By David J. Bruno, Esq.
On April 3, 2017, I appeared on Fox News Channel’s America’s News HQ with host Eric Shawn and Fox News Legal Analyst Mercedes Colwin to discuss whether the White House Social Media Director violated the Hatch Act with a political tweet and whether General Flynn should invoke his 5th amendment right to remain silent.
As discussed in the appearance, White House Social Media Director Dan Scavino tweeted a message which was directed at a Michigan Congressman that has been adversarial with the current administration.
In response to the tweet, Professor Painter, a former White House Ethics lawyer, responded that the tweet was in violation of the Hatch Act. Generally, as applicable to this issue, the Hatch Act bars executive branch employees (other than the president or VP) from (1) using federal tax dollars to fund partisan political activity and (2) speaking in their official capacities for or against partisan candidates for elective office.
In my opinion, Director Scavino’s tweet is lawful and not in violation of the Hatch Act. First, the tweet came from his personal twitter account, which is different from his official White House twitter account. Additionally, there has not been an allegation that this tweet was done while working. Finally, the Office of Special Counsel, the agency responsible for regulating and enforcing the act, has stated in a FAQ publication on the Hatch Act that even an inclusion of an employee’s official title or position on one’s social media profile, without more, is not an improper use of official authority.
Professor Painter points to the “official picture” profile as evidence that he was speaking in his official capacity. However, as the OSC FAQ publication states, even the use of the employee’s official title in the profile is permissible.
For further clarification, he is the actual text from the first FAQ question in OSC publication which can be found at https://osc.gov/Pages/The-Hatch-Act-Frequently-Asked-Questions-on-Federal-Employees-and-the-Use-of-Social-Media-and-Email.aspx.
Q: May a federal employee engage in political activity on Facebook or Twitter?
A: Yes, federal employees may express their opinions about a partisan group or candidate in a partisan race (e.g., post, “like,” “share,” “tweet,” “retweet”), but there are a few limitations. Specifically, the Hatch Act prohibits employees from (1) engaging in any political activity via Facebook or Twitter while on duty or in the workplace and (2) referring to their official titles or positions while engaged in political activity at any time (note that inclusion of an employee’s official title or position on one’s social media profile, without more, is not an improper use of official authority).
It is also worth pointing out that Professor Painter also published an op-ed saying that he had filed a complaint against the FBI with the OSC and with the Office of Government Ethics about the same matter.
Additionally, we also discussed the recent statement made by General Flynn’s attorney to congress asking for immunity. There have been many people, including General Flynn himself, that believe a request for immunity or an invocation to remain silent means a person is guilty. I wholeheartedly disagree. Rule Number 1 is to advise a client who is the target of an investigation or prosecutor to invoke their right to remain silent or request immunity or a non-prosecution agreement. While publicly, this may look bad, a person’s 5th amendment right to remain silent is a fundamental right from our Federal and State Constitutions. Like any other target of an investigation, I would give General Flynn the same advice if subpoenaed or asked to answer questions.
As discussed in the appearance, if a crime has been committed and there is other proof to prove the crime, it doesn’t matter if General Flynn speaks. Prosecutors may be able to use other evidence to the prosecutor a crime against General Flynn if that evidence exists.
Finally, I’d like to clarify a comment made by Mercedes about the adverse inference that relates to a witness’s invocation of their right to remain silent. The adverse inference that results is only in an administrative or civil context. For a criminal investigation or prosecution, an invocation to remain silent cannot be used against a person.