Trump could face three years in jail for Hatch Act violations, legal experts argue

Provision of Hatch Act makes it criminal for any person to force a federal employee to engage in political activity

Two legal experts argue that the Department of Justice has additional reasons to file charges against former President Donald Trump following the announcement by the Office Special Counsel that 13 senior administration officials violated the Hatch Act.

Writing in a column for Slate, Professor Claire Finkelstein of the University of Pennsylvania, and Professor Richard Painter of the University of Minnesota Law School, argue that the report by the OSC adds to the case for a criminal investigation.

Both professors filed a Hatch Act criminal complaint against Mr Trump with the Justice Department’s Public Integrity Division in October 2020.

They wrote: “Although the president and vice president are immune to the ordinary Hatch Act prohibitions on use of public office for political purposes, there is a separate provision (18 USC § 610) under which it is a crime for any person to ‘intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in any political activity.’ Violations are punishable by up to three years in prison.”

The decision to investigate therefore lies with Attorney General Merrick Garland. They write: “The threshold legal determination Garland — or a special prosecutor appointed by Garland — must make is whether Trump coerced or ordered the political activity identified as Hatch Act violations by the OSC. If so, Trump could be liable to prosecution for political coercion under the aforementioned statute.”

They point to multiple accounts of Mr Trump while president exerting exactly this kind of pressure on members of his inner circle — James Comey as head of the FBI; White House lawyer Don McGahn; and all the way down to state election officials like Georgia Secretary of State Brad Raffensperger.

Vice President Mike Pence was also subject to Mr Trump’s coercive tactics, they argue, adding: “The pattern of behavior throughout Trump’s presidency suggests that the Hatch Act violations OSC has identified did not occur spontaneously.”

The OSC report states: “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.”

And they singled out incidents involving former secretary of State Mike Pompeo and homeland security secretary Chad Wolf, stating: “Both violations stemmed from requests that originated within the White House — or, in Secretary Pompeo’s case, possibly the Trump campaign or President Trump himself — and thus they reflect the Trump administration’s willingness to manipulate government business for partisan political ends”.

Professors Finkelstein and Painter note that a failure by the justice department to act on their complaint in October 2020 while Mr Trump was still in office “was a lost opportunity to stop his appalling behavior in its tracks”.

They write: “Had DOJ acted on our complaint in late 2020, it is possible the attack on January 6 would not have occurred. Moreover, Trump will continue from outside the presidency to pressure officials to break the law as long as he continues to have political ambitions. This is why it is imperative that the DOJ address the content of our criminal Hatch Act complaint against Trump, and events after our complaint up through January 6, as soon as possible.”