The White House on July 15 issued a strongly-worded response to the House Oversight Committee’s efforts to subpoena the president’s counselor, Kellyanne Conway, to testify in Congress over allegations that she had violated the Hatch Act.
“Today, Chairman Cummings and Democrats on the House Oversight Committee continued their purely political campaign to harass the President and his close advisors,” a statement by the press secretary on July 15 read.
The Office of Special Counsel (OSC), an independent federal ethics agency, on June 13 had publicized a report (pdf) accusing Conway of having “violated the Hatch Act by using her official position to influence the 2018 midterm elections and 2020 presidential election through both media appearances and social media.”
The Hatch Act prohibits federal employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.”
The OSC then recommended that Conway be fired for having allegedly violated the Act. The OSC can make such recommendations but doesn’t have the authority to enforce them. The OSC is not to be confused with the office of former special counsel Robert Mueller’s investigation into Russian interference with the 2016 election, which held a similar name.
On June 26, the Democrat-led House Oversight and Reform Committee voted 25-16 to subpoena Conway to appear at a July 15 hearing to answer questions over alleged Hatch Act violations. She did not attend. She had earlier decided to not show up for a similar hearing on June 26.
Before adjourning the hearing, House Oversight Committee Chairman Elijah Cummings said that if Conway did not reconsider, the committee would convene a meeting on July 25 to hold her in contempt—a move that could lead to a lawsuit seeking to force her compliance.
“This is a clear cut case,” Cummings said on July 15. “We are not requiring her to testify about advice she gave the president or about the White House’s policy decisions.
“We are requiring her to testify before Congress about her multiple violations of federal law, her waste of taxpayer funds, and her actions that compromise public confidence in the integrity of the federal government,” he added.
Shortly after Cummings’ remarks, the White House reasserted that Conway, in her position as a senior adviser to the president, is immune to the subpoena.
“Democrats continue to overreach and politicize the Office of Special Counsel—this time, by trying to silence Kellyanne Conway with ill-founded, phony allegations about the Hatch Act,” the White House statement read. “The Committee clearly knows that under longstanding, bipartisan precedent founded in the Constitution, a President’s senior advisers cannot be compelled to appear before Congress.
“Immunity has been asserted for Ms. Conway, which the Department of Justice Office of Legal Counsel and White House Counsel strongly reaffirmed,” the statement continued. “This constitutional protection ensures that future Presidents of the United States can effectively execute their responsibilities of the Office.”
A July 15 letter to Cummings from the White House (pdf) stated that Conway is “absolutely immune from compelled congressional testimony” and cited a July 12 letter from the Justice Department’s Office of Legal Counsel (pdf) that concluded the same.
“As a member of the President’s inner circle, she may not be compelled by a congressional committee to testify about matters related to her official duties,” the OLC letter read.
“Testimonial immunity would provide scant protection if it gave way whenever a congressional committee attempted to compel testimony based on claims of improper or unlawful activity by those advisers or other executive branch officials,” it added.
Conservative outlets have noted that multiple Obama administration officials were said to have violated the Hatch Act, but weren’t removed from their positions.
The June 13 OSC report accused Conway of violating the Hatch Act on several occasions, including through her use of Twitter and appearances on television. In a letter accompanying the report, special counsel Henry Kerner asked Trump to remove Conway to set an example for other federal employees.
On June 14, President Donald Trump said that he won’t be firing Conway, telling “Fox & Friends” that “it really sounds like a free speech thing” and that the whole incident seems “very unfair.”
The OSC had provided the White House with a copy of the report on Conway at 5 p.m. on May 29 and demanded a response by 9 a.m. the following morning.
White House counsel Pat Cipollone issued a July 11 letter in response to the OSC’s report (pdf) writing that the “report is based on multiple fundamental legal and factual errors, makes unfair and unsupported claims against a close adviser to the president, is a product of a blatantly unfair process that ignored statutory notice requirements, and has been influenced by various inappropriate considerations.”
Zachary Stieber and Reuters contributed to this report.