Kayleigh McEnany is wearing two hats, one as a Trump 2020 campaign adviser and the other as the White House press secretary, charged with articulating the administration’s policies and positions to the press and the public.
The dual role raises questions about the appropriateness of taking on both tasks while drawing a taxpayer-financed salary of $183,000 a year.
And it has created some odd moments. On Thursday morning, McEnany appeared on Fox News as a campaign adviser and punted when asked if President Donald Trump should be providing President-elect Joe Biden access to the President's Daily Briefing on top intelligence matters.
“Well, I haven’t spoken to the president about that, so that would be a question more for the White House,” she said.
Joe Lockhart who served as White House press secretary under President Bill Clinton, tweeted that McEnany’s “behavior is both outrageous and damaging.” He called for House lawmakers to conduct an inquiry.
But Noah Bookbinder, executive director of the private Citizens for Responsibility and Ethics in Washington, said he did not believe McEnany was in violation of the Hatch Act, the law that prohibits federal employees from engaging in political activities while they are working in an official capacity. Bookbinder said McEnany has taken steps not to take questions about official White House policy while speaking in her personal capacity and advocating for the campaign.
“If she says that she is speaking in a campaign role and not in her official role, and she refuses to answer questions about official White House issues, it’s hard to see how she is using her official role for politics, and it looks like, at least as a technical matter, not a violation of the Hatch Act,” Bookbinder said.
Bookbinder’s group has been highly critical of Trump administration officials when it comes to abiding by the Hatch Act.
It has filed complaints against acting Department of Homeland Security Secretary Chad Wolf and Agriculture Secretary Sonny Perdue. It has also alleged previously that McEnany used her official position to engage in a political attack aimed at hurting Biden before the election.
When it comes to McEnany's recent campaign work, Bookbinder said it was not a technical violation of the law. Rather, he described it as “unfortunate, problematic and bad for the country” because she was disputing “clear election results on behalf of a campaign that is over.”
McEnany responded to her critics by tweeting from her personal account.
“When you enter government, you do not lose First Amendment rights. Hatch Act says to separate govt & political activity, which I diligently work to do,” she tweeted. “Reporters (who ironically have freedom of press embedded in the 1st Amendment), are complaining about my 1A right to speech!”
McEnany did not respond to follow-up questions about how much of her time is spent on her job as press secretary versus her work as a campaign adviser, and whether she is continuing to collect her full government salary.
With Trump largely staying out of the public eye since losing his reelection bid, McEnany has embraced being the campaign's messenger, appearing at a press conference and on Fox News in her “personal capacity” to raise unfounded allegations of voter fraud.
The campaign has filed at least 17 lawsuits in various state and federal courts. Most make similar claims that have not been proved to have affected any votes, including allegations that Trump election observers didn’t have the access they sought or that mail-in ballots were fraudulently cast.
Claire Finkelstein, a law professor at the University of Pennsylvania, was skeptical that McEnany avoided Hatch Act violations by stipulating that she was speaking in her personal capacity. She said that’s particularly the case for someone who oversees messaging from the White House.
“In certain positions you just can’t separate yourself as an individual from your official duties,” Finkelstein said.
“At the very least,” she added, “the appearance of impropriety is great there.”