conway’s removal by bringing an action before the Merit Systems Protection Board, the federal personnel “court.” But Trump has rendered an MSPB forum unavailable by failing to fill any of the three vacant board seats. So Special Counsel Henry Kerner resorted to writing the president a letter, imploring him to fire Conway: “As a highly visible member of the administration, Ms. Conway’s violations, if left unpunished, send a message to all federal employees that they need not abide by the Hatch Act’s restrictions. Her actions erode the principal foundation of our democratic system — the rule of law.”
Not only did Trump not fire Conway, he took no disciplinary action at all.
A career civil servant guilty of a fraction of Conway’s misconduct would be terminated. Period. End of story. Given such a gross double standard, it is no wonder that so many federal employees choose to collect their paychecks and keep their heads down. But as citizens and taxpayers, we should expect more.
The good news is that a courageous minority of public officials, like the former head of intelligence for the Homeland Security Department, Brian Murphy, still risk truth-telling. Murphy blew the whistle on high-level Trump appointees who ordered him to bury a report exposing a Russian disinformation campaign denigrating Biden’s mental health, and modify an intelligence assessment to diminish the threat posed by white supremacists. These threats are real, and demand action, not secrecy.
Much more whistleblowing like this is needed to bring the Trump administration to account and protect the integrity of our elections. For those ethical employees who make up the majority of those in government service: Be smart. Be brave. Prepare to blow the whistle on perils to our democracy. And know that when you do, skilled and dedicated attorneys and advocates stand ready to fight at your side.
Mark Cohen was the principal deputy at the U.S. Office of Special Counsel from 2011 – 2017, and currently serves on the Board of the Government Accountability Project, a whistleblower protection and advocacy organization