We’re midway through US political convention season and on Thursday night (US time) President Donald Trump will accept the Republican presidential nomination.
Here’s why Trump’s decision on where to accept that nomination may be against the law — and could land White House staff members in legal hot water.
What’s Trump planning on doing?
The 2020 Republican National Convention (RNC) and Trump’s acceptance speech were originally slated to take place in Charlotte, North Carolina.
Most of that event was moved to Jacksonville, Florida, after North Carolina authorities rejected the original convention plan citing coronavirus concerns.
Trump then cancelled plans in Jacksonville too.
“I said, ‘There’s nothing more important in our country than keeping our people safe.'”
Trump then announced he would accept the Republican nomination at either the historic site of Gettysburg, Pennsylvania, or the grounds of the White House, before he finally decided on the latter.
“I’ll probably be giving my speech at the White House because it is a great place,” Trump said.
“It’s a place that makes me feel good, it makes the country feel good.”
In contrast, Joe Biden accepted the Democratic nomination at a private function centre in his home state of Delaware.
What’s so bad about Trump’s choice?
Because it might be prohibited by an 81-year-old law called the Hatch Act.
That law bans public servants from participating in activities contributing towards the success or failure of a particular political party — in this case, the Republican Party.
The reasoning is that if you work for a federal agency, you can’t use your taxpayer-funded office to advocate for your political beliefs or influence the result of an election.
It’s supposed to protect federal public servants from risking their job if they’re directed to take part in a partisan political activity and they don’t want to.
Has Trump broken the law?
The White House is granted to Trump by virtue of his presidency — and it lends his acceptance speech an air of political legitimacy that Biden can’t access.
Trump and Vice-President Mike Pence are specifically exempt from Hatch Act breaches — but White House employees aren’t.
By holding his acceptance speech on White House grounds, Trump would arguably be forcing White House workers to facilitate the headline event of the Republican National Convention.
The Democrat-run House Committee wrote to Erica Hamrick, the deputy chief of the US Hatch Act Unit, complaining this was in breach of the act.
In response, Hamrick confirmed: “The Hatch Act does not prohibit President Trump from delivering his RNC acceptance speech on White House grounds.”
“There may be Hatch Act implications for those employees, depending on their level of involvement with the event and their position in the White House.”
Democratic House Oversight Committee chairwoman Carolyn Maloney said: “President Trump’s idea to host this campaign event at the White House raises serious legal concerns for White House employees.”
“While President Trump has ignored the law repeatedly throughout his time in office, surely he can find a way to accept the Republican nomination without putting federal employees in legal jeopardy.”
But they’re White House employees. Aren’t they always participating in politics?
Not really. We’re not just talking about Trump’s inner circle here — although they’re included, too.
Affected staff will include chefs employed by the White House to cook food for the event, gardeners who will mow the White House South Lawn in preparation, and cleaners who will tidy up afterwards.
They’re not Republican party operatives — they’re just people who happen to be employed by the White House and might, through the course of their job, be directed to help facilitate the event.
First lady Melania Trump, as well as presidential adviser Ivanka Trump, are also at risk of being caught up in potential breaches.
Both are due to speak at the RNC and also plan to do it on White House grounds.
Why hasn’t this been an issue before?
It’s been an unwritten rule in US politics for generations that a president should not use the White House for partisan politics — only governing.
It’s understandably a fine line that other administrations have danced around, but legal experts say the Trump administration’s actions have gone further than any before.
Legal professor Kathleen Clark has told the LA Times Trump has been “hijacking White House events that are intended to communicate governmental policies [and] transforming them into partisan, political events.”
Deputy director of Citizens for Responsibility and Ethics in Washington, Donald Sherman, says Trump “has demonstrated time and time again that he is not interested in following those norms“.
What’s the Trump administration doing to mitigate this risk?
Republican National Committee chairwoman Ronna McDaniel said the Republican Party would reimburse taxpayers for any federal resources used in the event.
However, it’s not clear how that commitment will apply to federal White House employees receiving a taxpayer salary.
What’s the penalty for breaching the Hatch Act?
It’s hard to say. In theory, violating the act can lead to termination, demotion or being temporarily barred from federal employment, as well as suspension, reprimand or fines.
The problem is, the act gets breached all the time with varying consequences, meaning it’s not clear what the implications will be for US federal employees on Thursday.
While the US Office of Special Counsel (OSC) is the body tasked with identifying Hatch Act breaches, it does not have ultimate power over penalties imposed.
If a staff member found to have breached the act is a senior White House employee or the head of an agency, the White House generally decides what action to take.
On the other hand, if they are a rank-and-file employee, the report goes to the US Merit Systems Protection Board, which has the power to issue a binding penalty.
The OSC has labelled former White House adviser Kellyanne Conway a “repeat offender” for Hatch Act breaches and recommended the White House remove Conway from office.
That direction has not been heeded by the Trump administration.
In 2018, the OSC issued Hatch Act warnings to White House officials for tweeting slogans including “Make America Great Again” and “MAGA” to their government accounts — though it declined to pursue the matter further.
What can White House employees do?
If they’re worried they will breach the act, employees can take leave on the day planned for the speech.
“But, if the employees take leave, and the event is held on the White House lawn or in the residence, the Hatch Act would not prohibit the employees from attending the event.”
Senior members of the Trump administration have been quick to insist they are engaging in the RNC in a purely personal capacity.
White House press secretary Kayleigh McEnany said Ivanka Trump — who will be introducing her father before his acceptance — is participating “in her personal capacity”.
“The White House worked with the Office of Special Counsel to ensure that her appearance was in full compliance with the Hatch Act,” McEnany said.