[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]




                               BEFORE THE

                              COMMITTEE ON
                          OVERSIGHT AND REFORM
                        HOUSE OF REPRESENTATIVES


                             FIRST SESSION


                             JUNE 26, 2019


                           Serial No. 116-39


      Printed for the use of the Committee on Oversight and Reform

                  Available on: http://www.govinfo.gov

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E-mail, [email protected]                         

                 ELIJAH E. CUMMINGS, Maryland, Chairman

Carolyn B. Maloney, New York         Jim Jordan, Ohio, Ranking Minority 
Eleanor Holmes Norton, District of       Member
    Columbia                         Justin Amash, Michigan
Wm. Lacy Clay, Missouri              Paul A. Gosar, Arizona
Stephen F. Lynch, Massachusetts      Virginia Foxx, North Carolina
Jim Cooper, Tennessee                Thomas Massie, Kentucky
Gerald E. Connolly, Virginia         Mark Meadows, North Carolina
Raja Krishnamoorthi, Illinois        Jody B. Hice, Georgia
Jamie Raskin, Maryland               Glenn Grothman, Wisconsin
Harley Rouda, California             James Comer, Kentucky
Katie Hill, California               Michael Cloud, Texas
Debbie Wasserman Schultz, Florida    Bob Gibbs, Ohio
John P. Sarbanes, Maryland           Ralph Norman, South Carolina
Peter Welch, Vermont                 Clay Higgins, Louisiana
Jackie Speier, California            Chip Roy, Texas
Robin L. Kelly, Illinois             Carol D. Miller, West Virginia
Mark DeSaulnier, California          Mark E. Green, Tennessee
Brenda L. Lawrence, Michigan         Kelly Armstrong, North Dakota
Stacey E. Plaskett, Virgin Islands   W. Gregory Steube, Florida
Ro Khanna, California
Jimmy Gomez, California
Alexandria Ocasio-Cortez, New York
Ayanna Pressley, Massachusetts
Rashida Tlaib, Michigan

                     David Rapallo, Staff Director
                      Krista Boyd, General Counsel
                          Amish Shah, Counsel
                         Brandon Rios, Counsel
          Elisa LaNier, Chief Clerk and Director of Operations

               Christopher Hixon, Minority Chief of Staff

                      Contact Number: 202-225-5051
                         C  O  N  T  E  N  T  S

Hearing held on June 26, 2019....................................     1


The Honorable Henry Kerner, Special Counsel, Office of Special 
    Oral Statement...............................................     5

The written openning statement and the witness' written statement 
  are available on the U.S. House of Representatives Repository 
  at: https://docs.house.gov.

                           INDEX OF DOCUMENTS


The documents entered into the record for this heearing are 
  listed below/available at: https://docs.house.gov.

  * OSC Website front page; submitted by Rep. Armstrong.

  * Hatch Act Fact Sheet article; submitted by Rep. Hill.

  * Letter from White House to OSC, dated June 11, 2019; 
  submitted by Rep. Meadows.

  * Relevant Code of Federal Regulations; submitted by Rep. 

  * Complaint by CREW to the OSC, dated May 8, 2019; submitted by 
  Rep. Jordan.

  * U.S.C. 1212; submittedby Rep. Hill.

  * Complaint by CREW to the OSC, dated October 23, 2018; 
  submitted by Rep. Jordan.

  * CREW Statement; submitted by Rep. Pressley.

  * QFR: Sent to Kerner (OSC) from Chairman Cummings and Rep. 

  * QFR: Response from Kerner (OSC).



                        Wednesday, June 26, 2019

                   House of Representatives
                          Committee on Oversight and Reform
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 10:04 a.m., in 
room 2154, Rayburn House Office Building, Hon. Elijah Cummings 
(chairman of the committee) presiding.
    Present: Representatives Cummings, Maloney, Norton, Lynch, 
Cooper, Connolly, Krishnamoorthi, Raskin, Rouda, Hill, 
Wasserman Schultz, Sarbanes, Welch, Speier, Kelly, DeSaulnier, 
Lawrence, Plaskett, Khanna, Ocasio-Cortez, Pressley, Tlaib, 
Jordan, Amash, Gosar, Foxx, Massie, Meadows, Hice, Grothman, 
Comer, Cloud, Gibbs, Higgins, Norman, Roy, Miller, Green, 
Armstrong, and Steube.
    Chairman Cummings. The committee of Oversight and 
Government Reform will come to order. Without objection the 
chairman can declare a recess of the committee at any time. The 
full committee hearing is convening regarding violations of the 
Hatch Act under the Trump administration. I now recognize 
myself for five minutes to give my opening statement.
    Today, we are holding a hearing on a very troubling report 
issued by the Office of Special Counsel on June 13 of this 
year. This report finds that Kellyanne Conway, counselor to 
President Donald Trump, violated the Hatch Act dozens of times, 
and it recommends that the President fire her immediately for 
her repeated violations.
    There are rarely issues that come before our committee that 
are so clearcut, but this is one of them. This is about right 
and wrong. This is about the core principle of our precious 
democracy that nobody, not one person, nobody, in this country 
is above the law. Contrary to claims from Ms. Conway and 
President Trump, this is not a conspiracy to silence her or 
restrict her First Amendment rights. This is an effort to 
enforce Federal law, which, very clearly, there is no ambiguity 
here, which very clearly prohibits employees from engaging in 
political activities on Federal property or while using their 
official position. This report was issued by Special Counsel 
Henry Kerner.
    Mr. Kerner leads the Office of Special Counsel, the 
independent agency charged with enforcing the Hatch Act. Listen 
to this - Mr. Kerner was nominated to his position by President 
Trump in 2017 and all of the Republicans and Democrats in the 
Senate approved his nomination by a voice vote. Mr. Kerner 
worked on the Republican staff of this very committee for 
several years under both Chairmen Darrell Issa and Jason 
    In this report, the Special Counsel describes, and I quote: 
``Persistent, notorious, and deliberate Hatch Act violations.'' 
end of quote. This report explains how Ms. Conway violated the 
law dozens of times by using her official position to criticize 
Democratic candidates and support Republican candidates. I 
should not have to say this, but obviously that is against the 
law. It is against Federal law. Unfortunately, this was not the 
first time the Special Counsel informed the President that Ms. 
Conway had violated the law.
    In 2018, the Special Counsel sent President Trump a report 
finding that Ms. Conway violated the Hatch Act twice. Yet, the 
President took no disciplinary action against her. Instead, 
with the President's full support, Ms. Conway has engaged in an 
astounding show of defiance by increasing the frequency of her 
illegal activity and disparaging the law itself.
    On May 29, 2019, she answered a question from a reporter 
about her violations, saying, and I quote: ``Blah, blah, 
blah.'' end of quote. She then stated dismissively, and I 
quote: ``Let me know when the jail sentence starts.'' end of 
quote. Ms. Conway is apparently comfortable escalating her 
violations and her defiance because she knows President Trump 
will not take any disciplinary action against her.
    The President stated during an interview with Fox News, and 
I quote: ``No, I'm not going to fire her. I think she's a 
terrific person. She's a tremendous spokeswoman. She's been 
loyal.'' end of quote. This is not a question of whether 
somebody is a terrific person. It's not a question of whether 
they are a tremendous spokesperson. It is not a question as to 
whether they are loyal. It is a question of whether they obeyed 
the law, period.
    Now things are getting worse. In response to the special 
counsel's report, the White House and Ms. Conway have gone on 
the offensive by arguing that the Hatch Act does not even apply 
to her. Tell that to all the other Federal employees that have 
to adhere to this law. In a letter to the Special Counsel on 
June 11, the White House counsel claimed there were no 
violations, quote, ``even assuming that the Hatch Act applies 
to the most senior advisor to the President in the White 
House,'' end of quote.
    Similarly, Ms. Conway stated this week, quote: ``It is not 
even clear to us at the White House, according to the White 
House counsel, that the Hatch Act applies to assistants of the 
President.'' end of quote. Let me make this abundantly clear. 
The Hatch Act absolutely applies to Ms. Conway, period. It is 
written in black and white. We are the committee on 
jurisdiction over this law, and neither Congress nor the courts 
have ever suggested that a President's advisors are exempt.
    Finally, I want to address the White House's baseless, and 
they truly are baseless, arguments for refusing our request for 
Ms. Conway's testimony here today. They sent a letter to the 
committee on Monday arguing that Ms. Conway is, quote: 
``Absolutely immune.'' end of quote. From testifying. They 
claimed that this principle has been, quote, ``consistently 
adhered to by administrations of both political parties.'' end 
of quote.
    Ladies and gentlemen, this is simply not true. Congress has 
never accepted the claim that White House advisers are 
absolutely immune. In fact, our committee has obtained public 
testimony from numerous White House officials while they served 
in the White House. These include multiple White House 
counsels, the deputy counsel to the President, an associate 
counsel to the President, a deputy assistant to the President, 
and the director of the White House Office of Security.
    In the case of Ms. Conway, the White House's arguments have 
even less merit. We're not asking about any conversations she 
had with the President, and we're not asking about any advice 
she gave to the President. Here we have a clearcut case of a 
Federal employee violating Federal law over and over and over 
again. We have video of that same Federal employee mocking the 
law itself and claiming it does not apply to her.
    And we have the White House asserting that Congress may not 
question this employee. May not investigate her repeated 
violations. And may not conduct oversight relating to 
legislation that we, on this committee, passed. This is the 
opposite of accountability. It is contrary to our fundamental 
system of laws in this country. Again, nobody is above the law, 
not even Ms. Conway.
    For these reasons, we will hear from our ranking member. We 
will hear Special Counsel Kerner's opening statement. And then 
we will pause this hearing so the committee members can vote on 
a subpoena to compel Ms. Conway's appearance at a hearing later 
    With that, I will yield to the distinguished ranking 
    Mr. Jordan. Mr. Chairman, the report from the Office of the 
Special Counsel is outrageous, it's unprecedented, it's unfair, 
and it's just flat out wrong. We should be honest. The reason 
we're here today is Mr. Kerner got his feelings hurt. He told 
that to the White House counsel's office. He said he took great 
offense to Ms. Conway's response, and that's why--that's why he 
rushed the report and only gave Ms. Conway 16 hours to respond. 
Mr. Kerner felt slighted. Ms. Conway didn't pay enough 
attention to him and his office. And you know why she didn't? 
Because the allegation is ridiculous.
    Let's be clear about the Hatch Act. A Federal employee 
can't come to work and hand out partisan literature, can't come 
to work and hand out yard signs. A Federal employee can't come 
to work and raise funds for a candidate or pressure 
subordinates to support a particular political party, but a 
senior advisor to the President of the United States can sure 
as heck go on cable news shows and answer questions.
    David Plouffe did it, David Axelrod did it, John Podesta 
they all did it for President Obama. But now that it's a 
strong-willed Republican helping President Trump, oh, can't 
have that. Can't have the--all of a sudden, nope, got to stop 
    Mr. Kerner and the Office of Special Counsel felt slighted. 
They also felt pressured. Again, he said it. He told the White 
House counsel he felt pressured by the left-wing political 
organization that filed the complaint, same left-wing political 
organization that raises tons of money by attacking President 
Trump and his administration. They felt slighted. They felt 
pressured, so they were unfair.
    In the Obama Administration, Hilda Salize, Mr. Castro, and 
Josh Earnest were all found to have violated the Hatch Act. OSC 
didn't recommend they be fired. For some of those people, 
didn't even issue a public report. Americans hate unfairness, 
and they know it when they see it. They also hate double 
    By the way, you know what else a Federal employee can't do? 
You know what else they can't do? They can't target people for 
their political beliefs. Remember this just a few years ago 
when the IRS systematically targeted people because they had 
different political persuasion. Federal employees can't do what 
Lois Lerner in the IRS did when they targeted Tea Party groups.
    When they applied one standard to their ideological 
friends, but a different standard if you were conservative. And 
here is the irony. Office of Special Counsel seems to be doing 
the same thing to Ms. Conway. A Democrat political group who 
filed the complaint and the OSC, they don't like what Ms. 
Conway is doing. They don't like the fact that she's 
conservative. But you know what, it's not really that. It's not 
even really that.
    The IRS didn't really target Tea Party groups because they 
were conservative. Do you know why they targeted them? Because 
they were effective. And that's the same thing we see in play 
here. Ms. Conway is being targeted not just because she's a 
conservative, not just because she's in the Trump 
administration, but she's being targeted because she's good at 
what she does. And that's why this should not stand.
    And the idea that the Democrats are going to now subpoena 
her is just ridiculous. They are going to do it because she 
does her job so well, that's why we're here. And I hope in the 
next few hours that we can get the truth out about the Hatch 
Act and really expose the motives that drive this whole darn 
thing in the first place.
    And with that, Mr. Chairman, I yield back.
    Chairman Cummings. I now would like to welcome our witness, 
the Honorable Henry J. Kerner, Special Counsel, Office of 
Special Counsel. If you would please rise and raise your right 
hand, I will begin by swearing you in.
    Do you swear or affirm that the testimony you're about to 
give is the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. Kerner. I do.
    Chairman Cummings. You may be seated. Let the record show 
that the witness answered in the affirmative, and I want to 
thank you for being here.
    Mr. Kerner, I remind, you since you're familiar with the 
hearing room and being in these settings, the microphones are 
very sensitive, so please speak directly into them.
    Without objection, your written statement will be made a 
part of the record.
    There has been a lot said by the ranking member, and I 
would hope that you would address some of those issues in your 
opening statement. If not, we'll get to them in questions.
    With that, you're now recognized for five minutes.

                   OFFICE OF SPECIAL COUNSEL

    Mr. Kerner. Thank you Mr. Chairman. I have a prepared 
statement, but since the ranking member mentioned the IRS 
targeting scandal, I thought I'd point out that when I was 
working on the Senate side we authored a 37-page report 
criticizing the IRS for targeting conservative groups and Tea 
Party groups. I was the author of that report. And we were very 
strong in making clear that that was unacceptable and that the 
IRS should not have targeted the conservative groups.
    Mr. Jordan. No kidding.
    Chairman Cummings. Do not interfere with the witness. Let 
him testify.
    Mr. Jordan. He was speaking directly to me.
    Chairman Cummings. No, no, no, no. He's talking.
    Mr. Jordan. Got it.
    Mr. Kerner. Sorry, I just wanted to make that clear. 
Otherwise, good morning to Chairman Cummings, also Ranking 
Member Jordan, and the members of the committee. Thank you for 
the opportunity to appear before this committee to discuss the 
important work of OSC's Hatch Act Unit. I'm proud to be here 
representing OSC, and I'm especially pleased to be back before 
this committee where I started my Federal career.
    I came to work at what was then OGR because I wanted to 
make a difference, and I'm very proud of the work that we did 
to hold government officials accountable, all the way up to the 
attorney general. While a Republican staffer here on two 
separate occasions under Chairman Issa and Chaffetz, I learned 
two valuable lessons.
    One, the importance of accountability, especially of high 
government officials. And, two, treating everybody the same. 
Holding the little guy to the exact same standard as those who 
are part of the politically well-connected class. We cannot 
have two sets of rules, instead we need to have equal treatment 
under the law, and I've internalized those two lessons and I've 
taken them with me to my new job at the Office of Special 
Counsel. Speaking of the Office of Special Counsel, I'm proud 
of the longstanding work of OSC to hold government officials at 
all levels accountability for violation of the Hatch Act.
    When President Trump appointed me to the position of 
Special Counsel, and I'm honored by that appointment, I 
accepted this job with the expectation and obligation that I 
would uphold the Constitution and faithfully discharge my 
duties in a fair and impartial manner. I knew from my 18 years 
as a prosecutor in Los Angeles, that doing so would involve 
making hard calls. That leads me to our topic for the day. 
OSC's investigation in Kellyanne Conway's violations of the 
Hatch Act.
    I want to make it very clear at the outset that with 
respect to Ms. Conway's First Amendment rights, we in no way 
wish to assist anyone in silencing her speech. The President 
has stated publicly that he considers her an effective 
proponent of his policies, and we have no intent in depriving 
the President of that assistance.
    That said, over the past 1 1/2 years, OSC has received 
numerous separate Hatch Act complaints against Ms. Conway. As 
with all Hatch Act complaints that OSC receives, career Hatch 
Act Unit attorneys conduct thorough and impartial 
investigations of her alleged political activity.
    On March 6, 2018, OSC issued a report to the President 
documenting multiple Hatch Act violations by Ms. Conway. 
Although Ms. Conway had the opportunity to respond to our 
report, she chose not to do so.
    The most recent report was the result of a month's long 
investigation that began with complaints by her Twitter 
activity back in December of last year and came to include a 
multitude of violations during media appearances by which OSC 
has received complaints.
    Let me also be clear, the statements made by Ms. Conway 
that violated the Hatch Act were her political opinions. Ms. 
Conway was not talking only about fact during her media 
appearances in question, instead she pivoted, sometimes 
completely unprompted, to attacking the Democratic candidates 
personally, such as calling the entire field of Democratic 
candidates wood chips, and calling Senator Booker tinny and 
sexist. Those statements are not facts, they are campaign 
rhetoric, and they are forbidden by the Hatch Act when she says 
them in her official capacity.
    During the recent investigation of Ms. Conway, OSC had 
substantial communication with the White House counsel's 
office. OSC repeatedly offered Ms. Conway the opportunity to 
come into compliance with the law. She refused to do so. In 
fact, the frequency of her Hatch Act violations only increased. 
This left us with no choice but to make the recommendation we 
made, which is that given the evidence of her clear, repeated, 
and knowing violations of the Hatch Act, and her apparent 
unwillingness to come into compliance with the law, the only 
appropriate recommendation to the President under these 
circumstances was removal from office.
    I want to emphasize one more time that we did not make this 
recommendation lightly. But as Professor Jonathan Turley, a 
frequent witness on Capitol Hill and a nationally recognized 
constitutional law scholar, wrote on his blog: Ms. Conway's 
behavior presented a, quote, ``direct and existential challenge 
to the Office of Special Counsel. They have to act in the face 
of such flagrant and repeated violations.'' end quote.
    So why do we even have a Hatch Act? We have a Hatch Act, 
which was passed in 1939 because at its central purpose remains 
unchanged, to separate the nonpartisan governance of the 
country from partisan political campaigning.
    By maintaining the separation, the Hatch Act protects two 
groups, Federal workers who are protected from the possibility 
they could be ordered or pressured into taking part in partisan 
campaigns, and the American people. They are also protected 
because they know that their tax dollars are being spent on 
government, and not on election campaigns they may or may not 
    To achieve these worthy goals, the Hatch Act places certain 
limitations on the political activity of Federal executive 
branch employees. Political activity as defined in the Hatch 
Act regulations is any activity directed toward the success or 
failure of a political party, partisan political group, or 
candidate for partisan political office.
    One of the Act's core restrictions prevents government 
employees from using their official authority or influence to 
interfere with or affect the results of an election. The 
Supreme Court has twice affirmed the Hatch Act's 
constitutionality as a permissible regulation of speech. In the 
later of the two rulings, the Supreme Court said the Hatch Act 
had struck a delicate balance between fair and effective 
government, and the First Amendment rights of individual 
    As a former congressional staffer, I'm well-aware of the 
restrictions placed a congressional staff and even members in 
regard to mixing political activity with one's official duties. 
And just like the Hatch Act, those restrictions play a crucial 
role in reassuring the American people that their government is 
working on behalf, regardless of how they voted or which party 
or candidate they support.
    Now some have questions why the Hatch Act should apply to 
someone like Ms. Conway, who was a former campaign manager for 
President Trump and presently serves as one of his senior 
counselors. But as the conduct of past administration officials 
in similar positions, people like David Axelrod, Karl Rove, has 
shown being an advisor does not inherently require Ms. Conway 
to leverage her official authority to attack candidates of the 
opposing party, or otherwise engage in political activity as 
defined under the Act.
    Another example is the now departed press secretary, Sarah 
Huckabee Sanders, who desperately pivoted way from questions 
that were posed to her by the press core about election issues. 
Ms. Conway's comments, by contrast, were indistinguishable from 
the partisan attacks that a campaign official would make. Ms. 
Conway's repeated personal attacks on multiple Democratic party 
candidates, which Ms. Conway, by the way, is permitted to make 
as a private citizen are wholly unrelated to the work of 
governing on behalf of the American people.
    Some have tried to argue that OSC's holding Ms. Conway to a 
higher standard, and treating her more harshly than high level 
officials of the Obama Administration. The opposite is true. 
The career supervisor of OSC's Hatch Act Unit is not only aware 
of but investigated violations by Obama Administration 
officials, and their recommendations are carefully calibrated 
on the severity of the violations based on precedence.
    For example, then HHS Secretary Kathleen Sebelius was found 
to have committed two Hatch Act violations at a single event. 
And, in response, acknowledged error and reimbursed the U.S. 
Treasury for all expenses associated with that event. 
Interesting at the time that OSC issued its report on Ms. 
Sebelius, some Republicans and outside conservative groups 
called for her removal.
    In contrast to Ms. Sebelius, Ms. Conway has been found to 
have committed at least 10 separate Hatch Act violations, has 
expressed no remorse, and continues to express disdain for the 
law's longstanding restrictions.
    As stated in the report, Ms. Conway's conduct created an 
unprecedented challenge to OSC's ability to enforce the Hatch 
Act. Our conduct sends a false message to other Federal 
employees that they need not abide by the Hatch Act or that 
senior officials are above the law. I am here to emphatically 
say that that is not the case.
    In closing, just as I did when I worked for this esteemed 
committee, I will continue to work hard to hold Federal 
employees accountable when they fall short of the standards 
that Congress has mandated.
    Accordingly, under my leadership, OSC will continue its 
distinguished history of enforcing the Hatch Act, and 
preserving the distinction between governing and campaigning.
    Thank you. And I look forward to answering your questions.
    Chairman Cummings. Thank you very much, Mr. Kerner. We look 
forward to engaging you in questions when we reconvene after we 
dispose of some committee business. The hearing will now stand 
in recess.
    [Whereupon, at 10:38 a.m., the committee recessed for a 
business meeting.]
    Chairman Cummings. The hearing will now reconvene. We'll 
get Mr. Kerner up here. Where is he? I want to thank all the 
members for are being here as soon as Mr. Kerner gets to the 
table, we will start the questioning.
    The committee will come to order. Mr. Kerner, I want to 
thank you and the hardworking career experts at the Office of 
Special Counsel who spend many months doing a thorough and 
careful investigation. I understand your recommendation to 
President Trump that Kellyanne Conway be removed from office 
was not made without careful consideration.
    I want to play a clip from a phone interview President 
Trump did last Friday on Fox & Friends responding to OSC's 
report. Play the clip please.
    [Video shown.]
    Chairman Cummings. What message does the President's 
refusal to fire Ms. Conway send to the over 2 million people in 
our Federal work force?
    Mr. Kerner. Thank you, Mr. Chairman. From our perspective, 
we follow the statute. We try to apply the laws--the facts to 
the law. And under the law we issue the report with a 
recommendation to the President, it is the prerogative of the 
President then to decide what discipline, if any, to impose. 
That's his choice. We respect his choice. And the President, 
obviously, decided to do what he does, and that's consistent 
with the statute.
    Chairman Cummings. Now, the Hatch Act was intended to 
provide the American people with confidence that the government 
is using tax dollars for the public good and not to influence 
or fund a political campaign. Is that a fair statement?
    Mr. Kerner. Yes.
    Chairman Cummings. If a career civil servant violates the 
Hatch Act, the Office of Special Counsel can bring an action to 
discipline the employee before the Merit Systems Protection 
Board, OSC does not have the authority, however, to discipline 
political appointees. Is that correct?
    Mr. Kerner. Yes, that's correct.
    Chairman Cummings. For political appointee, however, OSC 
can write a report and make a recommendation of discipline, but 
ultimately it's up to the President?
    Mr. Kerner. Correct.
    Chairman Cummings. On March 6, 2018, you sent President 
Trump a report that found that Ms. Conway violated the Hatch 
Act on two occasions and that she knew she was breaking the 
law. Did the President ever send you a response to your report?
    Mr. Kerner. No, I don't believe so.
    Chairman Cummings. Are you aware whether President Trump 
took any action to discipline Ms. Conway after your first 
    Mr. Kerner. Ms. Conway mentioned on a couple of appearances 
that she may have been counseled, but we are not aware of any 
particular discipline, no.
    Chairman Cummings. Now, White House spokesperson Hogan 
Gidley released a statement to the press in response to your 
first report, and he said this. Kellyanne Conway, and I quote, 
``did not advocate for or against the election of any 
particular candidate. She simply expressed the President's 
obvious position that he had people in the House and Senate who 
support his agenda.'' end of quote.
    Was that kind of response--was that the kind of response 
you would expect to see in the White House if the White House 
was taking your report seriously?
    Mr. Kerner. Well, we've had conversations with the White 
House, and we obviously try to work with the White House in 
order to make sure that the Hatch Act is complied with. And so 
our hope is that we will continue to be able to get the White 
House to agree to comply with the Hatch Act as prohibitions.
    Chairman Cummings. On June 13, 2019, OSC released another 
report that found that Ms. Conway broke the law dozens of 
times. You recommended to the President that he fire her, and 
I'm sure that was not a decision you took lightly. Why did you 
recommend that the President fire Ms. Conway, because that's a 
pretty stiff penalty. Would you agree?
    Mr. Kerner. Yes. Yes, sir. That is the harshest penalty, 
obviously, in a civil case like this. We did not take that 
lightly. It was based on the recommendation of the career folks 
who prepared the report. It's consistent with MSPB, Merit 
Systems Protection Board precedent, and it's based on the fact 
that we have never had a repeat offender. We've never had 
anyone that we had to write two reports to a President to. 
We've never had a situation where there were so many 
violations. And then ultimately she made a comment that seemed 
to suggest that she didn't feel she was bound by the Hatch Act. 
So there's no way to stay in Federal employment while she 
doesn't feel she's obligated to abide by this law.
    Chairman Cummings. I wonder if you've got, again, these 2 
million Federal employees, and I'm sure these cases do come up, 
and where they may have one violation. I mean, you know, we 
talk about fairness, I mean, if a person had one or two 
violations, here we have somebody who has 25 alleged 
violations, and basically nothing happens. What does that say 
to them? I mean, is that fair?
    Mr. Kerner. Well, Mr. Chairman, I think from OSC's 
perspective, we try to apply the law as fairly as we can. To 
emphasize what I said in my opener, we're going to treat the 
well-connected the same as the little guy we are going to have 
one standard. We're not going to have a two-tier Hatch Act 
enforcement system. Obviously, cases with ordinary Federal 
workers go to the board, the board sometimes also imposes 
punishment that may differ from what we recommend.
    So sometimes that's simply--imposing discipline is not 
something OSC does, but we are going to bring cases fairly and 
equally, and that's what we've done here.
    Chairman Cummings. If she was just a regular civil servant, 
do you think she would have been disciplined?
    Mr. Kerner. The professionals who work for me who have been 
doing this for just about 40 years have said that if this were 
a MSPB case, removal would be the very likely outcome.
    Chairman Cummings. All right. Very well. Mr. Amash.
    Chairman Cummings. Mr. Amash.
    Mr. Amash. Thank you, Mr. Chairman. I yield to the 
gentleman from North Dakota, Mr. Armstrong.
    Mr. Armstrong. Thank you.
    Mr. Chairman, I think it is important to note at the outset 
that, while the Hatch Act does not apply to--it does not 
Members of Congress. And it is always interesting to hear from 
my friends on the other side about the blending of political 
and official when every day we see examples of elected 
officials using their current positions to propel their 
Presidential campaign messages.
    Having looked through the materials in preparation for this 
hearing, I can't help but feel that the Office of Special 
Counsel's interpretation of the Hatch Act means that President 
Trump's top advisers must subscribe to the legal and political 
fiction that you can decouple an opponent's Presidential 
campaign from their current elected position.
    And my concern with the OSC's interpretation of the Hatch 
Act at least appears to be bipartisan. Chairman Cummings even 
sent a letter to OSC on December 7 of last year, and here's a 
direct statement: OSC's guidance is wrong. There is no limit 
that criticizing a policy of a sitting President or any other 
politician is a violation of the Hatch Act.
    Apparently that applies unless you're an adviser to this 
    But all that aside, President Trump's advisers are going to 
continue to act as his surrogates. So going forward, maybe we 
can help--maybe this hearing can help us understand what a 
senior counselor to the President is allowed to say on TV or 
social media without personally offending Mr. Kerner or anybody 
else in the OSC's office.
    So if we're talking about a sitting Senator and we're 
talking about Medicare for All, I mean, is it okay to say I 
hope Bernie Sanders Medicare for All proposal is purely 
campaign rhetoric, because if he were to introduce a Senate 
bill which actually provided a $32 trillion pay-for, people 
would have to give up the coverage they trust, and taxpayers 
would be on hook for trillions of dollars? Is that an okay 
    Mr. Kerner. I'm not in a position to judge a statement like 
that. The way OSC works is we get complaints about statements. 
There is an investigation opened and started, and we don't just 
    Mr. Armstrong. So what about--what if Senator Warren in her 
role as Senator, and I'm sure that her Presidential candidacy 
is purely coincidental, plans to cancel student loan debt for 
95 percent of borrowers? Bribing people to vote for you for 
President is a bad way to legislate as a Senator.
    What if an adviser was to ask about the status of the NDAA 
with several of the Senate Democrats campaigning for President 
instead of being present to support our military. Could an 
adviser say, ``Senator Gillibrand, Harris, Warren, Sanders, 
Bennet, and Klobuchar should get off the Presidential campaign 
trail and back into the Senate to complete the NDAA''? Instead, 
the Senate minority leader is asking for a full stop in the 
Senate until the Democratic primary is complete.
    What if an adviser makes an obvious connection between a 
policy proposal and a possible political motivation? Is the 
adviser allowed to highlight the intention of the lawmaker?
    Senator Harris has introduced a new tax credit for renters. 
I'm sure introducing legislation that gives more free stuff to 
more people has nothing to do with her Presidential campaign.
    What about if an adviser weighs in on a current U.S. 
Senator's campaign position on abortion? Can an adviser say, 
``Senator Gillibrand compared pro-life views with racism, this 
represents a morally vacant position not fitting of a United 
States Senator''?
    Even further, what if a Senator claims to support something 
while running for office but refuses to actually introduce a 
bill? Can the President's adviser comment on how the sitting 
Senator is acting in a political and not governmental capacity?
    Or what about this? Senator Gillibrand, in her role as 
Senator and not as a candidate for President, has introduced 
legislation to eliminate pesticides from school lunch programs, 
demonstrating her misunderstanding of science and production 
agriculture. I'm sure just a coincidence that it happened right 
around the same time it was mentioned in a campaign speech.
    But if she wants to check with the former First Lady, I'm 
sure she will find out that rural America doesn't really like 
the Senate or the White House interfering with school lunch 
    Can the President's advisers ask if Senator Elizabeth 
Warren introduced a bill that would make same-sex couples 
eligible for a retroactive tax refund, however, she has not 
supported a retroactive credit for other filers who would have 
a lower rate due to the recent tax cuts? This demonstrates that 
she is acting in the best interest of her political base and 
not in the best interest of the average citizen.
    In closing, Mr. Chairman, I request unanimous consent to 
enter into the record the front page of the OSC website which, 
as of this morning, features a prominent link stating: OSC 
finds Kellyanne Conway repeatedly violated the Hatch Act, 
recommends removal from Federal office. The argument that this 
OSC is apolitical holds no water. OSC has routinely targeted 
this administration and not given evenhanded consideration.
    Chairman Cummings. Without objection, so ordered.
    Mr. Armstrong. And with that, I yield back.
    Chairman Cummings. Very well.
    Mr. Connolly.
    Mr. Connolly. Thank you, Mr. Chairman.
    And welcome Mr. Kerner.
    I feel a little bit like the image of Diogenes with his 
lantern trying to find one honest man in town when it comes to 
my Republican friends in holding the Trump administration 
accountable. I mean, my Lord, what happened to the passion of 
the Obama years? It's actually a marvel to behold. But maybe 
Diogenes found an honest man in you, Mr. Kerner.
    Now, remind me of your political affinity. Are you a 
liberal Democrat from, I don't know, New York?
    Mr. Kerner. No. No, sir.
    Mr. Connolly. What are you?
    Mr. Kerner. Well----
    Mr. Connolly. Do you mind my asking?
    Mr. Kerner. Sure. I consider myself a conservative 
Republican. I voted for Ronald Reagan, my first vote for 
    Mr. Connolly. Oh, my Lord.
    Mr. Kerner. When it was cool to vote for Ronald Reagan. I 
came to D.C. in 2011 when Chairman Issa took over, because I 
believe in good government.
    Mr. Connolly. You worked for Darrell Issa?
    Mr. Kerner. I did work for Darrell Issa, yes.
    Mr. Connolly. Oh, do the horrors ever stop here?
    So you're not bringing to your job some kind of political 
bias against this President. Is that correct?
    Mr. Kerner. None whatsoever.
    Mr. Connolly. And you're an Obama appointee, though, or 
you're a holdover, right?
    Mr. Kerner. No. I'm a Trump appointee.
    Mr. Connolly. President Trump appointed you?
    Mr. Kerner. Yes, he did.
    Mr. Connolly. Oh, my Lord. Well, gosh.
    So presumably, being who you are, you would be inclined not 
to violate the law, not to ignore your duties. But you'd 
probably, if you could, you'd bend over backward to counsel 
someone who was in trouble with the law that you're charged 
with enforcing to kind of right himself/herself, give them a 
little bit of a warning, a chance, so that it doesn't have to 
get to a level that it now is. Would that be a fair statement?
    Mr. Kerner. Well, I wouldn't say bend over backward. I do 
believe that it is my job, but in a nonpartisan way, to assist 
the administration in complying with all the laws. OSC 
generally enforces whistleblower laws and whistleblower 
    Mr. Connolly. Right.
    Mr. Kerner. So one of the things I'm really concerned about 
is to make sure that whistleblowers are protected.
    We do have a very robust effort to train people on the 
Hatch Act. But it is not of a partisan reason. We have career 
professionals who do this who are not partisans whatsoever.
    Mr. Connolly. Right. So did you verbally counsel Ms. 
Conway, ``Hey, you're crossing a line, don't do that''?
    Mr. Kerner. I have never spoken to Ms. Conway. But the 
White House Counsel's Office gave her numerous trainings, in 
fact, some that our career staff sent over there, PowerPoints 
and other training materials on the Hatch Act, and specifically 
on using her official authority to influence an election, 
specifically on this violation.
    Mr. Connolly. Now, your office has issued a report on this. 
Is that correct?
    Mr. Kerner. We've issued two reports on this.
    Mr. Connolly. Have you ever done that before with a White 
House official?
    Mr. Kerner. No, we have never issued two reports on the 
same person.
    Mr. Connolly. Never?
    Mr. Kerner. Never.
    Mr. Connolly. How old is your office?
    Mr. Kerner. So 1989 is when we became independent.
    Mr. Connolly. Since 1989, 30 years.
    Mr. Kerner. Thirty years.
    Mr. Connolly. Okay. And have you received a response to 
those reports from the subject in question, Ms. Conway?
    Mr. Kerner. Ms. Conway never responded, no.
    Mr. Connolly. Never responded?
    Mr. Kerner. No.
    Mr. Connolly. In the past, you know, the ranking member was 
comparing this case to Axelrod and Plouffe and Castro and 
Sebelius. Did those people respond to chastisements by our 
office verbal or--well, there hasn't been a written report like 
    Mr. Kerner. Right. I don't know if there is one. I wasn't 
there. And obviously that would go to the professional.
    Mr. Connolly. Well, we have your testimony earlier that, in 
fact, one of those people not only responded, she issued a mea 
culpa and reimbursed the government for expenses associated 
with the unfavorable act.
    Mr. Kerner. That's correct. Secretary Sebelius reimbursed 
the Treasury.
    Mr. Connolly. In sharp contrast to the case in point.
    Mr. Kerner. Correct.
    Mr. Connolly. Could this problem be solved if Ms. Conway 
simply moved to the campaign?
    Mr. Kerner. Absolutely.
    Mr. Connolly. And was she counseled, do you know, or 
advised to do that?
    Mr. Kerner. We have definitely suggested solutions, not 
just for moving to the campaign, but also how to come into 
compliance with her Twitter feed and how to stay within the 
rules on her media appearances.
    Mr. Connolly. And this is a matter of law.
    Mr. Kerner. Correct.
    Mr. Connolly. And she's in violation of the law.
    Mr. Kerner. That's correct.
    Mr. Connolly. And you have definitively determined that.
    Mr. Kerner. That's correct.
    Mr. Connolly. And has the White House counsel been so 
    Mr. Kerner. Yes.
    Mr. Connolly. And what is the reaction of the White House 
    Mr. Kerner. Well, they sent us an 11-page letter that 
disputed our findings.
    Mr. Connolly. I see.
    Well, a final thing, if I may. Are you concerned about the 
impact of this defiance of the law on the two-plus million 
Federal employees who fall within the penumbra of the Hatch 
    Mr. Kerner. I think it's very important to let the Federal 
work force know that OSC is going to treat everybody equally, 
that we're not going to have a two-tier Hatch Act enforcement 
system and that we're going to do everything in our power to 
treat everybody the same no matter how well connected they may 
or may not be.
    Mr. Connolly. Thank you very much for your honesty, Mr. 
    And I yield back.
    Mr. Kerner. Thank you, sir.
    Chairman Cummings. Mr. Roy.
    Mr. Roy. I thank the chairman.
    I thank the witness for being here today appearing before 
the committee.
    I would suggest to my colleague on the other side of the 
aisle, he must not be saying when he's saying that he's seeking 
one honest that everyone on this side of the aisle is somehow 
dishonest. I know that can't be the case, particularly when 
some of us have broken ranks, for example, offering and asking 
for a subpoena with respect to child separation policies.
    But to suggest that we're somehow dishonest by saying 
you're seeking to find one honest man because we believe that 
this is a charade and a waste of the time of the American 
people, I think that that is a questionable direction to go.
    And with respect to the Obama years, I would just raise 
that it would be awfully nice if my colleagues on the other 
side would recognize the President sent up a request for $762.8 
million for ICE when the problem that we had on our border was 
nothing like it is today. And yet my colleagues on the other 
side of the aisle refuse to recognize that.
    Mr. Kerner, on your office's official website it says that 
Congress enacted the Hatch Act to ensure that Federal programs 
are administered in a nonpartisan fashion, to protect Federal 
employees from political coercion in the workplace, and to 
ensure that Federal employees are advanced based not on merit--
based on merit and not based on political affiliation. Is that 
    Mr. Kerner. That's correct.
    Mr. Roy. Would you agree that arguably President Trump 
chose Ms. Conway to be one of his top advisers based on her 
partisan political affiliation?
    Mr. Kerner. That he chose her because of that?
    Mr. Roy. Right. Because she's a bipartisan, because she 
worked for him.
    Mr. Kerner. I think he's made it clear he chose her because 
he feels she's an effective advocate for his policies.
    Mr. Roy. Then it should not come as a surprise that Ms. 
Conway has advocated for her boss' policies and against the 
policies of Democrats, whether they're candidates or in office, 
    Mr. Kerner. Yes.
    Mr. Roy. So you would agree that the original intent of the 
Hatch Act was not to keep White House advisers from advocating 
for their boss' policies or in defense of the President's 
positions as compared to others criticizing them?
    Mr. Kerner. I would not agree with that. I think the Hatch 
Act only exempts two people, the President and the Vice 
President, from its reach, and so Ms. Conway is bound by it.
    Mr. Roy. But you're saying that it would prevent the White 
House advisers from advocating on behalf of their boss' 
    Mr. Kerner. No. She's entitled to advocate on behalf of his 
policies. She's not allowed to use her official authority to 
inject herself in campaign activity.
    Mr. Roy. Well, but in defense of the President's positions 
as compared to others criticizing them, can she defend the 
President's positions?
    Mr. Kerner. Yes.
    Mr. Roy. Okay. And with respect to the idea of a double 
standard, is it not true that there are two categories of 
employees, restricted and less restricted?
    Mr. Kerner. That's correct.
    Mr. Roy. Okay. So there is, in fact, two categories. So we 
do treat people differently depending on what their job is and 
what they're doing.
    Mr. Kerner. But the enforcement is not different. So we 
don't treat people----
    Mr. Roy. Yes. But we recognize there are differences. True 
or false? There are differences.
    Mr. Kerner. The statute does recognize that. That's 
    Mr. Roy. Correct. Thank you.
    There's a significant gap, in my opinion, between OSC's own 
directives regarding political activity and how it's handling 
the conduct during office investigation into Ms. Conway.
    If OSC claims that certain forms of political speech are 
permissible under the Hatch Act, where do we draw the line?
    Let's look a hypothetical. Can Ms. Conway explain why open 
borders policy is a bad policy?
    Mr. Kerner. As I indicated earlier to the gentleman from 
North Dakota, I can't get into a specific statement.
    Mr. Roy. You can't say that whether or not she can advocate 
whether a specific policy choice is bad policy?
    Mr. Kerner. I can say that she's allowed to advocate policy 
    Mr. Roy. Okay. Thank you.
    Can she explain why a policy of not encouraging people to 
claim asylum when it overwhelmingly is not found to be a 
credible claim under our laws by 88 percent is bad policy?
    Mr. Kerner. She can certainly talk about policies. That's 
    Mr. Roy. Can she explain why Democrat legislation that 
fails to take meaningful steps to solve the border crisis 
offered up while criticizing the people charged with guarding 
our border in a cynical political game, exploiting the tragedy 
of migrants dying, while those very same Democrats who denied 
the crisis refuse to address it and then act like they are the 
heroes for throwing money at it with no plan at all to deal 
with it, can she explain why that is flawed legislation?
    Mr. Kerner. I just can't really comment on the specific 
    Mr. Roy. But she could speak to the policy?
    Mr. Kerner. She can absolutely speak to the policy.
    Mr. Roy. Can she explain why that legislation should be 
roundly rejected and defeated? Can she call for its defeat, the 
    Mr. Kerner. I believe she can comment on legislation.
    Mr. Roy. Can she criticize the Democrats, the Democrats as 
a group, who failed to take the crisis seriously and allowed 
the crisis to get so bad that people are now dying?
    Mr. Kerner. I think it gets very close to who the Democrats 
are. And, once again----
    Mr. Roy. Wait a minute. She can't criticize Democrats as a 
class for failing to do this?
    Mr. Kerner. She can talk about policy proposals. When she 
starts to criticize people, including some who are running for 
    Mr. Roy. So if you're a Member of Congress, and we're 
perpetually running for office every two years, we can't 
criticize a Member--a member of the White House staff can't 
criticize a Member of this body for roundly unserious policy 
suggestions and make that clear to the American people that 
that should not be followed and that that is bad policy?
    Mr. Kerner. No. There's a couple other rules. First of all, 
even though you run every two years--the President declared the 
day he got elected that he's going to be running again. We did 
not deem him a candidate until later.
    So even though you're running every 2 years, if you choose, 
there's a date that we take from when you're actually, like, a 
declared candidate. So that's No. 1.
    No. 2, as I indicated, absolutely, as an adviser of the 
President, you can comment on policies. However, when you ask 
me about--talk about Democrats and people are running 
potentially for office, it gets a little bit closer, which is 
why we have a very robust advisory function. The folks sitting 
behind me who are in the Hatch Act unit's permanent nonpartisan 
officers, they advise, and they get questions just like you 
    Mr. Roy. But point to me in the statute--point to me in the 
statute where it would say that the political adviser to the 
President can't comment about Democrats' bad policies or, if 
the President's party was reversed, couldn't comment on 
Republicans' bad policies.
    Chairman Cummings. The gentleman's time has expired.
    You may answer the question.
    Mr. Kerner. Thank you. Thank you, Congressman.
    Chairman Cummings. Then we'll be going to Mr. Raskin.
    Mr. Kerner. The statute specifically says she's not allowed 
to use her official authority when she'd be speaking for the 
President in her official capacity in order to influence an 
    So if she's talking about folks who are running, there are 
restrictions on what she can say about them. And that's why we 
have this very robust advisory opinion that allows people to 
know exactly what----
    Mr. Roy. When all of Congress is running?
    Mr. Kerner. Well, they're not running all the time.
    Chairman Cummings. Mr. Raskin.
    Mr. Raskin. Thank you very much, Mr. Chairman.
    Mr. Kerner, President Trump appointed you to this position. 
But that's irrelevant, of course, because you're a professional 
committed to the rule of law and you're governed by the Hatch 
Act itself.
    I want to ask you about the Hatch Act, because I've got 
65,000 constituents who are Federal employees. They've been 
told they cannot wear a button to work that says resist. They 
cannot talk about impeachment on the job. And the way I 
understand it is they can do whatever they want on their own 
private time in terms of electoral activity, but when they come 
to work they're there to work. They're not there to campaign 
for or against anybody.
    Is that a basic intuitive understanding of the statute?
    Mr. Kerner. Yes. Yes.
    Mr. Raskin. Okay. So what you found with Kellyanne Conway 
was that she was actually intervening in the election by making 
comments about specific candidates. Is that right?
    Mr. Kerner. And in her official capacity, yes.
    Mr. Raskin. She's allowed to say whatever she wants on the 
weekend and the evening. But as long as the American taxpayers 
are paying her salary, Congress has said, and the Supreme Court 
has affirmed this, she can't go and inject herself into 
political campaigns. Is that right?
    Mr. Kerner. That's correct.
    Mr. Raskin. Okay. But in January 2018, you started an 
investigation of Ms. Conway for making partisan statements 
strongly supporting Republican U.S. Senate candidate and 
accused child molester Roy Moore in the Alabama special 
election. You sent her interrogatories to get her side of the 
story, why she should be able to intervene in that campaign 
using her official capacity. And what did she say in response 
to that?
    Mr. Kerner. We received no response.
    Mr. Raskin. She never responded?
    Mr. Kerner. She did not respond.
    Mr. Raskin. Okay. You sent President Trump a report finding 
that Ms. Conway's media advocacy for Roy Moore violated the 
Hatch Act. Did you give her an opportunity to respond to that 
report before you released it?
    Mr. Kerner. Yes, we did.
    Mr. Raskin. And did she respond?
    Mr. Kerner. She did not.
    Mr. Raskin. Did President Trump respond in any way to 
discipline this employee when tens of thousands of my employees 
have been told they can't even wear a button to work if it says 
resist, which is a word in the English language, right?
    Did President Trump respond to you?
    Mr. Kerner. We did not get a response, no.
    Mr. Raskin. Okay. In December of last year, you sent Ms. 
Conway a letter explaining she could not use the same Twitter 
account for official government business and then use it to 
disparage Democratic Republicans and support Republican 
candidates like her beloved Roy Moore in Alabama. That letter 
gave Ms. Conway simple recommendations to come into compliance 
with the law to say here's how you separate what's your 
official business that you're paid for by the American people 
and your partisan political activity.
    How did she respond to that letter?
    Mr. Kerner. We received no response.
    Mr. Raskin. Okay. So for 18 months you've engaged in, 
perhaps, eight, 10, 12 different attempts to get her to 
respond. Did she ever once respond to you?
    Mr. Kerner. She did not.
    I do want to clarify one thing. We did have conversations 
with the White House Counsel's Office. So there were--so on her 
behalf, if you will. So there were some back and forth in that 
regard. But we never heard from her directly.
    Mr. Raskin. Ms. Conway seemed to ridicule the enforcement 
of the Hatch Act, as the chairman stated. On one occasion, she 
had the audacity to mockingly ask: Let me know when the jail 
sentence starts.
    What message does that send to my constituents who are 
governed by the Hatch Act? And what does it send--what message 
does it send to those postal workers who have been disciplined 
for violating the Hatch Act?
    Mr. Kerner. I thought those comments were very unfortunate.
    Mr. Raskin. Does it send the message that there's one 
standard that applies to people who are in President Trump's 
favor and a different standard that applies to millions of 
Federal employees who are subject to the requirements of the 
Hatch Act?
    Mr. Kerner. I think it sends the wrong message. It sends 
the message that the Hatch Act was not going to be evenly 
    Mr. Raskin. Okay. Now, look, we've heard some murmurings 
about freedom of speech from the other side of the aisle, which 
is unusual. So I want to pounce on the moment to say that's 
great that people are talking about freedom of speech.
    The Hatch Act has been twice challenged in the Supreme 
Court by unions for working people saying we should be able to 
express ourselves politically at work. And generally, our 
colleagues say, no, that's not the case, we want a straitjacket 
on your political speech at work. But the Supreme Court has 
upheld the Hatch Act.
    When you discipline employees, do you allow constitutional 
arguments to take place? Can people make a free speech argument 
    Mr. Kerner. Sure. When we take a case to the MSPB, they can 
make whatever argument they would like. It's just like a 
regular proceeding.
    Mr. Raskin. All right. And we just haven't heard anything 
from Ms. Conway about why the line should be drawn differently 
from her than it's been drawn for everybody else.
    You know, I've got to say, her contemptuous defiance of 
your board and you, as the director of it, is unacceptable and 
intolerable. Her contemptuous defiance of this committee is 
unacceptable. And I hope we are going to render this subpoena 
    And I just want to say, the message should go out to all of 
the employees in the White House: If you act in contempt of the 
American people and Congress, we will find you in contempt of 
the American people and of Congress.
    I yield back, Ms. Chairman.
    Chairman Cummings. Mrs. Miller.
    Mr. Massie.
    Mr. Massie. Thank you, Mr. Chairman.
    Mr. Kerner, you're not saying that Kellyanne Conway 
couldn't say any of the things she said, right? She still has 
the First Amendment?
    Mr. Kerner. Correct.
    Mr. Massie. She could say whatever she wants.
    Mr. Kerner. That's correct.
    Mr. Massie. In fact, you agree that she could say all of 
those things. There's a legal way she could say all of those 
    Mr. Kerner. Yes. Correct.
    Mr. Massie. What you have taken offense with is the manner 
in which she said them. You said she's violated the Hatch Act.
    What are the determinants that you and your staff behind 
you use in deciding whether somebody's speech is their exercise 
of their First Amendment right or a violation of the Hatch Act? 
What are some of the factors that go into that?
    Mr. Kerner. So the way I understand it--obviously, I don't 
conduct the investigation. It's done by the professional staff. 
But from what I understand is they look at is the person 
speaking in their official authority, in their official 
    Mr. Massie. And what factors would go into that?
    Mr. Kerner. Is she introduced as counselor to the 
President. Is she speaking on the White House lawn. Is she in 
any other way speaking on behalf of the President rather than: 
I'm Kellyanne, I just want to talk to you what I think.
    So once that's done--in a lot of these appearances, you 
will, she's introduced as counselor to the President. She's 
speaking for the President. So it's in her official capacity.
    Mr. Massie. What about the time she says it? Mr. Raskin 
said to you in a question: She could say whatever she wants on 
the weekend and in the evening. And you said correct.
    Mr. Kerner. Well, I thought there was more to that 
    Mr. Massie. There was a little more to that question.
    Mr. Kerner. I thought the implication was in her own----
    Mr. Massie. Do you ever take into account the time at which 
something is said?
    Mr. Kerner. I'm sure our Hatch Act unit does look at when 
    Mr. Massie. What time does your Hatch Act unit show up to 
    Mr. Kerner. I'm sure they work regular work hours.
    Mr. Massie. Like, regular--for America, that might be 
longer than D.C. But in D.C., I understand it to be about nine 
to five.
    Mr. Kerner. I think they stagger their time so people are 
available. So let's say from seven to six or seven.
    Mr. Massie. When you worked in Congress, what were the 
hours here?
    Mr. Kerner. They were usually nine to six during session 
and nine to five during recess.
    Mr. Massie. Okay. Very good.
    Well, I went and looked at the first three videos, I 
watched the first three videos of Kellyanne Conway talking in 
interviews on TV. And one thing I noticed in two--I didn't get 
a chance to go through all of your examples, but in the first 
three you gave, two of them were not on government property. 
And, in fact, all three of them were outside of the window of 
nine to five. There was one interview at 8:03 a.m., one at 8:44 
a.m., and one at 10:17 p.m.
    I would hope Mr. Raskin might agree that somebody acting at 
    Mr. Raskin. Would the gentlemen yield?
    Mr. Massie. Yes, I would.
    Mr. Raskin. I think you make an astute point. The question 
is whether she's operating in an official capacity representing 
the government or not.
    Mr. Massie. Reclaiming my time.
    So, Mr. Kerner, what would you use to determine if, at 
10:17 p.m., somebody is on their own time or they still belong 
to the taxpayer?
    Mr. Kerner. Well, as the Congressman just said, and also as 
my staff informs me, I should be clearer, the issue isn't time, 
    Mr. Massie. So she's on the clock all the time, 3 a.m.----
    Mr. Kerner. Right.
    Mr. Massie. Okay. So what do you use to determine whether 
it's her time and her First Amendment or your time, the 
    Mr. Kerner. It all depends whether she's speaking on her 
own behalf or in her official capacity.
    Mr. Massie. And how do you know that?
    Mr. Kerner. ``I'm speaking for the President.'' ``I'm the 
counselor to the President.'' ``I'm in front of the White 
    Mr. Massie. Okay. So I watched those interviews. She didn't 
introduce herself as such. The interviewer put that on the 
screen or introduced her as that.
    Who gets to pick what goes on the chyron on the screen? 
Does Kellyanne Conway get to pick it?
    Mr. Kerner. I think generally it's the producers of the 
    Mr. Massie. It's the producer. Can she even see what's on 
the screen?
    Mr. Kerner. I think she knows when she's there representing 
the President.
    Mr. Massie. But she can't see what's on the screen.
    With all due respect to my friends Mark Meadows and Jim 
Jordan, who are in the Freedom Caucus, I've been introduced as 
a member of the Freedom Caucus. I am not in the Freedom Caucus. 
It shows up on the chyron. I don't get to pick that. I don't 
get to choose that. It is not her choice to pick that.
    So I would maintain that the first three examples you gave 
us are extremely poor examples. They were outside of the work 
window. She didn't get the chance to put what was on the chyron 
or to make it her opinion. And, you know, she didn't say what 
her title was.
    And I just think if you're trying to claim that all 24 
hours of the day belong to the taxpayer, I think that's wrong. 
You're not affording her anyplace to express her personal 
opinion. And I think it's wrong. It's what makes this a sad 
pursuit because of the choices, the examples you've chosen.
    And with that, I yield back, Mr. Chairman.
    Mr. Kerner. Could I just respond to one thing?
    Thank you.
    I understand your argument. I'm just looking at the first 
example. She's standing at the White House. She's----
    Mr. Massie. Okay. What about the second and third example. 
Where is she? She's at FOX studios, right?
    You're telling me that that when she's at FOX studios at 
10:17 p.m., you own her time. I disagree.
    Chairman Cummings. All right.
    Mr. Kerner. The issue is not about time. It is not even 
about who operates the chyron. The issue is she talking about 
official administration matters. And if she's representing what 
the President thinks, what the President says, what the 
official position is, then she's bound by not being involved in 
    Mr. Massie. Mr. Chairman, could he explain a way that she 
could do it legally?
    Chairman Cummings. I hope he'll explain it a little bit 
later. Right now it's Rouda's----
    Mr. Massie. Just looking for a legal way for her to----
    Chairman Cummings. Right now it is Mr. Rouda's turn, 
please, sir.
    Mr. Rouda.
    Mr. Rouda. Thank you, Mr. Chairman.
    Mr. Kerner, thank you for being here today. And I just want 
to reiterate again my understanding is you are a conservative 
    Mr. Kerner. Yes, sir.
    Mr. Rouda. You voted for Ronald Reagan?
    Mr. Kerner. Sure did.
    Mr. Meadows. Is that a political statement?
    Mr. Rouda. Reclaim my time.
    I voted for Ronald Reagan as well. And while I disagreed 
with some of his policies, I miss his integrity and character, 
especially in these days.
    But in your position, you were appointed by President 
Trump, as we heard earlier. Is that correct?
    Mr. Kerner. Right. Yes.
    Mr. Rouda. So I just want to be very clear here. We have a 
conservative Republican who was appointed by a Republican 
President who delivered this report with how many violations?
    Mr. Kerner. So there were 10 media appearances that we 
found there were violations along with the Twitter account.
    Mr. Rouda. So in total, how many violations?
    Mr. Kerner. So 11, if you will.
    Mr. Rouda. Eleven violations.
    How many violations did you have under the Obama 
    Mr. Kerner. So you mean for the entire administration?
    Mr. Rouda. Yes.
    Mr. Kerner. If I may----
    Mr. Rouda. At least with the senior aides, senior 
    Mr. Kerner. So on the Cabinet members there were two 
letters we sent, on Secretary Sebelius and Secretary Castro. 
Obviously there were some other allegations.
    Mr. Rouda. Sure. But within the Cabinet. So how many in 
total for those two? Just one each?
    Mr. Kerner. One each.
    Mr. Rouda. One each. So over 8 years----
    Mr. Kerner. Yes.
    Mr. Rouda [continuing]. two violations. Yet we have one 
person here in the first 2 years of this administration, 
slightly over 2 years, who has 11 violations. Is that correct?
    Mr. Kerner. Yes. Well, 11 on this report, and then 2 more 
on the first report.
    Mr. Rouda. Okay. And in an effort to get her to take action 
to rectify these mistakes, these violations, or these 
purposeful violations, she has not responded, she has not 
agreed to stop. In fact, we've seen her testimony just the 
opposite. She's basically making it very clear that she doesn't 
care what you think in this report. Is that correct?
    Mr. Kerner. I think that's fair.
    Mr. Rouda. So we talk about double standards and hypocrisy. 
I believe that's what the ranking member said earlier. And yet 
I have here multiple quotes from the previous chair of this 
committee when the current minority was in the majority.
    And it's very clear, when you look at what past Chairman 
Issa said, that demanding that these Hatch violations of Obama 
individuals, that they be held accountable, some often 
demanding for their resignation or firing, yet we see a 
completely different voice here today.
    And I applaud you for bringing to the office the integrity 
that it deserves, the nonpartisanship that it deserves. I know 
it's very difficult to do that in these times, and I thank you 
on behalf of the committee and America for doing the right 
    It's clear that this White House has systemically and 
pervasively interfered with and obstructed investigations 
undertaken by multiple independent agencies in government, 
including the Offices of Government Ethics, Special Counsel 
Robert Mueller, Inspectors General, the Government 
Accountability Office, and now the Office of Special Counsel.
    And I think, if I recall correctly, you had stated that--I 
think I quote here--that the request from the White House that 
you withdraw and retract the report. Your response was, quote: 
Wholly inappropriate, these requests represent a significant 
encroachment on OSC's independence, unquote. Is that correct?
    Mr. Kerner. Yes. That's correct.
    Mr. Rouda. Do you stand by that quote today?
    Mr. Kerner. Yes, sir.
    Mr. Rouda. Can you elaborate on why you think it is so 
egregious that the White House is taking these actions?
    Mr. Kerner. Sure. So OSC, while we're anchored in the 
executive, of course, we're an independent agency. And as an 
independent prosecutorial investigative agency, it's very 
important to preserve our ability to do essentially oversight 
over the executive branch.
    If the White House can ask for our files and do oversight 
over us while we're doing oversight over their--over them--it 
really undermines our ability to be an independent force for 
the American taxpayer.
    Mr. Rouda. And usually in these types of situations you 
would see the conservative Republican appointed by the 
Republican President being attacked by the Democratic side of 
the aisle. But here we have just the opposite. You have the 
Democratic side of the aisle thanking you for your independence 
while the Republican side of the aisle is questioning your 
independent analysis and conclusions that you made.
    And, again, I want to thank you for your time today.
    And I yield back, Mr. Chairman.
    Mr. Kerner. Thank you.
    Chairman Cummings. Thank you very much.
    Mrs. Miller.
    Mrs. Miller. Thank you, Chairman Cummings and Ranking 
Member Jordan.
    Can an executive branch employee state the truth when asked 
on a TV interview? Can someone working for the President in the 
White House state the truth?
    Mr. Kerner. Sure. Of course they can state the truth. They 
just can't talk about--they just can't use the standard we 
talked about, use their official authority to influence an 
election or to talk about partisan politics. They just can't do 
that. They have to pivot away from that when they're employed, 
when they're in their official duties.
    Mrs. Miller. Is the same staff permitted to offer opinions? 
For example, could Valerie Jarrett, who was a senior adviser to 
President Obama similar to Ms. Conway, say something like 
George Bush enjoys painting and running?
    Mr. Kerner. I don't know enough of the facts. Is he a 
candidate at that time? I just don't know.
    Mrs. Miller. He's President.
    How about an opinion on policy? For example, could Valerie 
Jarrett go on TV and say former Vice President Dick Cheney is 
and hawkish and a hardliner on foreign policy?
    Mr. Kerner. I think comments on policy are allowed. When 
they talk about someone who's running for office, a candidate, 
and they're done in their official duties, there are 
restrictions on that.
    Mrs. Miller. Mr. Kerner, is Joe Biden creepy? Because in 
your letter to President Trump, you stated that Ms. Conway is 
not allowed to state that. However, I think we have all seen 
pictures where Joe Biden has acted inappropriately.
    Mr. Raskin. Mr. Chairman.
    Mrs. Miller. Can she express her opinion about a former 
elected official? It's opinion.
    Mr. Kerner. It's an opinion. I think the argument was made 
that she was just stating facts. And whether former Vice 
President Biden is creepy or not is not a fact. It's an opinion 
by Ms. Conway.
    Mrs. Miller. In March she stated: ``So there's a whole hot 
mess in the Democratic Party beginning with right over the 
bridge here in Virginia.''
    Mr. Kerner, I think we can agree that this is also a 
statement of opinion on policy. I have seen the statement 
backed up with fact and illustrated in policies like the Green 
New Deal, which would try to enact efforts to stop air travel 
altogether and inhibit cow emissions, as well as instituting a 
single payer healthcare system which would take away Medicare 
from the elderly and make health costs skyrocket.
    My colleagues across the aisle want to get rid of the 
recently passed tax cut which helped boost our economy. I don't 
know about you, Mr. Kerner, but this sounds like a hot mess to 
    Mr. Chairman, I am so disappointed that we are wasting our 
time on this hearing today. We have a crisis right now, right 
here on our southern border. We had 144,000 immigrants cross 
illegally into our country in May alone--144,000. We have 
lethal drugs flowing across a porous border. I know that for a 
fact in my state. They're killing our citizens.
    And my colleagues across the aisle have chosen to focus on 
the false Hatch Act allegations. That's pathetic.
    It's not as though 4 million jobs created since 2016, 
record low unemployment for African Americans and Hispanic 
Americans and major tax is reform enough. No. In order to hide 
and distract from all of the great growth that's happening in 
our country, they have to hold these hearings with a singular 
goal: to impeach and impugn our President.
    It is disappointing that my colleagues across the aisle 
still have not accepted the results of the election that 
occurred nearly three years ago. And now at every turn they 
continue to divide our country and waste our time with these 
hearings instead of focusing on the real issues facing everyday 
    I yield back my time.
    Chairman Cummings. Ms. Hill.
    Ms. Hill. Thank you, Mr. Chairman.
    I ask unanimous consent to enter into the record a report 
from the congressional Research Service called ``Hatch Act 
Restrictions on Federal Employees' Political Activities in the 
Digital Age.''
    Chairman Cummings. Without objection, so ordered.
    [*Report not submitted.]
    Ms. Hill. And I'd like to point out a couple of issues 
within that report that are addressed in response to my 
colleagues'--a few of my colleagues' remarks, the first of 
which is that there is guidance issued by OSC that's described 
in this that was issued in 2015, which is clearly before the 
Trump administration, around the use of social media.
    And there are a number of things stated, which is that--
let's see, we've got employees may not use their official 
authority to influence or interfere with or affect the results 
of an election, engage in political activity, the activity 
directed at the success or failure of a political party, 
comment to a blog or social media site that advocates for or 
against a partisan political party, candidate for partisan 
political office, or partisan political group, may not use any 
email account or social media to distribute, send, or forward 
content that advocates for or against a partisan political 
party candidate for partisan political office or partisan 
political group.
    And within this same report there is clarification for the 
exceptions to whom the Hatch Act applies, and it is around 
whether somebody is paid for by the Treasury or confirmed by 
the Senate, neither of which applies to Ms. Conway.
    So, Mr. Kerner, I want to thank you and your staff for this 
investigation and report. And the White House counsel wrote in 
his letter on June 11, 2019, that the OSC's report finding 
dozens of Hatch Act violations by Kellyanne Conway was, and I 
quote, ``the product of a fatally flawed process,'' and that 
it, quote, ``raises serious concerns regarding OSC's current 
investigatory practices.''
    Can you respond to that? Do you believe that it was a 
fatally flawed process?
    Mr. Kerner. No, I do not. I think it went through the exact 
process we always use, which means cases are started via a 
complaint. We are mandated by statute to investigate. The 
career nonpartisan civil servants do that. They conduct a 
thorough investigation, including whatever information they 
need, and then they take appropriate action or recommend 
appropriate action.
    Ms. Hill. So there was nothing unique or different about 
the process you used to investigate allegations against 
Kellyanne Conway?
    Mr. Kerner. No, other than the fact we already did that 
once. So there were some--we already had the fact that she was 
aware of the Hatch Act, because the first report lays out six 
or seven different times where she was informed. So there was a 
little bit of a--it was a little quicker in terms of that.
    Ms. Hill. So the actual investigation of Kellyanne Conway's 
compliance with the Hatch Act was conducted by career staff in 
OSC's Hatch Act unit.
    How experienced are the independent professionals who 
conducted this investigation?
    Mr. Kerner. So I like to call them the world's greatest 
experts on Hatch. They have about--I don't want to age anyone, 
but they have about 40 years of combined experience, and they 
apply the law to the facts--the facts to the law, the law to 
the facts dispassionately and in a nonpartisan way. And they're 
they consummate and ultimate professionals. I'm very proud to 
be able to represent them here today.
    Ms. Hill. So did any of them raise a concern to you that 
they felt like the work that went into the report released on 
June 13 was the product of a fatally flawed process?
    Mr. Kerner. Absolutely not.
    Ms. Hill. Additionally, you were a prosecutor for nearly 20 
years. I assume you have a lot of experience evaluating whether 
law enforcement investigations you relied on were thorough. Is 
that correct?
    Mr. Kerner. Yes.
    Ms. Hill. The White House also accused you of rushing to 
judgment, in quotes. But according to the OSC's report, the 
agency gathered evidence over many months. Your report 
indicates that the OSC first began reviewing Ms. Conway's 
Twitter account in November 2018 and that the agency spent 
months conducting that review.
    Mr. Kerner. That's correct.
    Ms. Hill. Do you believe that you rushed to judgment?
    Mr. Kerner. We did not.
    Ms. Hill. OSC also contacted the White House many times 
before completing its report. Does the OSC give career 
employees that many chances before issuing a finding of a 
    Mr. Kerner. I think this process had probably more back and 
forth with the White House than a normal case would.
    Ms. Hill. So, if anything, Ms. Conway and the White House 
have been given possibly more deference than most employees 
would have received?
    Mr. Kerner. I think that's right.
    Ms. Hill. The White House was provided the opportunity to 
review OSC's report before it was publicly released. Did the 
White House ever raise any concern that Ms. Conway never 
actually said or tweeted the things that the OSC included in 
its report?
    Mr. Kerner. No.
    Ms. Hill. So the White House does not dispute the facts. 
The President just does not want to hold Kellyanne Conway 
accountable. And my observation is that the reason for that is 
that she has been doing exactly what he wants her to do.
    As in so many other instances, this administration believes 
that it should not be held to the same laws that every other 
American should abide by. The executive branch is 
constitutionally established to carry out and enforce the laws 
of the land.
    So my question is, what does it mean for us if they won't 
enforce the laws of the land on themselves?
    Mr. Kerner. Well, that's a good question for the Congress. 
From OSC's perspective, we have to make sure that we abide by 
the statute and that we conduct fair, nonpartisan 
investigations that apply the facts to the law, and that's what 
we did here. And I think other steps are up to this committee 
and the Congress.
    Ms. Hill. Thank you, Mr. Kerner.
    I yield back.
    Mr. Kerner. Thank you.
    Chairman Cummings. Mr. Meadows.
    Mr. Meadows. Thank you, Mr. Chairman.
    Mr. Kerner, she made you mad, didn't she? Kellyanne Conway 
made you mad.
    Mr. Kerner. I would not describe that, no.
    Mr. Meadows. Well, you have mentioned to numerous people 
that she poked you in the eye. I mean, we've got----
    Mr. Kerner. Sure.
    Mr. Meadows. So you don't get mad when you get poked in the 
    Mr. Kerner. I would describe my reaction as being 
disappointed, because what I----
    Mr. Meadows. Well, I now you're describing that way.
    Mr. Kerner. Sure.
    Mr. Meadows. But you've talked to multiple people how you 
were mad and you felt pressured to put out this report. Isn't 
that true?
    Mr. Kerner. That's not true, no.
    Mr. Meadows. Oh, you--you're under oath, Mr. Kerner. I 
    Mr. Kerner. Sure.
    Mr. Meadows. I want to caution you. You know the rules.
    So you didn't talk to anyone to say that you felt heat from 
the media and from some on the left? You didn't feel any heat? 
You didn't mention that to anybody?
    Mr. Kerner. That's not what I said. What I said was that 
the report was written prior to her making those statements. 
The report was already done.
    Mr. Meadows. No, that's not the--I asked a different 
    Did you tell anybody that you felt pressure from media and 
others on the left to actually address this problem?
    Mr. Kerner. I don't know what ``address this problem'' 
    Mr. Meadows. Write the report. It's fairly clear.
    You didn't feel any pressure? You didn't tell anyone that 
you felt pressure?
    Mr. Kerner. I----
    Mr. Meadows. You're under oath. I know you did. Just answer 
    Mr. Kerner. I had a conversation in which I expressed that 
because she had made those statements I felt we ought to have 
an answer to those statements.
    Mr. Meadows. That's not the context in which you said that, 
Mr. Kerner.
    Mr. Kerner. Well, then you're going to have to give me the 
    Mr. Meadows. I am giving the context.
    Did you tell anyone that you felt pressure to do something 
about Ms. Kellyanne Conway?
    Mr. Kerner. Well----
    Mr. Meadows. Have you mentioned that to anyone? Yes or no?
    Mr. Kerner. I do not recall.
    Mr. Meadows. You do not recall?
    Mr. Kerner. I do not recall saying what you're saying----
    Mr. Meadows. All right. Well, what about--what about----
    Mr. Kerner. Or on the context, I can't answer that.
    Mr. Meadows. All right. What about in the response that you 
actually had to the Office of General Counsel where you said 
that she poked you in the eye?
    Mr. Kerner. I'm sorry. The Office of General Counsel?
    Mr. Meadows. The White House.
    Mr. Kerner. You mean the White House counsel.
    I did tell them that I felt that what she said was 
inappropriate, that it was a poke in the eye. That's correct. 
But there was no pressure in terms--the report was written. 
    Mr. Meadows. Mr. Kerner, let me just tell you that dog 
doesn't hunt, because you've told multiple people. It wasn't 
just the White House counsel.
    Under what authority do you have to write prohibitions 
against using Twitter? Does OSC have the legal authority to 
write those prohibitions?
    Mr. Kerner. I believe we do.
    Mr. Meadows. No. Under what statute? Quote the statute. 
Because it is uniquely reserved for OPM. We've got Office of 
Legal Counsel that has actually given an opinion, CRS that's 
been quoted. It is not your authority, Mr. Kerner. Wouldn't you 
agree with that?
    Mr. Kerner. No, I would not. I disagree with that.
    Mr. Meadows. Okay. Where is the statute? Quote the statute.
    Mr. Kerner. So the statute is--so there's the Hatch Act 
statute and its regulations.
    Mr. Meadows. No. I know the Hatch Act statute. I actually 
read it.
    When it was amended, what was the Senator's name that did 
the amendment?
    Mr. Kerner. I don't recall.
    Mr. Meadows. Well, you're the expert. You got experts 
behind you.
    What was the Senator that actually was on the House floor--
on the Senate floor--doing the amendment? Who was it? You're 
the expert.
    It's my time, Tlaib.
    Mr. Kerner. I'm sorry, sir. We don't know. I don't know 
    Mr. Meadows. Okay. Well, I can tell you it was Senator John 
Glenn. Because you know what? I've done the research. 
Everybody's talking about the rule of law here and upholding 
the rule of law. It's time that you stay consistent with the 
law, because you do not have the ability to even set the 
regulations for Twitter.
    Mr. Kerner. Can I answer that now, since I got the section? 
It's 5 USC 1212(f), which provides the power for OSC to provide 
advisory opinions.
    Mr. Meadows. Advisory opinions are not rules and 
regulations. They're very different. That's reserved for OPM. 
Advisory opinions, when it comes to regulations, it--I promise 
you, I've done the work. I have the homework.
    Mr. Kerner. I'm not disagreeing with you. I'm just telling 
you what my professional staff, who's been doing this for 40 
years, has told me. We are issuing guidance----
    Mr. Meadows. So do you have an advisory opinion for this 
particular Twitter use? Do you have an advisory opinion that's 
out there from your OSC?
    Mr. Kerner. I'm sorry. I couldn't hear the beginning----
    Mr. Meadows. Do you have an advisory opinion on Twitter use 
from OSC?
    Mr. Kerner. We have the social media guidance we've done. 
But on the Conway Twitter use, it's not actually done under 
that. The Conway Twitter use was done under the statute and 
what the----
    Mr. Meadows. But isn't it her personal Twitter account? 
It's KellyannePolls, which she had before she ever was a 
Federal employee.
    Mr. Kerner. You know, Congressman, it is. It is her 
personal account.
    Mr. Meadows. And so you're telling her she can't use her 
personal Twitter account to tweet something out?
    So is RealDonaldTrump his personal account or his official 
    Mr. Kerner. The President is exempt from the Hatch Act. 
    Mr. Meadows. Well, is anybody else exempt?
    Mr. Kerner. The Vice President.
    Mr. Meadows. Is anybody else exempt?
    Mr. Kerner. Not that I know of.
    Mr. Meadows. Well, you need to go to OPM and read the 
guidance. Because the guidance in subpart E--and I would ask 
unanimous consent that it be put in the record--that it 
actually gives other exemptions in the very CRS report that Ms. 
Hill identified. Have you read that?
    Mr. Kerner. Yes. And I do not believe it gives exemptions 
for use of the official authority section that we have 
mentioned here.
    Mr. Meadows. It gives----
    Chairman Cummings. The gentleman's time has expired.
    Mr. Meadows. It gives exemptions for Presidential 
appointees and Cabinet members, and it would apply here, 
according to every outside counsel that we checked with.
    I yield back.
    Mr. Kerner. But not----
    Chairman Cummings. Let me--I do believe, as I'm listening 
to my colleague, that your integrity has been challenged. And I 
believe in fairness. And I want you to--I mean, if you want to 
clear up anything, I'm going to give you that opportunity.
    Mr. Kerner. Well----
    Chairman Cummings. Let me finish. I haven't finish.
    Mr. Kerner. Sorry. Apologies.
    Chairman Cummings. Because one of the things I noticed is 
in this committee there is a--folks are anxious to find--no, 
allege that people perjured themselves. And in fairness to 
you--Mr. Meadows said it at least four or five times, reminding 
that you are under oath.
    I'm not questioning that. I'm just giving you an 
opportunity to clear yourself. That's all. And if you don't 
want to, that's fine.
    Mr. Kerner. No, I'm happy to respond.
    I did not understand the context of the question and Mr. 
Meadows didn't provide me the context. So I don't know when he 
says, did you tell anyone? I don't know what I told someone in 
a hypothetical. So--now, the issue on the----
    Mr. Meadows. Well, I can give the context, Mr. Chairman, if 
you want the context. It's truthful----
    Chairman Cummings. Mr. Meadows.
    Mr. Meadows [continuing]. a truthful witness is key.
    Chairman Cummings. Mr. Meadows, you're out of time. I'm 
trying to get--allow----
    Mr. Meadows. Well, he was given 10 minutes for an opening 
statement, Mr. Chairman.
    Chairman Cummings. Well, please.
    I am trying to be fair to this distinguished conservative 
Republican who has simply come to give his opinion.
    Now, his integrity has been challenged. And I'm simply--if 
he doesn't want to take advantage of it--because I've seen 
what's happened in this committee over 23 years.
    And all I'm saying is, if you want to clear up something, 
clear it up now. If not, you don't have to. But then I'm going 
to move on to my next questioner.
    Mr. Kerner. I'm happy to--if I may just finish my point.
    So as I indicated, I asked Mr. Meadows for the context. 
Prior to just now, he really didn't provide me the context.
    Obviously, the report--so just on the release of the 
report. The report was written prior to these statements being 
done. When the statements by Ms. Conway on May 29 were made, it 
became clear that she was, A, not remorseful, which is one of 
the criteria that's used by the MSPB, and furthermore, that she 
was not interested in complying with the Hatch Act.
    I felt, as an agency head, that she did, in fact, stick a--
poked us in the eye. We felt, as Jonathan Turley said, that 
that was a direct attack on OSC, and that we felt that we had 
the report. And since there was almost practically no way that 
she was going to come into compliance, it was time to release 
the report. That was what happened there.
    It wasn't done because she hurt my feelings or anything 
like that. I was disappointed that she said these things, 
because I had hoped that we could reach an agreement with her 
to get her to abide by the Hatch Act. And I know the White 
House had counseled her innumerable times on that.
    And so I just want to be clear that whatever feelings I had 
were unrelated to the release of the report. They were just a 
recognition that she was just not going to comply. And so I 
just want to be clear.
    Chairman Cummings. And when you say poke in the eye, what 
do you mean? Is that figuratively or literally.
    Mr. Kerner. It's a figure of speech, Mr. Chairman. It's 
    Chairman Cummings. All right. Very well.
    Ms. Wasserman Schultz.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman.
    You know, unfortunately, when some don't have facts on 
their side, they resort to bullying. And our history in America 
is replete with people who have, under the color of their 
authority, who have bullied convictions out of folks who were 
innocent, who have bullied and berated individuals accused 
wrongly of some conduct. And that results in admissions of 
guilt even when they are not guilty.
    So I apologize on behalf of the folks on the other side of 
the aisle who clearly don't have facts on their side and have 
had to result to bullying tactics to really help contribute to 
trying to undermine your own credibility.
    With that said, I'm one of the few members on this 
committee, if not only the one, that has balanced a partisan 
role, not a political role but a partisan role at the same time 
I had an official one. And you're right, you don't control what 
you're called on the chyron. I was usually called both, DNC 
chair and Member of Congress.
    But I can assure you that when I was there in my official 
capacity--even though, by the way, the Hatch Act does not apply 
to Members of Congress, so I could be as political as I wanted 
to be in any interview--I always made sure, especially if the 
interviewer asked me a political question, I made sure that I 
clarified verbally that I was there in my official capacity and 
it wasn't appropriate to answer that question.
    That having been said--so it's achievable if you're 
committed to actually abiding by the law or actually have some 
    So Special Counsel Kerner, I want to thank you for joining 
us today.
    The Office of Special Counsel issued a report in March 2018 
regarding Ms. Conway that recommended to President Trump that 
he take, quote, ``appropriate disciplinary action.'' President 
Trump, as we've noted, however, failed to discipline Ms. 
    Ms. Conway's behavior did not change following that 2018 
report. Is that correct?
    Mr. Kerner. That's correct.
    Ms. Wasserman Schultz. In fact, her Hatch Act violations 
increased rather than decreased.
    So let's watch the clips of interviews, so that we can see 
what we're dealing with here, that Ms. Conway conducted during 
one week in April 2019, more than a year after OSC's report.
    [Video shown.]
    Ms. Wasserman Schultz. 9:04 a.m.
    Mr. Kerner, are these the kinds of statements that you 
expect from a Federal official who has reformed her actions 
after being found in violation of the Hatch Act.
    Mr. Kerner. I believe these--these are some of the 
statements that we found to have violated the Hatch Act.
    Ms. Wasserman Schultz. So Ms. Conway violated the Hatch Act 
not one, not two, not three, but four times. Is that correct?
    Mr. Kerner. I think we chronicled about 10 appearances. And 
that's in our second report.
    Ms. Wasserman Schultz. Are you aware of any other senior 
official who OSC found to have violated the Hatch Act four-plus 
times or four times in one week like this one was?
    Mr. Kerner. I'm not aware of that.
    Ms. Wasserman Schultz. Mr. Kerner, how does Ms. Conway's 
conduct undermine public confidence in the executive branch?
    Mr. Kerner. I think it's very important to make sure that 
when we have a report like this and there's a hearing like this 
that people in the Federal work force understand that they are 
going to be treated the same, that we're not going to have a 
two-tier Hatch Act enforcement system.
    Ms. Wasserman Schultz. When Ms. Conway was asked about the 
committee's invitation to testify today, she said, and I quote, 
``It's not even clear to us at the White House, according to 
White House counsel, that the Hatch Act applies to assistants 
to the President.''
    Does the Hatch Act apply to assistants of the President?
    Mr. Kerner. Yes, it does.
    Ms. Wasserman Schultz. Ms. Conway went on to say, and I 
quote, ``It isn't even clear what the Hatch Act allows.''
    Is it credible to believe at this point that Ms. Conway 
does not know what the Hatch Act allows?
    Mr. Kerner. No.
    Ms. Wasserman Schultz. I call on President Trump to hold 
Ms. Conway to the same standards as all other Federal 
employees. President Trump must fire Kellyanne Conway.
    Thank you. I yield back the balance of my time.
    Chairman Cummings. Mr. Green.
    Mr. Green. Thank you, Mr. Chairman.
    And I'd just like to point out, since it was mentioned in 
the previous comments, that 9:04 was on a Saturday.
    Ms. Wasserman Schultz. Do you work on--would the gentlemen 
yield? Do you work on Saturday? I work on Saturday.
    Mr. Green. And the Jake Tapper show, it was on a Sunday.
    You mentioned the 9:04, so I'm just pointing out that it 
was a Saturday.
    Mr. Chairman, I love the fact that the Members of the other 
side say they want the rule of law abided by. I'm sure the 
several murdered individuals killed by previously held illegal 
immigrants by law enforcement from sanctuary cities, cities 
designed by the left for the exact purpose of breaking the law, 
I think they owe them an apology.
    Mr. Chairman, I yield my time to the ranking member.
    Mr. Jordan. Mr. Kerner, who complained? You know, Kellyanne 
Conway said--talking about Senator Biden and Senator Sanders--
she said they were two old White career politicians. Did 
Senator Biden or Senator Sanders complain? Who filed the 
    Mr. Kerner. I don't have that information.
    Mr. Jordan. You don't know who filed the complaint?
    Mr. Kerner. No, I don't.
    Mr. Jordan. So how did you know that Ms. Conway was in 
maybe alleged violation of the Hatch Act?
    You don't know who filed the complaint? That's how you 
figure this stuff out, right, that's how you start an 
investigation, someone complains?
    Mr. Kerner. Someone files a complaint. My unit knows who 
    Mr. Jordan. Couldn't you ask them? They're right behind 
you, aren't they? Would you turn around and ask them who 
    Mr. Kerner. Sure.
    Mr. Jordan. What organization?
    Mr. Kerner. Apparently there are multiple complaints.
    Also, I think we generally don't disclose who files 
complaints. We don't give the name of----
    Mr. Jordan. They don't get to know who their accuser is?
    Mr. Kerner. Well, there is no accuser. They file a 
    Mr. Jordan. Well, isn't it true--let me ask it this way, 
then. Isn't it true that an organization, CREW, has done press 
releases saying they are the ones who filed the complaint with 
the OSC about Mrs. Conway's alleged violation?
    Mr. Kerner. I believe that's true.
    Mr. Jordan. So it was CREW who did complain. You knew that. 
It took us--it took me a minute just to get you to say that?
    Mr. Kerner. Well, you know, like I said, we have to be 
    Mr. Jordan. They publicized it.
    Mr. Kerner. Well, if they publicize, they publicize. But we 
still have obligations to protect complainants. We do this in 
the whistleblower area, obviously more prominently----
    Mr. Jordan. Do you happen to know who the former chairman 
of CREW is, Mr. Kerner?
    Mr. Kerner. I know who the current chairman is.
    Mr. Jordan. Do you know the former chairman? David Brock?
    Mr. Kerner. I'm aware of Mr. Brock.
    Mr. Jordan. Yes, you know Mr. Brock.
    Do you know who the board members are on CREW, Mr. Kerner?
    Mr. Kerner. No, I don't.
    Mr. Jordan. You don't? We checked. Zephyr Teachout, Impeach 
Trump Now individual, former Democrat candidate for New York 
state attorney general. Claire McCaskill, former Democrat 
Senator. Amy Pope, former deputy assistant to President Obama. 
All of those people are part of CREW, on their board. Wayne 
Jordan gave $3 million to Democrat causes. He's on the board of 
CREW, the organization that complained to you all to start the 
investigation into supposed violation of the Hatch Act by Ms. 
Conway. It sounds like a lot of Democrats on this board.
    There is one Republican. We found this out, too. One 
Republican. Evan McMullin. Never Trumper Evan McMullin.
    Do you know who co-founded this organization?
    Mr. Kerner. No, I don't.
    Mr. Jordan. You don't?
    Mr. Kerner. No.
    Mr. Jordan. Norm Eisen. Do you know Mr. Eisen?
    Mr. Kerner. Yes, I do know who he is.
    Mr. Jordan. Do you know what he's doing right now?
    Mr. Kerner. He's an ethics guy. I don't know where he is at 
the moment.
    Mr. Jordan. Working for Jerry Nadler. He's the impeachment 
lawyer hired by Mr. Nadler and the Democrat committee. That's 
the organization that filed the complaint.
    Do you know what else is interesting about this 
organization? CREW, same organization--you brought this up 
early on, after my opening statement, Mr. Kerner--CREW is the 
same organization sent a bunch of letters to the IRS. Guess 
what they said. Go after those Tea Party groups. It sounds like 
a little pattern here.
    Do you know if CREW has filed any complaints since you did 
your June 13 letter to the White House and to Ms. Conway? Do 
you know if any organization--if they filed complaints, if they 
filed any more complaints, Mr. Kerner?
    Mr. Kerner. I'm not--I'm not sure.
    Mr. Jordan. They did, June 20.
    Mr. Kerner. Okay.
    Mr. Jordan. Do you know who they filed that complaint 
    Mr. Kerner. No, I don't.
    Mr. Jordan. You don't?
    Mr. Kerner. No, I don't.
    Mr. Jordan. Ivanka Trump.
    Again, it seems like a pattern here. First they go after 
Tea Party groups. Complaints to the IRS. Got to go after these 
folks. They're effective. Then complaints to you about 
Kellyanne Conway. Got to go after her. She's effective.
    Oh, and now, one week after your report, they file a 
complaint against Ivanka Trump.
    When Mr. Meadows was talking about feeling pressure, do you 
feel any pressure from CREW and these organizations who are 
filing these complaints, Mr. Kerner?
    Mr. Kerner. No, I don't.
    Mr. Jordan. No pressure from them?
    Mr. Kerner. None whatever.
    Mr. Jordan. Well, they sure are having a pretty good track 
record, IRS, two different times with you.
    Mr. Kerner. They're entitled to file complaints. They don't 
do the investigation. Once the complaint is initiated, the 
    Mr. Jordan. No, we know who does the investigation. We know 
it's you. We know it's you.
    Mr. Kerner. I don't do the investigation, sir.
    Mr. Jordan. Well, it's your group.
    Mr. Kerner. Well, no, no. Sure. But it's my--it's the 
nonpartisan staff.
    Mr. Jordan. You're not responsible for the investigation 
that took place? You're the guy in charge.
    Chairman Cummings. You may answer the question.
    Mr. Kerner. Thank you.
    Mr. Jordan. Did they sign the letter or did you?
    Mr. Kerner. I signed the letter and I'm absolutely 
responsible. But I don't conduct the investigation. That's all 
I was trying to say.
    Chairman Cummings. Thank you very much.
    Let me, to clarify on what the ranking member just asked 
you. Were there others, other than CREW, who had complaints 
with regard to Ms. Conway? Were there other people?
    Mr. Kerner. Yes, I believe so.
    Chairman Cummings. Other organizations?
    Come on, man. I'm listening. I can't hear you.
    Mr. Kerner. Yes, I think--I believe so.
    Chairman Cummings. Okay. I don't want to leave it--I don't 
want it left hanging----
    Mr. Kerner. No. No.
    Chairman Cummings [continuing]. that CREW was the only 
folks that may have issued a--some type of complaint.
    Mr. Kerner. There are other organizations, yes.
    Chairman Cummings. Very well. All right.
    Who's next?
    Ms. Kelly.
    Ms. Kelly. Thank you, Mr. Chair. I've said to you on more 
than one occasion that you have the patience of Job, and you 
are certainly showing it now.
    I've been on this committee for a little over 6 years. And 
6 years of it I was in the minority. We were in the minority. 
And the last administration was accused of everything they 
could have been accused of. And you would have thought it was 
the devil himself leading the country. So interesting to me now 
to hear comments of what the other side is accusing us of when 
it was embarrassing and so disrespectful what they did to the 
former President. But anyway.
    OSC social media guidance states, and I quote: Employees 
may not use a social media account designated for official 
purposes to post or share messages directed at the success or 
failure of a political party candidate in a partisan race or 
partisan political group.
    The conflicts of conflating official and political activity 
are innumerable. By reference, let's look at three of Kellyanne 
Conway's appearances on television in which she violated the 
Hatch Act.
    Per FEC filings, on February 10, 2019, the Trump reelection 
campaign received 1,425 donations totaling $71,740.70. On the 
11th, the day of her interview, it received 1,558 donations 
totaling $112,477.89, a 9 percent increase in donations and 57 
percent increase in value. On the 12th it received 2,059 
donations totaling $162,216.05, a 44 percent increase in 
donations and a 126 percent increase in value from the 10th.
    Her March 13 and March 18 appearances yielded similar 
results. The day after an appearance on average yielded 159 
percent increase in daily donations from the day before an 
interview. Clearly conflicts about--and television is only the 
tip of the iceberg. Social media creates many more 
opportunities for conflicts of interest.
    In November, your office issued warning letters to six 
White House employees appointed by President Trump who used 
their official Twitter accounts for political activity, 
specifically to promote President Trump's reelection campaign.
    Ms. Kelly. At least six White House employees did not 
follow OSC's social media guidance. Correct?
    Mr. Kerner. Yes.
    Ms. Kelly. One of the employees who received a warning 
letter was Raj Shah, the former deputy press secretary at the 
White House. Mr. Shah tweeted a message on June 4, 2018, that 
included a link to a Republican National Committee web page on 
the accomplishments of President Donald Trump's first 500 days 
in office.
    Should a Federal employee ever be tweeting political 
research from a party website on his or her official social 
media account?
    Mr. Kerner. I believe the guidance that the Hatch Act Unit 
has given is that they should not.
    Ms. Kelly. OSC did not find that Kellyanne Conway was using 
an official account, that we've talked about earlier, but her 
own personal Twitter account.
    Can you explain how a message sent on an official's 
personal social media account can be a Hatch Act violation?
    Mr. Kerner. Yes. Even though it's a personal account, if it 
has so many official statements on there that is essentially an 
official account, and if at an official media interview she 
gives that account as further reference, it can turn that into 
an account that's violating the Hatch Act.
    Ms. Kelly. OSC social media guidance includes the following 
example: You are Federal employee and maintain only a personal 
Twitter account. While you have some personal posts about 
family vacations and events with friends, most of your posts 
are retweets of your agency's initiatives and photographs of 
you at official events. You may not use this account to make 
posts directed at the success or failure of a political party, 
candidate in a partisan race, or a partisan political group.
    This example is exactly what Ms. Conway was doing, correct?
    Mr. Kerner. Yes. Yes.
    Ms. Kelly. Now that Kellyanne Conway got caught violating 
OSC's guidance, the White House is arguing that OSC does not 
have the authority to apply its guidance to Federal employees.
    Do you agree with this new argument from the White House 
that OSC should not provide or use guidance in interpreting the 
Hatch Act?
    Mr. Kerner. No, I don't.
    Ms. Kelly. This committee is the authorizing committee for 
OSC, and I believe OSC does have the authority to issue 
guidance and the authority to apply that guidance to its 
determinations of whether the Hatch Act has been violated. The 
White House's novel argument is just a distraction, which they 
are very good at, from the fact that the President refuses to 
hold his advisor accountable for actions that clearly violate 
the law. The President should fire Kellyanne Conway.
    And I yield back.
    Chairman Cummings. Ms. Foxx.
    Ms. Foxx. Thank you, Mr. Chairman.
    Mr. Kerner----
    Mr. Kerner. Yes.
    Ms. Foxx [continuing]. in 2013, the OSC initiated an 
investigation of then-Secretary of Labor Hilda Solis for Hatch 
Act violations. You want to talk about political activity, you 
want to talk about soliciting money, nothing says pushing for a 
particular partisan candidate or violating the Hatch Act like 
asking subordinates to help raise money for President Obama, 
which is exactly why the Hatch Act was initially enacted in the 
1930's to keep FDR from doing the same thing.
    In a voicemail left on a Labor Department employee's phone, 
Secretary Solis stated, quote: Hi, this is Hilda Solis calling. 
I'm just calling you off the record here. Wanted to ask you if 
you could, um, help us get folks organized to come to a 
fundraiser we're doing for Organizing for America for Obama 
campaign, end quote.
    Mr. Kerner, this seems like a textbook Hatch Act violation. 
Is that correct?
    Mr. Kerner. You know, I don't know all the facts, 
obviously, but it sounds like a Hatch Act violation just from 
what you've read.
    Ms. Foxx. I think this aligns exactly with Congress' intent 
for enacting the law, quote, to protect Federal employees from 
political coercion in the workplace and to ensure that Federal 
employees are advanced based on merit and not based on 
political affiliation.
    Mr. Kerner, did the OSC ever file a report against 
Secretary Solis?
    Mr. Kerner. I believe we had an open investigation, but I 
do not believe we filed a report, no.
    Ms. Foxx. Mr. Kerner, does OSC continue its Hatch Act 
investigations after the employee resigns from Federal office 
as a result of the investigation?
    Mr. Kerner. I think it just depends. In most cases, OSC 
does not continue the investigation; in some cases, it does.
    Ms. Foxx. And if it did open a case against Secretary 
Solis, would it have found that she violated the Hatch Act?
    Mr. Kerner. That's a hypothetical. At the time, I wasn't 
even there, so it's very hard for me to evaluate. I suspect, 
based on the facts you recounted, that there may have been a 
Hatch Act violation. Given that Secretary Solis left Federal 
employment, I know there was no report sent to the President.
    Ms. Foxx. But if you had found she did violate the Hatch 
Act, would the OSC have recommended that President Obama remove 
her from office?
    Mr. Kerner. You know, I think what happened in that case, 
my staff tells me they actually referred her to the Justice 
Department for a criminal referral, which is very unusual, 
because obviously most cases are civil. But I think this case, 
because of the facts you articulated and some obviously other 
facts, I believe she was referred to DOJ for a criminal 
investigation--for an FBI investigation.
    Ms. Foxx. And nothing was done by the Justice Department?
    Mr. Kerner. Nothing that I'm aware of, correct.
    Ms. Foxx. Okay. On May 4, 2016, OSC sent a letter to White 
House counsel's office regarding President Obama's press 
secretary Josh Earnest. In this letter, OSC laid out a series 
of Hatch Act violations perpetrated by Earnest. Let's go 
through some of Earnest's statements, because I think the 
Earnest case is pretty similar to Ms. Conway's, yet the 
treatment of these two individuals by OSC is vastly different.
    Statement: At the podium in the White House press briefing 
room on December 8, 2015, Earnest made the following comments: 
Let me just step back and say the Trump campaign for months now 
has had a dust beneficiary-like quality to it from the vacuous 
sloganeering to the outright lies, to even the fake hair. The 
whole carnival barker routine we've seen for some time. The 
question now is about the rest of the Republican Party and 
whether or not they are going to be dragged into the dustbin of 
history with him. And right now, the current trajectory is not 
very good.
    Is that a Hatch Act violation?
    Mr. Kerner. I believe OSC, once again, before my time, but 
OSC investigated this case and did find a Hatch Act violation. 
I think that's correct.
    Ms. Foxx. And did OSC write a letter to the White House 
asking President Obama to fire him?
    Mr. Kerner. No, it didn't.
    Ms. Foxx. But there were repeated comments made by Josh 
Earnest, very similar to those things that Ms. Conway is being 
accused of, and never did you write President Obama and say, 
fire Josh Earnest. Is that correct?
    Mr. Kerner. That's correct. Can I indicate why that case 
might be a little different?
    Chairman Cummings. You may answer the question. The time is 
out, but you may answer the question.
    Mr. Kerner. I completely agree with you, Congresswoman, the 
case was not referred to the President for disciplinary action. 
I think yet the facts are slightly different. In that case, 
after the violation came to OSC's notice, Mr. Earnest was 
apprised of the violations, he was counseled, and there were no 
further violations.
    In our case with Ms. Conway, we have two reports. The first 
report was sent to the President on the first two violations, 
and then there was no course correction, and then that's why 
the second report resulted in the recommendation.
    Ms. Foxx. Oh, I think it has to do with who's President and 
who's not President. I think that's really the base of it.
    Thank you, Mr. Chairman. I yield back.
    Chairman Cummings. Mr. Khanna.
    Mr. Khanna. Thank you, Mr. Chairman.
    Mr. Kerner, you were appointed by President Trump, correct?
    Mr. Kerner. Yes, sir.
    Mr. Khanna. So it's a little ironic that he's accusing you 
of being biased. I mean, he is the one who picked you to lead 
this organization.
    Mr. Kerner. I don't recall him--I don't recall the 
President accusing us of being biased. I think he accused us of 
not allowing Ms. Conway to exercise her First Amendment rights, 
but I don't remember bias, but maybe I forgot.
    Mr. Khanna. Has anyone in the White House accused you of 
conducting an improper investigation?
    Mr. Kerner. Sure. The White House counsel's letter said 
that they didn't think our investigation was fair and thorough.
    Mr. Khanna. But I just want to be clear that, you know, you 
were appointed by this administration.
    Mr. Kerner. That's correct.
    Mr. Khanna. Now, you know, I don't like going after people 
personally, and so let me ask you this. It's true that a lot of 
people in the past have had Hatch Act violations. I think the 
severity of these are many more.
    Let's say Kellyanne Conway were to come to you today and 
say, I understand what the rules are. I'm willing to abide by 
these rules and be more willing to actually follow the law.
    Do you think that could be a way that we can revolve this 
    Mr. Kerner. I think that would be an excellent outcome. 
Make me very happy.
    Mr. Khanna. So I suggest that one way that we can move 
forward and start doing the country's business is to have that 
reasonable compromise where we're not attacking someone 
personally and we're upholding the rule of law. And my hope 
would be that Ms. Conway may just come to you and start abiding 
by the Hatch Act, and we can move forward as a country to focus 
on other pressing issues.
    Mr. Meadows. Will the gentleman yield?
    Mr. Khanna. Yes.
    Mr. Meadows. Mr. Khanna, you and I have worked in a 
bipartisan way on a number of issues. Here is one of the things 
that I think that today highlights. We have two different sides 
saying two different things in terms of their interpretation. I 
think we would all agree that if you read the statute, it is 
very ambiguous. And in clarity for our Federal work force, I'm 
willing to work with you in a bipartisan way to clarify the 
Hatch Act so that we do not use taxpayer dollars for campaign-
related activities, but also work in a way that hopefully will 
stop this from being an ambiguous point going forward.
    And I thank the gentleman's spirit. I thank you.
    Mr. Raskin. Will the gentleman yield?
    Mr. Khanna. Yes.
    Mr. Raskin. And I also appreciate where he's going with 
this. I think that--I think Mr. Kerner had given Ms. Conway 
multiple opportunities to come in, precisely to have a 
discussion and a correction about her conduct, which is clearly 
repetitively and egregiously in violation of the law. There was 
nothing ambiguous about what she did. If there is something 
ambiguous about it, my constituents--all of our constituents 
need to know, because our constituents understand there's a 
complete ban on their engaging in partisan activity and 
partisan speech when they're acting in their official capacity. 
And I think Ms. Conway is capable of understanding that, and I 
think she's capable of conforming her behavior to what the rule 
of law is.
    But if the suggestion is by our colleagues across the aisle 
that the Hatch Act is unconstitutional, then we really should 
talk about that, especially with all of the labor unions, which 
have been arguing for a liberalization of the Hatch Act for a 
long time. Presumably, they don't just want a special rule for 
all the President's men and women, they would want a rule that 
applies to everybody in the Federal work force.
    Do we want people using their official email for partisan 
campaign purposes? Now, I think that that is a line that's been 
drawn, which makes a lot of sense, that we make people use 
their personal emails and not mix it with their official 
emails, and that they not use the official platform and pulpit 
they're given as a Federal employee to attack candidates that 
they don't like or to promote candidates that they do like. 
    Mr. Khanna. Mr. Raskin, if I could just reclaim.
    Mr. Raskin. Yes. I yield back.
    Mr. Khanna. And I welcome the effort to work with you and 
Mr. Meadows on clarifying further the Hatch Act, but I just 
want to reemphasize, Mr. Kerner, that you remain open to having 
a conversation with Ms. Conway and welcome perhaps her 
acknowledgment of mistakes and/or willingness to abide by the 
Hatch Act?
    Mr. Kerner. Absolutely.
    Mr. Khanna. Thank you.
    Mr. Kerner. Thank you.
    Chairman Cummings. Mr. Gosar.
    Mr. Gosar. Thank you, Mr. Chairman.
    Mr. Kerner, on April 30, 2013, you met with Lois Lerner and 
other high ranking officials from the IRS while you served as 
Senator John McCain's Senate Homeland Security Permanent 
Subcommittee on Investigations' staff director. Boy, that's a 
    In this meeting, you recommended harassing nonprofit groups 
until they're unable to continue operating. You told Lerner; 
Steve Miller; then chief of staff to the IRS Commissioner, 
Nicole Flax; and other IRS officials, quote, maybe the solution 
is to audit so many that it is financially ruinous, end of 
quote. In response, Lerner responded that, quote, it is her job 
to oversee it all, end of quote.
    Mr. Kerner, how can we take anything you say as objective 
when you yourself have a history of questionable ethics?
    Mr. Kerner. So this is a debunked story. This has been 
brought up three times already, once in 2015 against Senator 
McCain, then in 2018, ironically, a couple of months after OSC 
released the first Conway report, and then the second Conway 
    Any claim that I urged the IRS to target the Tea Party is 
completely false. This meeting, when you talked about so many, 
was not referring to any conservatives or Tea Party groups. I 
have the transcript here, the words ``conservative'' or ``Tea 
Party'' in a six-to eight-hour meeting never came up.
    Lois Lerner was not infamous yet, she was merely the head 
of the exempt organizations committee. She was talking to us 
about sham groups, which the Tea Party, I believe, was not. And 
I was asking a question. Notice the quote you attribute to me 
is not a quote; it's a paraphrase from a long meeting. And the 
paraphrase was: What tools do you have about sham 
    As I told the ranking member earlier, here is a copy that 
I'm holding in front of me of a dissent that we issued on the 
Senate Permanent Subcommittee on Investigations that excoriated 
the IRS for targeting conservative groups. I would never target 
conservative groups. I am here because of the Tea Party 
victory. The Tea Party won in 2010, and then I got the job on 
this committee in 2011, when Chairman Issa became the chairman.
    So the notion that I would ever target the Tea Party is 
just false. These allegations are always trotted out when it's 
time to punish me. And as the head of the whistleblower 
retaliation agency, I know what retaliation looks like, and 
that's what it looks like, and it's just a smear.
    Mr. Gosar. Gotcha. Well, you know, it does somewhat 
contradict your boss at the time. You know, because I'm from 
Arizona as well, and Senator McCain was fiery in regards to the 
Tea Party. Very contradictory to it. And, you know, from what 
he understood, a conflict of his McCain-Feingold jurisdiction. 
So just making sure I have that straight--that fact straight.
    Mr. Kerner. Well, can I just respond real quick?
    Mr. Gosar. Sure.
    Mr. Kerner. Thank you.
    So Senator McCain was furious when this scandal hit. So our 
meeting was on April 30. Ten days later, Lois Lerner admitted 
that she had targeted the Tea Party 3 years earlier, by the 
way. So the TIGTA report comes out shortly. Senator McCain was 
furious. He instructed me to go to--we had a very cordial 
relationship with the Democrats because Senator McCain and 
Senator Levin were close, and the Senate has a different vibe 
than sometimes the House does. However, he instructed me to go 
all out to show that that's unacceptable.
    And, also, if you think about it, Senator McCain, you're 
right, was really into campaign finance. That was one of his 
issues. This scandal destroyed the bipartisan efforts he was 
working on on campaign finance. In fact, he said, that's it, 
we're done.
    Mr. Gosar. Okay. I just wanted to clear it up----
    Mr. Kerner. I appreciate the questions.
    Mr. Gosar [continuing]. because there are a lot of 
questions out there in Arizona.
    Mr. Kerner. I appreciate it.
    Mr. Gosar. Now, the White House is standing behind Conway. 
White House counsel, Pat Cipollone, wrote a response to Special 
Counsel, yourself, claiming the report was based on numerous 
grave legal and procedural errors, end of quote. First, end of 
quote, even assuming that the Hatch Act applies to most 
senior--to the most senior advisors to the President in the 
White House, OSC has violated its statutory obligation to 
provide Ms. Conway a reasonable opportunity to respond, 
violating Ms. Conway's due process rights, and abused its 
discretion by issuing a report tainted by inappropriate 
external influences, end of quote. The White House counsel's 
letter says, adding.
    Second, OSC's overbroad and unsupported interpretation of 
the Hatch Act risks violating Ms. Conway's First Amendment 
rights and chills the free speech of all government employees. 
In fact, OSC has no legal authority to promulgate guidance on 
social media use that it treats effectively as binding rules in 
order to enforce its overbroad interpretation of the Act.
    This was illustrated by my colleague, Mr. Meadows.
    Third, contrary to your letter, Ms. Conway's Twitter 
account and her social media appearances do not violate even 
the standards used by OSC itself. Worst of all, OSC's call to 
the President to remove Ms. Conway from her Federal platform 
immediately is an outrageous as it is unprecedented.
    Mr. Kerner, what is your response to the reasonable 
arguments made by White House Counsel Pat Cipollone?
    Mr. Kerner. We put out a response. The White House 
unfortunately cited the wrong statute, among other things, made 
various errors. I will just say this. The procedure was 
followed--that we followed was absolutely appropriate. We did 
exactly what we do in these cases. We got a complaint, we 
investigated it. We found all these violations.
    You will note, in everything you just read, they barely 
touch on the fact that she spoke 10 times to the media, and 
while using her official authority, expressed views that were 
simply opinions on the partisan electoral process. You can't do 
    I'm as interested as anyone to help her comply and get her 
into compliance. As I told Congressman Khanna, I would like to 
see nothing better than that. Unfortunately, she has not been 
willing to do that, but we are always ready and stand ready to 
engage any time she would like.
    Chairman Cummings. Ms. Hill for unanimous consent request.
    Ms. Hill. Thank you, Mr. Chairman.
    I hope I can actually clear a few of these things up with 
the pieces that I'm about to enter into the record. The first 
is a copy of the text of 5 U.S. Code Section 1212, which 
establishes the powers and function of the Office of the 
Special Counsel.
    Mr. Meadows, when you mentioned that the Office of the 
Special Counsel can't prescribe regulations or advisory 
opinions on social media, that was concerning to me so I looked 
into it. And the Special Counsel--it says specifically, that 
the Special Counsel may prescribe such regulations as may be 
necessary to perform the functions of the Special Counsel, 
first. And then, second, it says that the Special Counsel may 
not issue any advisory opinion concerning any law, rule, or 
    I said, oh, my gosh, you might be right. But then the next 
sentence says, other than with regards to Chapter 15 or 
Subchapter 3 of Chapter 73. So I looked up those, and they say 
specifically around political activity.
    So the Special Counsel may indeed issue advisory opinions 
around political activity, and they did, which is the second 
piece I'd like to enter into the record, which is the Hatch Act 
Frequently Asked Questions on Federal Employees and the Use of 
Social Media and Email, published by the U.S. Office of Special 
Counsel on December 18 of 2015.
    Chairman Cummings. I'm going to admit the documents, but I 
want you to shorten your----
    Ms. Hill. That's it. I'm good. Thank you so much.
    Mr. Meadows. I have a unanimous consent request.
    Chairman Cummings. Mr. Meadows.
    Mr. Meadows. So I appreciate the gentlewoman's nudging 
there, so let me clarify it, because I think it's very clear, 
and I think if your team goes back and looks at it.
    I ask unanimous consent to put in the guidance that's 
actually from OPM, which would be subpart E, which says: 
Special provisions for certain Presidential appointees and 
employees paid from the appropriations of the Executive Office 
of the President. It is very clear there.
    The other is, is to suggest that a statute that it was 
actually written and amended the last time before Twitter was 
ever, ever invented, that it somehow applies retroactively is 
the just not accurate. And so I would ask unanimous consent 
that we put this into the record.
    Chairman Cummings. Without objection.
    Mr. Jordan. Mr. Chairman?
    Chairman Cummings. Mr. Jordan. And then we're going to go 
to Ms. Ocasio-Cortez.
    Mr. Jordan. Unanimous consent to enter into the record two 
complaints sent to the Office of Special Counsel by CREW, both 
addressed to Mr. Kerner. The most recent one, May 8, 2019. It's 
amazing how he couldn't remember that CREW filed complaints, 
but they were both sent to him, and one of them was just last 
    Chairman Cummings. Without objection, so ordered.
    Chairman Cummings. Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman.
    Thank you, Mr. Kerner, for being here. In your testimony, 
you describe the purpose of the Hatch Act as being a separation 
of the nonpartisan governance of the country from partisan 
political campaigning, which I think is the best frame to put 
this in.
    There may be some who are watching this hearing at home and 
they're saying, you know, so what, what's the harm? Can you 
explain why violations of the Hatch Act like Kellyanne Conway's 
should matter to the public?
    Mr. Kerner. Yes. Thank you. It's very important--the Hatch 
Act is really important, even today. I know Mr. Meadows talked 
about how when it was last amended there was no Twitter. Well, 
obviously we've also talked about email and other forms of 
social media so--social media and communication. The principles 
are the same.
    And the importance of the Hatch Act is that you have--it is 
very important to have a depoliticized work force, especially 
in these times. If you have a work force where everybody is 
campaigning on taxpayer money, that is not a good use of the 
taxpayer money, and taxpayers have a right to expect that 
Federal workers, while they're in a building, in a Federal 
building and on duty are doing the taxpayers' functions rather 
than an electoral function.
    Mr. Sarbanes. And the law only prohibits political activity 
when an employee is acting in an official capacity or in the 
Federal workplace, correct?
    Mr. Kerner. That's correct.
    Mr. Sarbanes. If the Hatch Act was not in place, could it 
lead to taxpayers who call the IRS or senior citizens who 
contact the Medicare hotline being faced with someone on the 
other end of the phone who is trying to convince them to vote 
for a particular candidate? That could happen, couldn't it?
    Mr. Kerner. Yes. We've had a case like that where someone 
did call the IRS, and the IRS employee showed his support for a 
Presidential candidate.
    Mr. Sarbanes. There's also the danger that allowing Federal 
employees to advocate for political campaigns while on duty 
would undermine the public's confidence that the government is 
actually doing its job. Do you agree?
    Mr. Kerner. Yes.
    Mr. Sarbanes. Since we're talking about an advisor to the 
President, I think it would be helpful to put this specifically 
in the context of the White House. Most people realize that the 
President is associated with a particular political party, 
    Mr. Kerner. Yes.
    Mr. Sarbanes. I think most people also understand that the 
President's most senior advisors are also from the President's 
political party, typically. Most people want to believe, 
however, that once the President is in office, he or she will 
endeavor to act in the best interest of the country and not 
just a specific political party.
    In other words, once you enter the office, you're supposed 
to, in a sense, elevate yourself when you can, and certainly 
when you're exercising your official duties, to a place of 
being above partisanship. Senior aides to the President, 
particularly those who speak on behalf of the White House, are 
the face of the President and the administration. And you've 
made that point here today.
    Do you believe that when Kellyanne Conway uses her official 
platform as a spokesperson for the White House to criticize 
President Trump's political opponents, that it may erode public 
confidence in the Presidency itself?
    Mr. Kerner. I believe that when--well, first of all, it's a 
violation of the law, so she just can't do it for that reason. 
I don't know if it erodes confidence in the Presidency. I think 
the Presidency is viewed as more partisan. I think there's a 
reason why the President and the Vice President are exempt from 
the Hatch Act.
    But I do think that when Ms. Conway speaks on behalf of the 
President, official authority, she's required by law to stay 
away from those political partisan comments, and I think that's 
    Mr. Sarbanes. One of the purposes of the Hatch Act is also 
to protect Federal employees from being forced into engaging in 
partisan political work while they're on duty. I understand 
that Ms. Conway gave her own press interviews and I assume 
wrote her own tweets.
    Are you concerned that behavior like Kellyanne Conway's 
could discourage public servants from coming into government 
service if they believe their job will be campaigning for the 
    Mr. Kerner. Yes. I am a big believer in the depoliticized 
Federal work force. I think when people join the Federal work 
force, they do so out of a commitment to public service, and 
that should be for all Americans regardless of political 
    Mr. Sarbanes. Thank you. I just--as I'm closing, I want to 
emphasize, again, that I see this through two lenses. One is 
absolutely that the Hatch Act is there to protect Federal 
employees. But I think it's also there to enforce the kind of 
separation from politics and these official offices that people 
hold that the country has a right to expect. And it brings 
credit when you observe those lines to those offices, and it 
potentially can discredit them when you don't observe the 
    And the President, I think, must act to protect the 
integrity of the Federal work force to police that boundary 
that I've just spoken of. And for that reason, he needs to fire 
Kellyanne Conway.
    I yield back my time.
    Chairman Cummings. Mr. Comer.
    Mr. Comer. Mr. Chairman, I will have to admit, when I saw 
the agenda for the program today, I didn't think that anything 
productive would come out of this hearing, but I was wrong. 
There have been two productive things, in my opinion, that have 
come out of this hearing thus far.
    First is there's universal unclarity about what the Hatch 
Act is and what it does and what congressional intent was with 
the Hatch Act. And, second, there was a pledge of 
bipartisanship between Representative Khanna, Meadows, and 
Raskin to try to come up with a solution to better define what 
the Hatch Act is, does, as we move forward.
    So I just wanted to make that public, Mr. Chairman. So I 
appreciate you having this hearing.
    Mr. Kerner, you said under oath that a Federal employee can 
say factual things. Is that correct?
    Mr. Kerner. No, I did not. Whether something is factual or 
not isn't the test. The test is whether they use their official 
authority to talk about things related to the campaigns. It 
could be absolutely factual, it could even be true, but if it's 
related to influencing a partisan campaign, under their 
official authority they're not allowed to talk about that.
    Mr. Comer. One of the alleged violations that you allege 
Kellyanne Conway committed with the Hatch Act was that she re-
tweeted on Twitter a post about Senator Elizabeth Warren 
claiming that she was Native American to score a Harvard gig 
paying $350,000 to teach one class.
    Is that, sir, your definition of a violation of the Hatch--
well, first of all, is that factual or not?
    Mr. Kerner. I don't know if it's factual. I mean, Senator 
Warren has denied it, so I don't know if it's factual.
    Mr. Raskin. Mr. Chairman, point of order.
    Chairman Cummings. Yes.
    Mr. Raskin. If a false statement has been made at the 
hearing about a fellow Member of Congress, can it be corrected? 
Because I'd be happy to correct it.
    Chairman Cummings. Yes.
    Mr. Raskin. There is an article in The Boston Globe by 
Annie Linskey which refutes precisely that proposition that 
somehow Senator Warren lied about a recommendation.
    Chairman Cummings. Wait, wait, wait. I thought you said at 
the end?
    Mr. Raskin. Oh, sorry. Happy to do that.
    Mr. Meadows. A point of order actually has to stay the 
    Mr. Raskin. I believe the rule--I believe that the rule 
states that we cannot disparage and defame other Members of 
    Mr. Comer. I did not disparage another Member of Congress. 
I'm reading one of the violations that they claim. This is a 
very serious hearing when you're ruling that someone--and you, 
each member on the Democrat side just about has said that 
Kellyanne Conway should be fired. I'm reading one of the 
allegations that you claim she violated in the Hatch Act.
    I didn't say anything disparaging about Senator Warren. I 
asked if that was factual or not. I take offense to that, and, 
Mr. Chairman, I'd like to strike that from the record, what Mr. 
    Chairman Cummings. Without objection.
    All right. Let's go on.
    Mr. Comer. Thank you.
    Mr. Kerner, we go back to the--this is your interpretation 
of the Hatch Act. When she was on the Ingraham Angle show, 
which I've been on a few times and many on this committee have 
been on, again, she was asked about Elizabeth Warren's claims 
of her Native American ethnicity, and she answered the 
    Explain to me how that is a violation of the Hatch Act that 
would warrant her termination from a job that many of us think 
she does very well.
    Mr. Kerner. Sure. And just to explain too, when we talk 
termination, it sounds like we or somebody wants to deprive the 
President from having an effective spokesperson. That's really 
not what we're talking about. We're talking about having a 
Federal employee abide by laws that apply to Federal employees.
    So obviously, there are solutions short of her 
disappearing. She can go to the campaign. She can speak in her 
private capacity. There are other ways for Ms. Conway to make 
all the points on behalf of the President that we in no way 
want to silence. So I just want to make that clear.
    And then as to your specific question, when she talks about 
Senator Warren and the alleged claims about her heritage and 
how it might have affected it, when she talks about that, it's 
not the veracity of it that matters; it's that they're not 
related to a policy. They're related to her as a candidate. And 
why that would----
    Mr. Comer. You know, my opinion, my interpretation of what 
you just said, if you misrepresent your race in order to take 
advantage of affirmative action laws, that is a serious issue. 
I don't think that's a unique Presidential partisan issue to 
point, in general. I mean, it's a--if she was asked the 
question, she answered the question to the best of her 
knowledge factually, and in my opinion, you know, what I read, 
that has the potential to be factual.
    But I think that we need to examine the Hatch Act moving 
forward. I'm glad that we've had some production here to where 
we can, in a bipartisan way, figure out the correct intent of 
the Hatch Act as we move forward, to where we don't create a 
scenario where someone who's doing her job, and, you know, her 
reputation is tarnished because of a misunderstanding of the 
Hatch Act.
    Mr. Chairman, I yield back.
    Chairman Cummings. Thank you very much.
    Ms. Ocasio-Cortez.
    Ms. Ocasio-Cortez. Thank you, Mr. Chair.
    You know, there's been a lot of comments made about the 
ambiguity of the Hatch Act, which I think is overall quite 
clear in it's intent in saying we cannot use our official 
government capacities for partisan political purposes. That's a 
pretty clear line. And if there's any question about that, we 
    And, in fact, I think that the proof of the clarity of the 
Hatch Act comes in what just happened earlier this year in the 
largest government shutdown in American history, because we had 
800,000 Federal workers, from air traffic controllers to far 
beyond, Federal employees at the State Department here, 800,000 
workers who are all subject to that same Hatch Act, and they 
knew what the rule was.
    They weren't getting paychecks. They used up their entire 
life savings. They were struggling to pay their mortgages. They 
couldn't feed their kids, and they still didn't say anything. 
They still didn't engage in political organizing against the 
people who were committing this against them because they 
understood the law.
    Beyond that, you said in your opening statement, correct, 
that even Sarah Huckabee Sanders acknowledges the--in her work 
she acknowledges the bars in the Hatch Act, correct?
    Mr. Kerner. Yes, that's correct, Congresswoman.
    Ms. Ocasio-Cortez. Okay. So we have many members of the 
President's own administration who honor the law and respect 
the law. The violations here, to the extent and the 
repetitiveness to which they are being committed, is unique to 
Ms. Conway, correct?
    Mr. Kerner. Yes.
    Ms. Ocasio-Cortez. Okay. And with that, I would like to 
show you all a video that highlights many of the violations 
that the Office of Special Counsel detailed in its report.
    [Video shown.]
    Ms. Ocasio-Cortez. So, Mr. Kerner, I want to walk through 
some of the specific Hatch Act violations that OSC found that 
Kellyanne Conway committed.
    On November 20, she gave an interview with Fox & Friends, 
in which she called the Democratic Senate candidate Doug Jones 
a, quote, doctrinaire liberal. This was a Hatch Act violation, 
    Mr. Kerner. That was in our first report, correct.
    Ms. Ocasio-Cortez. And on December 6, 2017, Ms. Conway 
appeared in her official capacity on CNN and discussed why 
voters should support Republican Senate candidate Roy Moore and 
why they should not support Democratic candidate Doug Jones. 
OSC then sent President Trump a report detailing these 
violations, but you did not recommend a specific form of 
discipline, you left that up to the President, correct?
    Mr. Kerner. Correct. Correct.
    Ms. Ocasio-Cortez. The President appears to have done 
nothing about this, and Ms. Conway continued to violate the 
law. OSC found that between October 31 and November 6, Ms. 
Conway posted at least 15 messages that violated the Hatch Act 
to her Twitter account.
    Are you aware of any other senior aide to a President who 
has systematically violated the Hatch Act to this extent by 
attacking the potential opponents of the President?
    Mr. Kerner. I am not aware.
    Ms. Ocasio-Cortez. And I think this right here gets at the 
core of what we're talking about today, is that this is not 
even partisan, because members of Trump's own administration do 
not violate the law, this law, to the extent that she does. She 
is being subject to these reports because she is unique in her 
flagrant violation and disrespect for the law.
    And, frankly, when she doesn't show up to her own 
congressional hearing today, she's not just disrespecting 
Democrats--I don't mind, that's something that she does on TV 
every day--she disrespects the entire body. She disrespects 
every Republican Member of this body, and disrespects the power 
that each and every single one of us has. And, moreover, I 
think that this taps into a deeper narrative and a deeper 
pattern of what is happening out of this administration where 
they believe that the rule of law only belongs and applies to 
some people and not others.
    Right here and now, we're about 20 years away from the 
Central Park Five, where the President put out a full page ad 
demanding the death penalty for five Black and brown boys. 
Boys. They were not yet 18 years old, demanding the death 
penalty for something they were accused of and innocent of.
    And here we have just documented evidence of multiple times 
of violation of the same law, and he won't even issue a slap on 
the wrist. This is a pattern about some people being subject to 
the rule of law and others not. And when that happens, there is 
no rule of law at all. At all. And that's why it's important 
that we make sure that everyone is held accountable, because 
whether it's a billionaire, whether it's an administration 
official, or whether it's a postal worker, or a kid on the 
street, we all must be held accountable to the same extent by 
the rule of law.
    Thank you very much.
    Chairman Cummings. Thank you very much.
    Mr. Cloud. Mr. Cloud.
    Mr. Cloud. Thank you, Mr. Chair.
    You refer to normal Federal employee hours for a Federal 
worker, nine to six, eight to five, give or take?
    Mr. Kerner. I think Congressman Massie asked me about those 
hours. But as I tried to explain, they don't really impact on 
this violation.
    Mr. Cloud. Would you say that as counselor to the 
President, Kellyanne Conway's duties, quote, continue outside 
the normal duty hours and away from the normal duty post?
    Mr. Kerner. Yes.
    Mr. Cloud. Would you list any cost associated with the 
alleged political activity by Kellyanne Conway that were paid 
for out of the U.S. Treasury?
    Mr. Kerner. Would I list them?
    Mr. Cloud. Yes.
    Mr. Kerner. I'm not sure what list means. But is she paid 
by those, is that what you mean?
    Mr. Cloud. The alleged political activity, can you trace it 
back to any funds paid out of the U.S. Treasury for each act?
    Mr. Kerner. No.
    Mr. Cloud. Do you have a list of that?
    Mr. Kerner. Right. So, no, but that provision only goes to 
the on-duty rules----
    Mr. Cloud. Is Kellyanne Conway paid for using appropriated 
funds from the Executive Office of the President?
    Mr. Kerner. I believe so, yes.
    Mr. Cloud. Okay. 5 U.S.C. Section 7324 allows employees who 
are paid using appropriated funds from the Executive Office of 
the President whose duties continue outside the normal duty 
hours and while away from the normal duty post to engage in 
political activities prohibited under the Hatch Act, quote, if 
the costs associated with that political activity are not paid 
for by money derived from the Treasury.
    Are Post Office employees paid out of the Executive Office 
of the President?
    Mr. Kerner. I don't believe so.
    Mr. Cloud. Okay. They're not. So we're not really comparing 
apples to apples here when we paint Federal employees with a 
broad brush?
    Mr. Kerner. But I think you're talking about the same 
provision that Mr. Meadows was talking about, and that 
provision doesn't cover the official duty--the official 
authority restriction.
    Mr. Cloud. Reclaiming my time. The purpose of the Act--
according to the Office of Special Counsel overview of the 
Hatch Act on the website says that the purpose of this Act was 
to ensure that Federal programs are administered in a 
nonpartisan manner, to protect Federal employees from political 
coercion in the workplace, and to ensure that Federal employees 
are advanced based on merit and not on political affiliation.
    Do you stand by that definition on the purpose of this Act?
    Mr. Kerner. Sure.
    Mr. Cloud. Okay. Could you list the Federal programs 
administered by Kellyanne Conway?
    Mr. Kerner. Well, I mean, she has a portfolio in the White 
House. I don't know----
    Mr. Cloud. Does she administer any Federal programs, that 
you're aware of?
    Mr. Kerner. I mean, like I said, she has a portfolio. I 
don't think she administers anything----
    Mr. Cloud. How many Federal employees report to Kellyanne 
    Mr. Kerner. I actually don't--I don't know.
    Mr. Cloud. Okay. You mentioned a number of political 
organizations that filed complaints against her. Were any of 
these employees that report to her?
    Mr. Kerner. Not that I'm aware of, no.
    Mr. Cloud. Okay. Thank you.
    I yield my time to the ranking member.
    Mr. Jordan. Mr. Kerner, in the opening paragraph of your 
letter to the President June 13, the last sentence you said: 
Her actions erode the principal foundation of our democratic 
system--the rule of law.
    Her actions erode the principal foundation of our 
democratic system. You really believe that?
    Mr. Kerner. Yes, I do.
    Mr. Jordan. When she said Senator Biden and Senator Sanders 
are too old white career politicians, how does that erode the 
principal foundation of our democratic system?
    Mr. Kerner. It's not the content of what she says. What 
happens is she's using her official authority----
    Mr. Jordan. But that's not what--you said you think that 
erodes the democratic system?
    Mr. Kerner. I think her failure to follow the Hatch Act 
erodes our system, yes.
    Mr. Jordan. When she said 28 million Americans are without 
healthcare 9 years after Obama-Biden care passed, you think 
that erodes the principal foundation of our democratic system.
    Mr. Kerner. I think her failure to follow the Hatch Act and 
to then announce that she's--essentially doesn't care, frankly, 
I think does, because it shows that the rule of law only 
applies to the little people. That people are connected--well-
connected do not have to have--don't have to comply with the 
    Mr. Jordan. When she said about Senator Warren--when she 
said about Senator Warren she had zero sympathy for--she is 
quoting Senator Warren. Senator Warren said she had zero 
sympathy for parents caught in the college admission scam. And 
Ms. Conway said, I have zero sympathy for adults who lie that 
they are Native Americans to gain advantage.
    Do you think that undermines the principal foundation of 
our democratic system?
    Mr. Kerner. I'm not taking issue with any of her 
statements. She's entitled to make those, but not when she's 
speaking in her official authority. And when she does that and 
she knowingly violates the rule of law, I think it does 
undermine it.
    Mr. Jordan. When she's speaking in her capacity, in her 
official capacity and says 28 million Americans don't have 
healthcare, how does that violate the principal foundation of 
our democratic system? I actually think it helps it.
    I think it's someone stating a fact about one of the 
biggest pieces of legislation we've had in years around this 
place that did not work, and reinforces the First Amendment 
liberties we as every single American has. But, no, you in your 
letter say it undermines the principal foundation of our 
democratic system.
    Stating the truth undermines--actually, stating the truth 
is the foundation of being able to speak in a First Amendment 
way, is the foundation. And, unfortunately, we got way too many 
people who don't recognize that and are trying to limit First 
Amendment free speech rights.
    Chairman Cummings. All right. Let me say this. You know, 
I'm listening to all of this, and I got to tell you, I think we 
have gotten so far down the line, Mr. Kerner, that when there 
is--I mean, I'm just sitting here thinking about this. I mean, 
I practiced law for many years. And the idea that we would sit 
here and argue about violation of Federal law, that we've 
gotten that far down the road, it concerns me tremendously.
    And I think--and I'm not going to put words in your mouth. 
I've heard every syllable that has been said here, I have not 
moved. It seems to me that what you're talking about is the law 
itself. And probably the best thing that has been said is the--
was said by Mr. Comer and Mr. Khanna and Mr. Raskin. If there's 
some clarity that needs to be made, it needs to be made.
    But it concerns me that we've gotten so far from the basic 
principles of obedience to the law--of the law. I mean, I 
    Mr. Cloud. Will the chairman yield.
    Chairman Cummings. No, I will not yield.
    I mean, we've gotten to a point where it seems like it's 
normal, it's okay. Well, it's not okay. We do not teach our 
children to lie. We do not teach them to disobey--we do not 
teach them to disobey the law. And what we're trying to do--
we've got--I don't know what we're supposed to do.
    When we see somebody from your office that comes to us and 
says, or puts out in the universe, that somebody has basically 
thumbed their nose at the Congress, it's not just Democrats, 
it's all of us. And I think it does erode our democracy. I 
think it does take away from it.
    Mr. Cloud. Mr. Chairman, whose time are you speaking on?
    Chairman Cummings. Mine.
    Mr. Cloud. Point of information.
    Chairman Cummings. You're welcome.
    Mr. Cloud. Point of information.
    Chairman Cummings. Who am I talking to?
    Mr. Jordan. Mr. Cloud.
    Mr. Cloud. Has Ms. Conway been convicted of a crime? 
Because your statement seems to insinuate that it has. My 
understanding was that this is a discussion as to whether she 
has committed a crime.
    Chairman Cummings. That's exactly right. I'm talking about 
a general--I'm talking about generally, we are getting to a 
point where it seems that the whole idea of when we've been 
brought allegations in the past--let me just clarify something. 
You weren't on this committee, but I can tell you--buddy, let 
me tell you.
    Mr. Cloud. I was not here in the past, I'll admit that.
    Chairman Cummings. I'm sorry?
    Mr. Cloud. I was not here for any past discussions.
    Chairman Cummings. I can tell you, this would be--it would 
be holy hell in here, all right. So I just wanted to make that 
observation, that's all. We're better than this, as Mr. Meadows 
has stolen my phrase again, but----
    Mr. Meadows. It was a good one, Mr. Chairman.
    Chairman Cummings. Ms. Tlaib.
    Ms. Tlaib. Thank you so much, Mr. Chairman.
    You know, no one reports to Ms. Conway, probably, and she 
doesn't run any Federal programs because she's campaigning on 
taxpayer dollars.
    Are you aware she gets paid $179,700?
    Mr. Kerner. I think that's the maximum.
    Ms. Tlaib. Yes. Mr. Kerner, under the Hatch Act, a Federal 
employee may not engage in political actively while on duty, 
or, and I quote, in any room or building occupied in the 
discharge of official duties by an individual employed or 
holding office in the Government of the United States.
    Does that basically mean the grounds of any Federal 
building, government building?
    Mr. Kerner. Yes, but that's also the provision that doesn't 
apply to her.
    Ms. Tlaib. Okay. Does it include grounds of the White 
House? Does it apply to her?
    Mr. Kerner. Yes.
    Ms. Tlaib. Why is it important that Federal employees do 
not engage in political activity while they are on grounds of a 
Federal building?
    Mr. Kerner. Yes, that's exactly the issue we talked about 
earlier. If we're going to have a depoliticized work force, we 
can't have people running around campaigning all day long while 
they're supposed to be doing----
    Ms. Tlaib. On taxpayer dollars?
    Mr. Kerner. Correct.
    Ms. Tlaib. Yep. OSC found that on multiple occasions 
Kellyanne Conway engaged in political activity during press 
interviews on White House grounds. Is that correct?
    Mr. Kerner. Yes. Using her official authority, yes.
    Ms. Tlaib. And I hate wanting to go through the clip, but 
we got to go. So there's a clip, an interview on April 24, 
2019, that I'd like to show my colleagues.
    [Video shown.]
    Ms. Tlaib. Mr. Kerner, based on that video, do you agree 
that Ms. Conway appears to be on White House grounds when she's 
making that statement?
    Mr. Kerner. It does appear that way, yes.
    Ms. Tlaib. Was she campaigning?
    Mr. Kerner. It seems--I believe this was one of the 
violations we found in our report.
    Ms. Tlaib. OSC noted that in a report released June 13 that 
Conway, quote, appeared in front of the White House.
    Mr. Kerner, the news clip also identified Ms. Conway as, 
quote, a counselor to President Trump, correct?
    Mr. Kerner. Yes. Counselor to the President, correct.
    Ms. Tlaib. When you see the text in the news clip with the 
title counselor of the President of the United States, is that 
factor that supports that Ms. Conway is speaking in her 
official capacity?
    Mr. Kerner. Yes, it does.
    Ms. Tlaib. OSC found that this interview violated the Hatch 
Act, correct?
    Mr. Kerner. I believe so, yes.
    Ms. Tlaib. Can you explain what it was about Ms. Conway's 
comments during this interview that violated the Hatch Act?
    Mr. Kerner. Yes. So the description was about existing 
Democratic Presidential candidates. It wasn't talking about a 
policy, it wasn't talking about anything other than them 
personally, and she was on White House grounds. OSC has found 
that she was using her official authority to talk about 
election-related incidents, which she's not supposed to be 
    Ms. Tlaib. And it's obvious that Ms. Conway was willfully 
and openly disregarding the law on Federal premises in public 
    Do you believe that Ms. Conway has any intention of ever 
complying with the rule of law or following the directions 
regarding the Hatch Act?
    Mr. Kerner. I'm an optimist, so I remain optimistic that 
she will.
    Ms. Tlaib. And, Mr. Chairman, if I may, if there's a lot of 
disagreements about how the Hatch Act is implemented here, how 
it's applied to Ms. Conway, then the members of this body can 
change it. They can propose laws to change it.
    He is applying the law as it exists to a person on taxpayer 
dollars campaigning for the President of the United States.
    And, Mr. Chairman, I would urge the President to allow Ms. 
Conway to either resign or fire her and then hire her on the 
campaign side, where she obviously belongs, not working on 
behalf of the American people.
    I yield the rest of my time.
    Mr. Meadows. Ms. Tlaib, would you yield for----
    Ms. Tlaib. No. No, Mr. Meadows, I yield the rest of my time 
to the chairman.
    Mr. Meadows. It was a nice comment.
    Ms. Tlaib. I know, I understand. And, you know, I have to 
say something, Mr. Meadows. You know, I am new here, and one of 
the things that is very obvious to me, and I'm also an 
attorney, and I can tell you, if I ever want to hire a defense 
team, I know exactly where to go, especially if I've, you know, 
allegedly committed a crime.
    It is so absurd, and the chairman is correct. You know, 
sometimes I don't ask any of my clients whether they're 
Democrat or Republican. I ask, you know, what were the actions, 
whether or not to play. And sometimes I urge them to comply 
when they're in violation of the law, and I work it out.
    But in this instance, we're allowing the American people to 
see it's okay to normalize the fact that a person that's being 
paid close to $200,000 of our money to campaign on our dime, on 
our money and our time, where she's supposed to go advise on 
    You know, I, in this chamber right here, in this body, I'm 
not allowed to specifically say something about a colleague in 
this chamber. I can say certain acts or certain things. I can 
talk about certain policies. And the chairman has been so 
patient with me in teaching me that process, and I abide by 
those rules.
    But it's so absurd that we sit here and watch over and over 
again somebody that we're paying on government dime to go on 
national TV to campaign and talk about other candidates. It's 
just wrong.
    Chairman Cummings. Mr. Gibbs.
    Mr. Gibbs. Thank you, Mr. Chairman.
    Thank you for being here, Mr. Kerner. I'm wondering on 
the--so I understand this better on policy versus campaigning. 
So if a person, in this case, Ms. Kellyanne Conway, is out 
doing an interview and a reporter asks her a specific question 
that's policy and she answers it. But the reporter asks a 
question, asks something like, Bernie Sanders, blah, blah, 
blah, this, and it's policy, and she's answering the question, 
Bernie Sanders. Would that be okay?
    Mr. Kerner. I think generally, yes. Obviously, there's 
always a case by case, you know, investigation. The 
professionals do these cases when they, you know, both in an--
advisory opinions as well as when we get complaints. They'd 
have to look at all the circumstances. It's a very fact-
intensive thing.
    Mr. Gibbs. So your entity--you're in an advisory capacity, 
you offer the advisory opinion. So it's an opinion, correct?
    Mr. Kerner. Correct.
    Mr. Gibbs. Okay. And when you have a senior policy advisor 
to the President working in the White House, obviously--I don't 
think--did she ever go out and say, vote for Trump, or don't 
vote against Biden or Sanders?
    Mr. Kerner. Well, I don't believe so.
    Mr. Gibbs. Because that would be--I think that would be a 
violation. But when you got--tying policy to it, and she's a 
senior policy advisor, I think there should be a little leeway 
    And then I'm a little concerned. Some of the clips have 
been played, some maybe were at the White House, it appears it 
was, and some weren't, and some were late at night--later in 
the evening, but I don't know all the context was, you know, 
how that came up if it was policy and she was answering.
    And also, is there any waiver provisions for senior White 
House advisors for the Hatch Act?
    Mr. Kerner. Waiving the Hatch Act entirely? I don't believe 
    Mr. Gibbs. Okay.
    Mr. Kerner. Waivers of other guidelines, but they 
specifically exclude the Hatch Act, so you're not waived. Now, 
the provision that Mr. Meadows has cited does set up a system 
where she's not bound by the on-duty prohibitions. So she can 
engage in various political activities on duty, but they still 
have to be permissible. And using her official authority to do 
the campaign work is not permissible, so she can't do that.
    Mr. Gibbs. I'll yield the balance of my time to Mr. 
    Mr. Meadows. I thank the gentleman.
    So, Mr. Kerner, let me come back, because here is what I 
would like for you to get to this committee. In your response 
to the White House General Counsel, you didn't put any 
notations as to the possibility of a waiver. And so I'd ask 
your team to go back and address the waiver, because it's an 
open question that, quite frankly, I think demands an answer.
    CRS, which is not a partisan entity, is actually indicating 
that the waiver does apply to Ms. Conway. And so when we have 
that--so we've got two different things, and so I would ask 
that you do that.
    Mr. Kerner. We will do that.
    Mr. Meadows. Earlier, you talked about how Josh Earnest and 
Ms. Conway are different because you, in May 2016, I guess, 
gave a report and he never did it again. That was your 
    Mr. Kerner. Right. Obviously, once again, that----
    Mr. Meadows. But that's not correct. I mean, obviously, you 
did that. And so I ask unanimous consent that we put in--
because on October 2016, you know, at the White House briefing, 
he says, so you're telling me that candidates who snorted their 
way through two debates--he's accusing other candidates of 
taking drugs.
    Now, I think it's very clear in the context of everything 
that you laid out that Mr. Josh Earnest, once again, was 
violating, according to you, the Hatch Act.
    Mr. Kerner. Uh-huh.
    Mr. Meadows. And so to suggest that he stopped it once that 
you--you know, the OSC actually outlined it, it's just not 
accurate. So I would ask you to go back and review that.
    Mr. Kerner. Well, just to clarify. On May 4, 2016, OSC, 
prior to my arrival, sent a letter to Mr. Earnest----
    Mr. Meadows. Right. Right.
    Mr. Kerner [continuing]. where they said what I testified 
to earlier, which was, during our investigation, we learned 
that on or about April 6, you were counseled, and a review of 
all the press briefings between April 6 and April 29 did not 
reveal any new violation, thus, although we have concluded you 
violated the Hatch Act, we have decided not to pursue 
disciplinary action and are closing the file with basically a 
    Mr. Meadows. Right. But your comment would suggest that he 
didn't violate it. And what I'm saying, in his press briefing 
in October following that timeframe, he had violated it again 
and yet he got a free pass. And so it's the two standards. 
That's what I'm asking you to do.
    Mr. Kerner. Okay.
    Mr. Meadows. And the last questions I have.
    At what point did Ms. Kellyanne Conway's personal twitter 
become official? And at what point will Kellyanne Conway's 
personal twitter that you now deem official go back to being 
personal? I need to know the red line.
    Chairman Cummings. The gentleman's time is expired. You may 
answer the question. Members, we got a 1:30 vote. I don't want 
to come back after the vote.
    Mr. Meadows. We're having so much fun.
    Chairman Cummings. Well, wait a minute, man. I'm just 
trying to make you aware. We have a 1--I'm just making, as a 
courtesy, making the committee aware that we have a 1:30 vote. 
And I'm saying that we will finish the hearing. But I'm not 
anxious to come back whenever that is to keep this hearing 
    So I'd just ask you all to take that into consideration. 
You may answer the question.
    Mr. Kerner. I'll do very briefly.
    Just on your point, on Josh Ernest, apparently we closed 
the case after the--with the warning letter. From what I 
understand, once again, I wasn't there, I was told by the Hatch 
Act unit they did not receive a subsequent complaint about the 
incident you talked about. Most of the time we investigate 
cases, though, we get complaints on. If none is received, 
there's no investigation.
    As for your other question, we are certainly willing to--at 
some point, when we do an investigation, the Hatch Act unit 
looks at the Twitter account. And at that point in time, they 
try to determine whether it's an official account or not.
    Mr. Meadows. I just need, if we're going to follow the law, 
when does it stop and when does it start? I mean----
    Chairman Cummings. Will you provide him with that 
information, please?
    Mr. Kerner. Sure.
    Chairman Cummings. Okay.
    Mr. Kerner. Of course.
    Chairman Cummings. Now, Ms. Plaskett. Ms. Plaskett. Yes, 
you're recognized.
    Ms. Plaskett. Thank you, Mr. Chair.
    I've been sitting here listening for a while. And the first 
thing I'd like to say for my colleagues that are still here in 
the room is an observation about this committee. I've been on 
this committee now--this is my third term here. And I would 
really hope that my colleagues would remember the respect for 
the chair. And when the chair says rules or puts down the 
gavel, to respect that as Members of Congress being gentlemen 
and women of this body, because we are grown, and we need to 
keep our emotions and our actions in check while we are in this 
room. That's just a plea and an admonition of my colleagues.
    Mr. Kerner, I wanted to ask you a couple of things.
    You said that you were not in this office previously. And 
there's been some discussion about the Obama Administration. I 
understand that you weren't counsel during there. But the OSC 
did not recommend that President Obama fire Secretary Sebelius 
or Secretary Castro but did recommend that President Trump fire 
Kellyanne Conway. OSC did not give a specific recommendation 
for discipline in its first report to President Trump about 
Kellyanne Conway; is that correct?
    Mr. Kerner. Just appropriate discipline from the statute, 
    Ms. Plaskett. And initially Conway was treated just the 
same as other officials. The difference is now that Conway 
refuses to change her behavior, and President Trump refuses to 
discipline her; is that correct?
    Mr. Kerner. Yes. That's correct.
    Ms. Plaskett. And your motivation in having this is because 
you're doing your job; is that correct?
    Mr. Kerner. Yes. That's correct.
    Ms. Plaskett. The job the President appointed you to?
    Mr. Kerner. Correct.
    Ms. Plaskett. And the fact that this President, President 
Trump, appointed you to this position means that it's a little 
uncomfortable for you to be disciplining or recommending this 
of your own side; is that not correct?
    Mr. Kerner. To tell you the truth, I don't feel like I 
really have a side at this point. I'm an independent agency 
head. I try to be as nonpartisan as possible.
    Ms. Plaskett. So that's interesting, because I've been in 
your position. I was counsel on the House Ethics Committee 
where we had to be nonpartisan during the time that we were 
there. We had Members on both sides of the aisle. And you have 
to act in that manner afterwards. I actually went and worked in 
the Bush Administration, the Justice Department. But the time 
that you're there, you act in a manner that's nonpartisan.
    So in doing that, and because you are in that position now, 
do you believe that Ms. Conway has, in fact, violated the law?
    Mr. Kerner. Absolutely.
    Ms. Plaskett. And if an individual allows her not to face 
those charges, are they, in some respect, aiding and abetting 
that individual in--continuing to be in violation of the law?
    Mr. Kerner. You know, as a former criminal prosecutor, I 
would stay away from aiding and abetting. I think that sounds 
more like a criminal case.
    Ms. Plaskett. But some of these are referred to----
    Mr. Kerner. Yes.
    Ms. Plaskett [continuing]. for criminal prosecution, are 
they not?
    Mr. Kerner. Absolutely.
    Ms. Plaskett. Because if it were referred to criminal 
prosecution because she did not, in fact, change her behavior, 
had been advised, put on notice that she was, in fact, 
violating the law, an individual who continues to support her 
in violating that would, in fact, be aiding and abetting in 
some respect?
    Mr. Kerner. I think under the statute the President is 
entitled to impose the discipline. That's part of the statute. 
So the President's choice and what discipline he imposes is 
really up to him.
    Ms. Plaskett. But if a President does not--a President can 
impose the punishment. But if a President tells the person to 
continue to violate the law, that is not what the President has 
been allowed to do under the law, is it not?
    Mr. Kerner. Yes. I don't know that that's happening here. 
But, yes, the President shouldn't tell anyone----
    Ms. Plaskett. So the President has not told her that she--
that this law does not apply to her and that we are, in fact, 
violating her free speech and so that she can continue doing 
and saying what she has done?
    Mr. Kerner. I do believe the White House counsel has taken 
that position.
    Ms. Plaskett. And the White House counsel is appointed by 
    Mr. Kerner. They work for the President.
    Ms. Plaskett. For the President of the United States.
    Mr. Kerner. That's correct.
    Ms. Plaskett. So the President has de facto allowed this 
individual, Kellyanne Conway, to continue to violate the law by 
doing this. Because the--let's not get caught up in this 
ambiguity, the discussion of Mr. Meadows and Mr. Raskin, about 
let's come together in a bipartisan manner to fix this, because 
it's not clear. If she was not clear, you've given her 
opportunity to come and sit with you and to discuss what that 
ambiguity is, have you not?
    Mr. Kerner. Absolutely.
    Ms. Plaskett. And she has not followed that advice or 
sought that counsel from you, has she?
    Mr. Kerner. She has not.
    Ms. Plaskett. So let's--in the letter that you've given, 
you state in there: The Congress passed the Hatch Act to 
recognize the inevitability that senior advisers to the 
President, such as Ms. Conway, were involved in campaign 
    And then later you say: Or they could use their positions 
to secure television interviews. And rather than focus 
exclusively on the work of the administration, use that 
platform to gauge in partisan attacks against political 
    So when the communication that they're using with the 
public is by whatever device, be it television, Twitter 
account, Facebook account, they're communicating with the 
public. And they're supposed to do it on policy, and they are 
not. And since I'm not objective--since I do not have the Hatch 
Act which allows me to say and do whatever I want, I want to 
say that what's going on is, in fact, a hot mess.
    Chairman Cummings. Indeed.
    The gentlelady's time is expired.
    Mr. Higgins.
    Mr. Higgins. Thank you, Mr. Chairman.
    So I hope America is paying attention. So Ms. Kellyanne 
Conway is the current targeted Trump administration employee. 
But there'll be another. There'll be another next week or the 
following or the following. The future of this committee has 
been made clear. One attack after another against the 
President. Here we go again. Another oversight hearing. Another 
attack on the President's administration.
    My colleagues say no one is above the law. The President 
refuses to discipline. The President refuses to hold Ms. Conway 
accountable. My colleague says worse it's the worst. It's the 
worse. I'll tell you what's worse. Michael Cohen lying six 
times to this committee after being warned with grim authority 
that if he lied once he'd be nailed to the cross. That was 119 
days ago; 119 days of above the law, 119 days of worse, 119 
days of refusal to hold accountable.
    Ms. Conway had 16 hours to respond to the hurt feelings of 
Mr. Kerner, 119 days, and no action from Michael Cohen versus 
16 hours and a subpoena for Kellyanne Conway. America 
recognizes persecution when it sees one.
    Today's hearing was never a fact finding mission nor an 
honest investigation into Federal employee conduct. It's simply 
one in a series which will continue of hearings meant to 
discredit the President.
    Like it or not, Federal law limits the authority of the 
Office of Special Counsel. In fact, OSC cannot charge any 
Senate confirmed employee or employees of the executive office 
of the President. Yet OSC has moved straight past formal 
charges and recommended a sentence.
    One of my colleagues said you didn't recommend she was 
fired. You put on the first page of your letter: Therefore, OSC 
respectfully requests that Ms. Conway be held to the same 
standards as all other Federal employees. I'll get to that in a 
second. And as such, you find removal from Federal service to 
be appropriate disciplinary action. It sounds like recommending 
to fire to me.
    The Hatch Act was not intended to limit free speech. It was 
intended to keep bureaucrats from campaigning on the taxpayers' 
dime. But this is what most Americans don't know watching this. 
Listen to me. They don't know that Congress is not subject to 
this law.
    To ensure fair and consistent application of Federal laws, 
I have a draft bill to include employees of Congress under the 
requirements of the Hatch Act. Mr. Chairman, I ask unanimous 
consent that this draft bill be entered into the record.
    Chairman Cummings. Without objection, so ordered.
    Mr. Higgins. Let us no longer our staff to advocate on our 
behalf. Let us not allow them to share with constituents our 
views on politics or policy or contrast the damning views of 
our opponents with our own. congressional employees, some will 
say, oh, well, we're governed by the House and Senate ethics 
rules, ethics rules that we determine in every Congress every 
two years. It's a moving target. And who enforces those rules? 
We do. We're going to hold Ms. Conway and any employee of the 
Trump administration, because he's President Trump, to a very 
high standard of accountability. I suggest it's time Congress 
be held to that same standard.
    And I yield the balance of my time respectfully to the 
ranking member.
    Mr. Jordan. I thank the gentleman for his remarks.
    I would yield to the gentleman from North Carolina.
    Mr. Meadows. I thank the gentleman.
    So, Mr. Kerner, let me come back, because one of the issues 
that we started on early on was that you were not personally 
offended, I guess is what you said. When Ms. Kellyanne Conway 
did all of this, that it didn't make you mad; is that correct?
    Mr. Kerner. I think I didn't understand your context of the 
    Mr. Meadows. Well, you've told staff here that you were 
upset. You told the White House counsel that you were 
personally offended; is that true?
    Mr. Kerner. Yes, I believe that's true.
    Mr. Meadows. All right. Thank you. I'm glad we cleared that 
    How much does Kellyanne Conway owe the Federal Government?
    Mr. Kerner. How much does she owe the Federal Government?
    Mr. Meadows. Yes. I mean, you're saying that she's in 
violation of this Federal law. I mean, Ms. Sebelius had to pay 
back money. How much does Kellyanne--to make this all right 
with an apology and paying back the Federal Government, how 
much does she have to may back the Federal Government?
    Mr. Kerner. Well, you know, Secretary Sebelius--the reason 
she had to pay money back is that she used official funds for a 
campaign visit.
    Mr. Meadows. Sow what you're saying is that Kellyanne 
doesn't owe the government any money is what you're telling.
    Mr. Kerner. I think our case with Kellyanne Conway is 
concluded. We sent the report to the President, which is what 
the statute requires. The President exercises his discretion--
    Mr. Meadows. Yes or no. Does she owe money to the Federal 
    Mr. Kerner. Not that I know of.
    Mr. Meadows. Okay. Thank you.
    Chairman Cummings. Ms. Pressley.
    Ms. Pressley. Thank you, Mr. Chairman.
    Mr. Kerner, this committee has jurisdiction over the Hatch 
Act, and we take it very seriously. Given her absence here 
today, it is clear that Kellyanne Conway, a senior adviser in 
the White House, does not share that outlook nor does she take 
it seriously. It would appear that she, like the boss she 
serves, believes herself to be above the law. But she certainly 
is not. She certainly is not above the law. And the American 
people agree.
    I ask unanimous consent to include written testimony and a 
petition from Citizens for Responsibility and Ethics in 
Washington, which includes 30,000 signatures from people across 
the country, including dozens from my district, the 
Massachusetts 7th, asking for her termination.
    Chairman Cummings. Without objection, so ordered.
    [*Material not submitted.]
    Ms. Pressley. Before I move ahead, I did just want to speak 
to you--some comments that were made by my colleagues across 
the aisle just to clarify to the earlier point. CREW is a 
bipartisan organization. It includes two former Members of 
Congress on the board, so this isn't about partisanship. This 
is about ethics and the law. And you are correct. We will 
continue to be here and return here and have members of this 
cabinet and affiliated here as long as they are in violation of 
the law, because we are here to perform oversight and reform.
    Before I begin my formal line of questioning, I wanted to 
show you a clip of Ms. Conway's reaction to your independent 
report which found she violated the law dozens of times.
    [Video played.]
    Ms. Pressley. Mr. Kerner, what is your reaction to that 
    Mr. Kerner. Well, Mr. Meadows has been asking me about this 
clip all day.
    So what I was trying to convey was, obviously, I felt this 
was a--you know, a finger in the eye. I took professional 
umbrage. So as a head of an agency that enforces the Hatch Act, 
I was disappointed. That was my--really, one of my main 
emotions, because it just seemed clear that we were not going 
to get compliance from Ms. Conway through this process. And 
that was disappointing to me because one of my goals is to get 
people into compliance with the law.
    Ms. Pressley. And because Ms. Conway refused to testify 
here today and was a no-show, we cannot hear from her directly 
as to why she did what she did.
    Mr. Kerner, do you believe Ms. Conway is simply ignorant of 
the law and the rules about what she can and cannot do under 
the Hatch Act?
    Mr. Kerner. No, I do not.
    Ms. Pressley. Thank you. I agree.
    To your knowledge, do all White House officials receive 
training on the Hatch Act?
    Mr. Kerner. Yes, I believe they do.
    Ms. Pressley. Your report identified multiple instances 
where the Office of White House Counsel provided Hatch Act 
guidance to Ms. Conway.
    During 2017 alone, Ms. Conway received training or guidance 
on six separate occasions. Mr. Kerner, does that sound about 
    Mr. Kerner. Yes.
    Ms. Pressley. All right. So, for example, on January 24, 
2017, immediately after the inauguration of the occupant of the 
White House, Ms. Conway attended a senior staff ethics training 
that discussed the Hatch Act. On March 1, 2017, deputy House 
counsel, Stefan Passantino met individually with Ms. Conway to 
provide specialized Hatch Act training.
    Does every Federal employee get the benefit of 1-on-1 Hatch 
Act training?
    Mr. Kerner. No, I don't believe so.
    Ms. Pressley. Okay. In December 2017, the White House 
counsel sent an email to all White House employees with 
guidance on the use of official resources and official media 
accounts. That guidance said, and I quote: ``You may not use 
your official position to effect the results of an election,'' 
    So let me get this straight. Ms. Conway even violated the 
guidance the White House itself provided employees?
    Mr. Kerner. That's correct.
    Ms. Pressley. And yet Ms. Conway, despite receiving 
multiple forms of guidance and training both orally and written 
and in multiple settings, personal 1-on-1 training, she 
continued to violate the Hatch Act throughout 2018 and 2019; is 
that correct?
    Mr. Kerner. That's correct.
    Chairman Cummings. The gentlelady's time is expired.
    Ms. Pressley. Thank you.
    Chairman Cummings. Thank you very much.
    Mr. Grothman.
    Mr. Grothman. With all due regard to my wonderful Democrat 
friends, we're getting to the point where so many people are 
running for President it's almost going to be impossible to 
criticize a Democrat, because there aren't' that many not 
running for President.
    But be that as it may, we're in a very dangerous time here. 
Things are shifting dramatically. It seems like just yesterday 
to me, and I've been involved in politics for over 20 years, 
just yesterday that we had the Senate majority Harry Reid 
trying to put an end to birth right citizenship, and now we 
have situations--we have Governors pulling surveillance planes 
of the Air National Guard off the border. Almost impossible to 
get additional funding for the border patrol or things to 
protect us. Very dangerous times.
    So obviously things are shifting. And ultimately, I think 
if we don't enforce our border, our country is done. And with 
that regard, I'm always looking out to hyper partisanship 
designed to go after people who are the last firewall on saving 
    Can I ask you: Who has been complaining about Ms. Conway 
here? Who is offended? Who is causing you to have to look into 
    Mr. Kerner. Well, so we get complaints from organizations. 
We also get complaints from citizens. And then, of course, in 
the public, you know, sphere, there's been a lot of complaints 
about the obvious violation--these violations. We can have a 
discussion about parts of the Hatch Act that may or may not 
need clarification. These are pretty obvious, they're pretty 
clearcut, especially on the media----
    Mr. Grothman. How many complaints are you getting, say, 8 
years in the Obama Administration?
    Mr. Kerner. We have stats on this I can get.
    So during the Obama Administration, I guess we roughly 
got--right. So the law changed in 2012. So our complaints went 
down, because state and local officials were no longer covered. 
Prior to that, it was around 500. Then it went down to about 
270, then 150, then 106, then it went up a little bit during 
the latest couple of years.
    Mr. Grothman. Okay. And during the--say, in the Trump 
administration, can I ask who was second or third in line of 
number of complaints they received?
    Mr. Kerner. Other than Ms. Conway, you mean?
    Mr. Grothman. Yes.
    Mr. Kerner. I did want to point out one more thing which is 
we get complaints from citizens, from organizations. We also 
get complaints from Congress. We have complaints from the House 
and the Senate.
    So I just wanted to clarify that.
    Mr. Grothman. You apparently were upset about this. I guess 
the thing I'm getting to--I've noticed in politics that a lot 
of times an articulate conservative woman brings out the worst 
in people. They become engaged at a successful conservative 
woman. And that's why I wondered, were there any men out there 
who are subject to this vitriol like Ms. Conway is, or is she 
with the one who sends people into orbit?
    Mr. Kerner. I think we get complaints about several White 
House officials. I think at one point we should--like six 
warning letters, so there were men and women on that. I think 
Sarah Huckabee Sanders was probably No. 2.
    Mr. Grothman. Another conservative women. Is that 
surprising, that of all the people that President Trump has 
appointed, that the two women--I wasn't aware that Sarah 
Huckabee was No. 2 on the list. That it's the two articulate 
woman that drive people nuts?
    Mr. Kerner. Just to point out, we found no violations on 
this Huckabee Sanders, that I'm aware of.
    Mr. Grothman. Well, I'm glad you did. But apparently people 
were complaining about her.
    Mr. Kerner. But they're the most visible, right? She's the 
press secretary. She talks to the press Kellyanne Conway is on 
the media shows all the time. They're going to get--I mean, I 
don't know anyone equivalent to that that we see all the time.
    Mr. Grothman. Okay. Well, I'm just pointing out. And I'll 
leave it at that. Apparently the two Trump administration 
officials--and I assume usually the complaints are ginned up by 
the left wing, the type of people who want open borders. The 
two Trump people who have gotten the most complaints happen to 
be two of the most senior women in his administration, Sarah 
Huckabee and Kellyanne Conway, who--very articulate women.
    I yield the rest of my time.
    Mr. Kerner. Mick Mulvaney was also one of them, just to 
finish up. But----
    Mr. Raskin.
    [Presiding.] The committee will stand in recess until after 
votes. The committee will be notified as to when.
    Thank you for your testimony.
    Mr. Raskin.
    [Presiding.] Without any objection, I want to introduce 
into the record an article from the Boston Globe on September 
1, 2018, entitled Ethnicity Not a Factor in Elizabeth Warren's 
Rise in Law.
    [*Article not submitted.]
    And now I will turn to Mr. Hice who is recognized for five 
    Mr. Hice. Thank you, Mr. Chairman.
    I'd like to go back. Mr. Kerner, you referenced earlier 
that you said professionals make the determination. Who are 
they and how do they make the determination?
    Mr. Kerner. So the professionals at OSC are civil servants 
hired through the merit system. They've been there a very long 
time. Our chief has been the chief for about 19 years. Her 
deputy has been there about 12 years as her deputy. And then 
they have a staff as well. And they make the determination 
based on complaints that come in.
    They open a file. They do the investigation and then 
generally make at least--depending on the case, but sometimes 
they just make a recommendation to the front office, or they 
take some kind of action on their own.
    Mr. Hice. Okay. All right. So when we come to this 
particular case in this situation here, I mean, it's pretty 
unprecedented action, the same place, would you agree with 
    Mr. Kerner. Yes, I would.
    Mr. Hice. Because it's never happened before like this.
    So going back to this professional group making a 
determination, do they look at this and just say--I mean, 
there's no one, two, three, clearcut, cross this line. At some 
point, they--in your words, they make a determination. So at 
some point, it's--they know it when they see it, and they make 
a call, a judgment call.
    Mr. Kerner. But I think it's a little bit more complicated. 
There is more of a collaborative process. So, for example, in 
December 20th of last year, they sent a cure letter to Ms. 
Conway, via the White House counsel's office----
    Mr. Hice. No. I get that. But at the end of the day, they 
make a determination. So it's a--it is a----
    Mr. Kerner. Yes.
    Mr. Hice [continuing]. ``we know it when we see it'' kind 
of a thing.
    Mr. Kerner. Yes. They make a legal determination, yes.
    Mr. Hice. All right. So when you made this--your part of it 
to make the recommendation to have her removed from office, who 
did you consult with? Do you have a group of professionals that 
you consult with in making that determination, or is that 
solely in your lap? How did you make that recommendation?
    Mr. Kerner. Sure. So the recommendation comes to me from 
the career staff. They have a recommendation in the report, 
because they do the investigation. They write the report. And 
then I do have some folks in the front office, political 
appointees. And we discuss what to do with a case. We do some 
edits, if needed, and that sort of thing. And so that's how the 
decision was made.
    Mr. Hice. Did you consult with anyone outside the office?
    Mr. Kerner. No, I did not.
    Mr. Hice. So no phone calls--seeing that there was 
unprecedented, seeing that this has never happened before, 
again, you didn't seek any consultation whatsoever?
    Mr. Kerner. On the inside. Inside, yes, but not outside, 
    Mr. Hice. All right. And you said that staff and who else?
    Mr. Kerner. So the professional staff that I mentioned that 
are in the Hatch Act unit. And then I hire people. I have a 
political staff, including folks who used to work here. And 
they work for me directly. They're Schedule Cs. They're 
    Mr. Hice. So the recommendation to remove her was just 
between you and staff?
    Mr. Kerner. Yes. Correct.
    Mr. Hice. All right. And no other legal counsel? No one 
else? None of the professionals, the chief, the civil servants, 
no one else is involved?
    Mr. Kerner. No one----
    Mr. Hice. All right. Tell me about the external influence 
that impacted your decisionmaking.
    Mr. Kerner. So I think the reference to external influences 
was not about the report. The report was done. But it was about 
how much time we would give the White House to respond. So we 
initially gave them that very short deadline, because our 
expectation was that the--that Kellyanne Conway has never 
responded to us, so we weren't going to hear from her.
    Mr. Hice. So 16 hours your staff thought was adequate?
    Mr. Kerner. I don't know if--I thought it was--it wasn't a 
question of adequacy. We didn't expect her to respond.
    Mr. Hice. Well, when you write the White House--you contact 
the White House, 16 hours is a bit ridiculous in terms of 
shortness of notice. And you made that decision strictly 
yourself with the aid of some staff?
    Mr. Kerner. Correct. That's correct.
    Mr. Hice. All right. And you see nothing wrong with a 
demand like that in 16 hours?
    Mr. Kerner. No, because if--because it was based on the 
expectation that neither the White House nor Kellyanne Conway--
    Mr. Hice. But you were feeling outside pressure, that's 
what you told the White House, to release the report.
    Mr. Kerner. Well, they characterized the outside pressure. 
I did not feel outside pressure. I felt----
    Mr. Hice. Well, then, why 16 hours, then? I mean, that's 
pressure. There's something behind 16 hours. It's not a random 
    Mr. Kerner. Sure. The motivation behind that wasn't any 
outside pressure. It was I wanted to--we have the report ready, 
and I wanted to make sure that we released it within a fairly 
short time of what had occurred, both the conduct, all the 
violation--the violations were on TV like practically----
    Mr. Hice. Did you communicate with this staff or the 
chairman prior to this hearing?
    Mr. Kerner. With the chairman?
    Mr. Hice. Yes.
    Any of your answers today coordinated at all.
    Mr. Kerner. I did not talk to the chairman.
    Chairman Cummings. The gentleman's time has expired.
    The delegate from the District of Columbia, Ms. Norton.
    Mr. Meadows. I have a unanimous consent request----
    Chairman Cummings. Yes.
    Mr. Meadows [continuing]. real quickly.
    I want to put in the record the White House response to Mr. 
Kerner dated July 11, 2019, where it says that Mr. Kerner, the 
witness, actually responded. The reason the timeframe was there 
was because there was the response to press questions 
concerning the media reports about Ms. Conway.
    Mr. Raskin. Without objection.
    Thank you.
    Mr. Meadows. Thank you.
    Mr. Raskin. Ms. Norton.
    Ms. Norton. Thank you very much, Mr. Chairman.
    Mr. Kerner, I simply want to clear up matters.
    Essentially going to the constitutional right to speak. 
Now, we know that Ms. Conway was speaking about the kind of 
political and public matters that we talk about every day. So 
some watching this hearing may wonder, well, what's wrong with 
her talking about what's happening and--as a public matter.
    My interest in it comes because in another of my lives 
before I came to Congress, I was a 1st Amendment lawyer. So I 
am accustomed to arguing for peoples' right to say anything 
they want to say. So I've had to get used to the Hatch Act too 
and thus want to clarify, first of all, whether you consulted, 
when dealing with Ms. Conway with talking about public matters 
of the day, who you consulted with. Did they include lawyers 
who had any background in constitutional law.
    Mr. Kerner. So the--our Hatch Act unit has lawyers on 
staff. In fact, I believe they're all lawyers. And they spoke 
to the White House counsel's office. They had regular 
communication. They made certain findings and asked her to cure 
her Twitter feed. And they had other communications in terms of 
the applicability of the Hatch Act to her media appearances.
    Ms. Norton. Now, her Twitter feed--I'm trying to see--you 
know, could she speak about issues of the day, political 
issues, in her private capacity?
    Mr. Kerner. Absolutely.
    Ms. Norton. Would you give us examples of why you thought 
she was apparently not speaking in her private--well, first of 
all, I understood what I saw in that film.
    Did you find that sometimes she spoke in her private 
capacity about some of the same issues that were conversant 
during the day?
    Mr. Kerner. So I don't believe so. I think the folks who 
actually did the investigation informed me that they didn't--
that all the media appearances that they looked at, she was 
speaking in her official capacity or----
    Ms. Norton. So most of the time when she came before the 
camera, she was really speaking in her official capacity. And 
you do not--you did not find circumstances where she tried to 
step outside of her official capacity to speak about events of 
the day.
    Mr. Kerner. That's right.
    Ms. Norton. Mr. Chairman, I just want to say, I think 
that's the only way this statute is constitutional. I can 
conceive of people working in the White House, only the 
President and the Vice President are immune, where Kellyanne 
Conway could have avoided the issues before us today had she 
made it clear that--would it have been enough to say I'm not 
speaking in my public capacity. I'm not speaking as Kellyanne 
Conway, special assistant to the President. I'm speaking as 
Kellyanne Conway, private citizen. If she had said that and 
said some of the very same things she said officially, that 
would been constitutional? Yes or no?
    Mr. Kerner. I think that's right.
    Ms. Norton. Thank you very much.
    Mr. Chairman, I think it's very important to clarify that 
we don't want the public to believe that the Democrats on this 
committee are going after people for their free speech rights. 
And I simply want to clarify.
    Mr. Raskin. Would the gentlelady yield to the chair for 
just a moment?
    Ms. Norton. I'd be glad to yield.
    Mr. Raskin. Well, thank you very much for that important 
point. I know it's important to your constituents here in 
Washington, DC, Congresswoman Norton. It's important to my 
constituents in Maryland, because I have tens of thousands of 
Federal employees too. Many of them were told they could not 
wear a resist button. Many of them were told they could not 
talk about impeachment at work. And this is--I mean, there is 
meticulous comprehensive punctilious enforcement in the Hatch 
Act. And if we're going to change it, if our colleagues today 
are serious about it, they want to repeal the Hatch Act and 
allow anything to go in the Federal workplace, then it should 
be for everybody. It should not be a special deal just for all 
the President's men and women. Otherwise, Ms. Conway is going 
to have to respect the rule of law and the Hatch Act like the 
other 2 million Federal employees who are not employed to do 
campaign activity while at work.
    And with that, Ms. Norton, you have nine seconds left.
    Ms. Norton. I thank you very much. I think you were making 
part of the point I was trying to make.
    And thank you, Mr. Kerner.
    Mr. Raskin. And thank you very much.
    We go now for five minutes, Mr. Armstrong is recognized.
    Mr. Armstrong. Thank you, Mr. Chairman. You look good up 
    Mr. Raskin. Thank you very much.
    Mr. Armstrong. So I'm just going to followup on Mr. Hice's 
    You know, earlier you had said--the Kellyanne Conway 
interview on May 29 was fairly early in the morning, right?
    Mr. Kerner. Yes.
    Mr. Armstrong. And earlier you had said that the report had 
previously been written. But this was the straw that broke the 
proverbial camel's back.
    Mr. Kerner. Correct.
    Mr. Armstrong. So my question is why did it take seven or 
eight hours to get to the White House?
    Mr. Kerner. Well, I mean, the report was essentially 
written. We added a couple of things from the interview. It was 
the first paragraph, and then we had to add it to the fact 
    Mr. Armstrong. So it was edited, emails back and forth 
consulting with your staff.
    Mr. Kerner. Correct.
    Mr. Armstrong. Was the recommendation for her firing 
written before or after?
    Mr. Kerner. So the recommendation for firing was already in 
the report, but it wasn't in the same way. It was something to 
the effect of termination up to and including her removal.
    Mr. Armstrong. Okay. And then I want to talk--we're talking 
a lot about of accountability. I want to talk about the 
advisory opinion.
    Obviously, your office treats that as--with the force of 
law, right?
    Mr. Kerner. Well, they're advisory opinions, so they're not 
binding. They're just our interpretation of the statute and the 
code. So the advisory opinion itself is not binding, but we 
have an advisory function. So if Federal workers want to get 
information, they can call, and they will get an opinion 
    Mr. Armstrong. So if a Federal workers violates those 
social media requirements in your advisory opinion, they can't 
be fired, suspended without pay, with pay because of that 
advisory opinion?
    Mr. Kerner. They can, but it won't be because--just because 
of the opinion. There will still be an investigation. Because 
the advisory opinion is not binding. So the advisory opinion 
tells them where the guardrails are. If they choose to violate 
it and someone files a complaint and there's a case----
    Mr. Armstrong. But the advisory opinion is the guardrails. 
I mean, there's nothing else regarding social media that comes 
from OSC.
    Mr. Kerner. Well, yes. But the--but like I said, the 
guidance only informs how OSC's professional staff views the 
statutes application to whatever the question might be. So 
    Mr. Armstrong. Okay. So there have never been any 
subcommittees in the House on what constitutes social media--
appropriate social media. None in the Senate either, right?
    Mr. Kerner. I'm sorry. I don't understand the question.
    Mr. Armstrong. We're talking about social media. We're 
talking about Facebook. We're talking about Twitter.
    Mr. Kerner. Yes.
    Mr. Armstrong. We're talking about something that is going 
on every day constantly and----
    Mr. Kerner. Yes.
    Mr. Armstrong. I mean, we're getting--in the advisory 
opinion, we're getting to the point where, if you are working 
telephonically from at home on your lunch hour, there's a 
    Mr. Kerner. Yes.
    Mr. Armstrong [continuing]. as to whether or not you can 
have a yard sign in your yard.
    Mr. Kerner. There's a question of whether you're on duty or 
not, yes.
    Mr. Armstrong. Yes. Well, I mean, so--and that's what I'm 
saying. And this is going on everywhere. So there's never been 
public comment period on this.
    Mr. Kerner. That's right.
    Mr. Armstrong. OPM has never promulgated a rule. Never 
asked for regulated community to respond to this.
    Mr. Kerner. Right. Because--well, first of all, like you 
said, OPM is doing the rules. But this isn't a rule. We're not 
rulemaking. We're only giving--it's basically just a listing of 
the advisory opinion that the folks in the Hatch Act unit give 
every day to people----
    Mr. Armstrong. So what is the rule on social--what is the 
rule on social media and the Hatch Act?
    Mr. Kerner. So----
    Mr. Armstrong. What's the OPM rule on social media and the 
Hatch Act?
    Mr. Kerner. I don't know that OPM has a regulation on 
social media. But, of course, we have to apply rules. The 
medium is only the medium, right? The violation is how you 
communicate the message if there's a violation.
    Mr. Armstrong. So the advisory opinion at OSC is the rule 
regarding social media.
    Mr. Kerner. No. I just disagree with that. I think it's 
just a codification of what the advice function is that these--
that the Hatch Act unit gives every day on how the rules would 
be applied to a particular----
    Mr. Armstrong. Well, codification implies that it has the 
force of--I mean, nobody's ever been convicted on an advisory 
    Mr. Kerner. As my staff just informs me, there's no OPM 
rule on emails in the Hatch Act either. And yet we still view 
emails in a certain way.
    So it's not like a rule, like if you do X and, you know, we 
said that, that's an automatic violation of a rule, it's not. 
It's an advisory opinion. It's still a complete factual inquiry 
on what happened.
    But this would guide you. It's supposed to advise the 
Federal work force on where the guardrails are. But it's not in 
and of itself a violation. At least that's how I understand it.
    Mr. Armstrong. But it's written by career nonpartisan 
officials. So we're okay with it.
    Mr. Kerner. Well, I'm okay with it, but----
    Mr. Armstrong. James Comey, Andrew McCabe, Peter Strzok, 
Lisa Page, Lois Lerner, Gregory Craig, all career nonpartisan 
Federal officials. So I've been through this road a lot. I 
think when it serves our purposes we say career nonpartisan 
Federal employees are beyond reproach. And when it doesn't 
serve our purposes, we say they are those other things.
    But it seems to ebb and flow, because I've also watched a 
DOJ lawyer who has a video online right now being absolutely 
skewered who is a career nonpartisan Federal employee. And not 
only has it been shared by the same people in this committee 
that are arguing the same thing on the other side, she has 
received death threats. She had been voxed, and she's been 
dealing with it.
    So I look forward to my friends on the other side defending 
her as well.
    Mr. Raskin. Thank you. The gentleman's time is expired.
    We go to the gentlelady from California, Ms. Speier, for 
five minutes.
    Ms. Speier. Thank you, Mr. Chairman.
    Thank you, Mr. Kerner. You are someone who has withstood a 
great deal of questioning today, and you're still sitting. So I 
guess that's a good sign.
    I'm reminded that the genesis of the Hatch Act was 1938 
when Democrats were using the WPA for patronage jobs, and then 
those individuals, employees, were working on campaigns. That 
was something that we found very offensive at the time. And 
that's--the Hatch Act was born.
    I find it stunning today that we have so many people on the 
other side of the aisle who took an oath of office that they 
would uphold the Constitution and all the laws of this country, 
and now we have the Hatch Act that's being violated. You have 
indicated there's 12 instances at least, and their effort is to 
somehow undermine the Hatch Act. And that's one of the acts 
that they swore to uphold.
    Now, I want to share with you a recent Facebook post by 
Lynne Patton. This might be of interest to Mr. Meadows. She's 
the regional administrator for the Department of Housing and 
Urban Development. She's a political appointee who used to work 
for the President and his family before she joined HUD.
    Ms. Patton wrote on May 22, and I quote, just re-tweeted 
this amazing tweet from both my Twitter accounts, professional 
and personal. It may be a Hatch Act violation; it may not be. 
Either way, I honestly don't care anymore.
    Does it concern you that an executive branch official 
openly says they don't care about complying with the Hatch Act?
    Mr. Kerner. Yes, it definitely concerns me when anybody 
says--who's bound by it doesn't want to abide by the Hatch Act.
    As to the Patton case specifically, I can't comment on that 
because I believe we may have a case.
    Ms. Speier. So as we look at your power and authority, it's 
pretty limited.
    Mr. Kerner. Yes.
    Ms. Speier. You can only make recommendations.
    Mr. Kerner. Well, as to certain people. Obviously we do--
when we have a functioning board, most Federal workers--we can 
go to the MSPB and file a complaint and get discipline through 
the board. It's only on the PAS, on the Presidential 
appointees, that we have more limited jurisdiction.
    Ms. Speier. So since you have such limited jurisdiction on 
PAS, and you referred to them, do you think it might be 
effective if you could go to the MSPB and impose a fine of 
maybe $10,000 for each violation? Do you think that would 
change behavior?
    Mr. Kerner. It's obviously always possible to get a fine. I 
just don't know--obviously--first of all, the statute first 
precludes us from going to the MSPB on PAS appointees. And, 
second, of course, there are some separation of powers 
appointments clause considerations as well. So I just don't 
know how feasible that will be.
    Ms. Speier. So you'll have the opportunity to weigh in on 
that, because both the chairman and I have--actually, the 
former chairman have just introduced legislation, H.R. 3499, 
that would give you that authority.
    And I guess--let me just conclude by saying this: What we 
have seen over and over again by the President is a willful 
intentional action to evade the law, to basically violate the 
law. I'm thinking specifically now about the antinepotism law. 
That was put into place when John F. Kennedy hired his brother 
to be the attorney general. We thought that's not--that's not 
    So the President, President Trump, comes along, and wants 
to hire both his daughter and his son-in-law and was told, no, 
we have an antinepotism law in effect. So what does he do? He 
says, well, I'm just going to make them volunteers. But they're 
still doing the jobs in the administration, in the highest 
positions in the administration in the White House.
    So once again, an effort by the President to not comply 
with the law. He does that consistently. I find it very 
offensive. I think the American people do as well, because 
nobody, nobody, is above the law. So I commend you for your 
work. I commend you for your candor. And I'd like to just 
underscore again: You are a Republican, correct?
    Mr. Kerner. Yes, ma'am.
    Ms. Speier. And you have been appointed by President Donald 
    Mr. Kerner. Yes.
    Ms. Speier. Thank you.
    I yield back.
    Mr. Kerner. Thank you.
    Chairman Cummings.
    [Presiding.] Mr. Jordan.
    Mr. Jordan. Mr. Kerner, you said the report was written 
prior to Ms. Conway making the now somewhat famous media 
appearance; is that right?
    Mr. Kerner. Yes.
    Mr. Jordan. Okay. And you said that you had already decided 
you were going to recommend she no longer be allowed to work at 
the White House.
    Mr. Kerner. The recommendation was going to read something 
like penalty up to--up to removal.
    Mr. Jordan. So you had already written in the report that 
you were in favor of her being removed from her position at the 
White House.
    Mr. Kerner. Yes.
    Mr. Jordan. All right. She goes and does the media--you 
determined--when you had already decided and had written the 
report, were you going to give the typical two-week notice, 
when you sent the two-week notice to respond?
    Mr. Kerner. We just hadn't decided when to release the 
report yet.
    Mr. Jordan. But then she does the media appearance. And as 
you have said to Mr. Meadows' questions, you felt like you had 
got poked in the eye, as you told the White House counsel's 
office, right?
    Mr. Kerner. Yes.
    Mr. Jordan. So she does the media appearance. You've 
already got report written. You're already going to recommend 
she's fired. And then you say, you know what? Now we're really 
going to break tradition. We're really not going to follow the 
rules. We're going to give her 16 hours to respond. Is that how 
it all played out?
    Mr. Kerner. Well, when you say not follow the rules, that's 
not one of the rules.
    Mr. Jordan. Have you ever done that before where you tell 
somebody you've got 16 hours to respond to our recommendation, 
our report?
    Mr. Kerner. No. But that's----
    Mr. Jordan. So this was the first time you've ever done 
    Mr. Kerner. But it's not part of the rules. But, yes.
    Mr. Jordan. Okay. Let's say protocol or process, past 
    Mr. Kerner. It was the second report we've authored, so--
the first time we gave her eight days. She didn't respond. So 
this was--under my tenure.
    Mr. Jordan. Yes.
    Mr. Kerner. So this was the second time we've done this. So 
I don't know that there's enough of a sample to really say what 
the rule might be, but----
    Mr. Jordan. Did you--and the reason you gave her just the 
short time, the 16-hour turnaround, was why?
    Mr. Kerner. Because we did not expect a response and 
because we felt that the report----
    Mr. Jordan. So is that how government agencies should 
operate? Just because you don't expect a citizen or a taxpayer 
to respond in--to respond or maybe respond at all, you're not 
going to follow procedure? Not going to give them a chance that 
some kind of due process or some kind of response time.
    Mr. Kerner. Well, you mentioned rules earlier. Now you 
mention procedure. The statute doesn't require any of that. The 
statute just says----
    Mr. Jordan. I didn't say it did. I'm just----
    Mr. Kerner. Well, you mentioned rules and procedures. But 
there are no rules and procedures. This is----
    Mr. Jordan. Well, that's the scary thing.
    Mr. Kerner. Completely----
    Mr. Jordan. That's the scary thing.
    Mr. Kerner [continuing]. but that's the statute. It's not 
my fault that's how the statute is written.
    Mr. Jordan. All I'm saying is you broke from normal 
behavior of the office. The office always gives people--like, 
this is the first time you issued a public report. This is the 
first time you recommend someone be fired. This is the first 
time you said, oh, darn. She just poked me in the eye with a 
media appearance. We're not going to give her any time. We're 
going to say, here's the report at five. Tomorrow, at 9 a.m., 
have some response if you're going to have any. That's unusual 
is all I'm saying.
    Mr. Kerner. That's fair. It's not what happened, but it's 
fair. I mean, when the----
    Mr. Jordan. What? You didn't give her just 16 hours? You 
didn't say, first of all, nine the next morning?
    Mr. Kerner. We did. But when the White House called and 
requested two weeks, we essentially gave them two weeks; so we 
didn't release the report for----
    Mr. Jordan. Let's go to her Twitter account.
    In your letter to the President, you said--talking about 
Ms. Conway's Twitter account, you said about 2.7 million people 
follow her account.
    Why was it important for you to put the number of followers 
she has?
    Mr. Kerner. I suspect the difference was how she had 
basically taken off--once--the claim--her claim is that this is 
a personal account, and yet she has seen this big growth in the 
account because she's essentially using it as an official 
    Mr. Jordan. How many accounts does--Twitter accounts does 
Ms. Conway have?
    Mr. Kerner. I'm sorry. How many what?
    Mr. Jordan. How many Twitter accounts does Ms. Conway have?
    Mr. Kerner. My understanding, she has one.
    Mr. Jordan. Did she have it prior to working for President 
    Mr. Kerner. She did.
    Mr. Jordan. Yes. Is it her personal account?
    Mr. Kerner. Well, it's a hybrid. It's her personal account 
that she uses for
    Mr. Jordan. Was it her personal account--if she had it 
prior to working for Mr. Trump, it had to be her personal 
    Mr. Kerner. Sure. It was, yes.
    Mr. Jordan. And people are allowed to continue to have a 
personal account even if they work in government.
    Mr. Kerner. Yes.
    Mr. Jordan. Okay. But in your report, you felt it was 
important to say 2.7 million people follow her account.
    Mr. Kerner. Correct.
    Mr. Jordan. Why was it important to include that, again?
    Mr. Kerner. Because by--because by virtue of her making the 
account an official account and referencing--when Kellyanne 
Conway goes and has official statements----
    Mr. Jordan. Well, let me ask----
    Mr. Kerner [continuing]. she references the account. And 
that, in part, could explain the increase in followers.
    Mr. Jordan. Well, let me ask it this way. What if she had 
one follower and said the same things. Would she be in 
violation of the act?
    Mr. Kerner. It's just one of the factors, though.
    Mr. Jordan. But you didn't answer my question.
    Mr. Kerner. It is a factual analysis----
    Mr. Jordan. If she's got one follower--okay. We'll say 
she's--let's double that. She's got two followers and she says 
the exact same things, re-tweets and tweets the same things, 
would she be in violation of the Hatch Act, according to how 
you guys interpret it?
    Mr. Kerner. I can't answer that, because it's a multi 
factor test. It isn't just how many followers.
    Mr. Jordan. Assuming all the other things that you reach--
because you used the Twitter thing as a reason for her to be 
alleged violation of Hatch Act.
    Mr. Kerner. Sure.
    Mr. Jordan. So two followers, everything else is the same, 
would she still be in violation of the Hatch Act?
    Mr. Kerner. I think the followers--the fact of the increase 
in followers was only to suggest that she's not just using it 
for personal--for her personal account.
    Mr. Jordan. We don't know that.
    Mr. Kerner. Well, we do, because we did an analysis----
    Mr. Jordan. Maybe she's got the best tweets in the world.
    Mr. Kerner. Perhaps.
    Mr. Jordan. It seems to me when you put in the number, 
somehow you're looking at impact versus the underlying offense. 
Like, it should not matter if she's got one follower or 2.7 
million. If she did something wrong, she did something wrong. I 
don't think she did. But you guys put that in there because, 
oh, you think this makes your case look better. And maybe more 
importantly you put it in there because this is the impact she 
is having with her communication so much so you thought you had 
to include the big number in your letter to the President.
    Mr. Kerner. OSC has no interest in limiting her 
effectiveness. Her effectiveness and how she represents the 
President, that's for the President and her. We have no 
interest in that----
    Mr. Jordan. If that was the case, you wouldn't have put a 
number in there. You'd have just said she said things on her 
Twitter account she's not supposed to say. But you did it. You 
said no, because she's got 2.7 million. That's more followers 
than just about anyone in Congress.
    Mr. Kerner. But it's not about her effectiveness. It's 
about getting a big increase----
    Mr. Jordan. Then why did you put the number in?
    Mr. Kerner. Because the increase explains that it's an 
official account, not a--just a personal account. That's why
    Mr. Jordan. Even though it was a personal account, she had 
it prior to working for White House.
    Mr. Kerner. But she didn't have those followers at that 
point. She got those extra followers----
    Mr. Jordan. Because she got great tweets.
    Mr. Kerner [continuing]. because she made it an official 
account. That's our reasoning. I don't know what else to tell 
    Chairman Cummings. Thank you. Thank you very much.
    Thank you. The--you know, let me--first of all, I want to 
thank you for being here.
    Mr. Kerner. Thank you.
    Chairman Cummings. And I--this is incredible, to be frank 
with you. I don't want to leave stuff hanging that doesn't need 
to hang. Mr. Jordan, as he was asking you questions, talked 
about--he spent, I think, seven or eight questions asking about 
16 hours. Now, I'm just sitting here listening. And tell me 
something. You said that it actually wasn't 16 hours, but it 
was more like two weeks. Is that what you said?
    Mr. Kerner. That's correct.
    Chairman Cummings. And explain that to me, please.
    Mr. Kerner. So when we sent the letter over to the White 
House, we requested comments, 16 hours later, as Mr. Jordan 
correctly said. Once the White House reached out very shortly 
after receipt of the letter, they requested two weeks. And we 
essentially gave them--it turned out to be two weeks.
    Chairman Cummings. So you gave them two weeks.
    There ain't no 16 hours, right?
    Mr. Kerner. There were no 16 hours.
    Chairman Cummings. Thank you very much.
    The whole idea of--the problem here is that there's been a 
constant, and what appears to be deliberate, effort to violate 
the Hatch Act. I don't care how you--different people interpret 
it different ways. I get that.
    But there was a reason--and you talk about 25 times. And we 
are sitting here arguing about whether this committee should be 
even pursuing something--dealing with something like this. And 
it comes under the jurisdiction of this committee. As far as 
I'm concerned, it would be malpractice if we didn't do it.
    We're going to take a look at all of this. But it does 
concern me, and it should concern all of us as Americans. And 
particularly it should concern the 2-million-plus Federal 
employees. And I've got tens of thousands in my own district. 
And I know Mr. Connolly has quite a few. And they're the ones 
that I see in the morning when I leave from Baltimore at 5. 
Them. Going over to social security, which is in my district. 
Some of them running to D.C. Going to drop off of the babies to 
the babysitter so they can get to work. Them.
    And then they try as they might to obey the law. That's 
what they do. They're not asking for anybody to defend them. 
They're not asking for any awards for doing the right thing. 
They do it because it's the law.
    Now, if folk want to change the law, that's a whole other 
thing. But right now that is the law. And from what I can see, 
this--all of this falls under the purview of your office; is 
that right? All of it.
    Mr. Kerner. Yes, it does.
    Chairman Cummings. And so--and I want to go back to 
something Ms. Speier said. It is kind of interesting that a 
person who is a Trump appointee--when you don't come with the 
right information--and as a matter of fact, whatever you have 
to say don't fit the narrative--and that--I can say that from 
when Issa was chairman.
    If something didn't fit the narrative, he literally 
canceled the hearing if he thought it wasn't going to fit the 
narrative. And the question is what about truth.
    So I too--I want to--you know, I thank you for just doing 
your job. I do. And you may not get--you're not going to get no 
award from President Trump, I can tell you that. And you are 
not going to be applauded by too many people.
    But I can tell you one thing, the road that you are on will 
lead us to where we need to be to that more perfect union. The 
road that your on will lead us to truth. The road that you and 
your staff are on will allow our democracy to be sustained even 
when I'm dancing with the angels. And so I know that may not 
mean a lot to you, but I want to thank you.
    I spend every waking hour trying to figure out how do we 
get back to normal. How do we get back to truth. How do we get 
back to the rule of law. How do we get back to standing up for 
the very laws that we passed. How do we get to making sure that 
our legislative branch maintains its power. And I'm talking 
about Republicans and Democrats. How do we maintain our 
authority. And I'm not just here to tell you and your staff, 
again, we are on the right path from things that--the kinds of 
things that you have tried to explain to us today.
    So, again, I want to thank our witnesses. Without 
objection--did you have something? Did you have something?
    Mr. Jordan. I'd be happy to yield to the gentleman from----
    Chairman Cummings. No. You got to let it go.
    Mr. Jordan. All right.
    Chairman Cummings. I asked you.
    Okay. Without objection, all members will have five 
legislative days within which to submit additional written 
questions for the witness to the chair,--which will be 
forwarded to the witness for their response. And, again, Mr. 
Kerner--is that your staff back there?
    Mr. Kerner. Yes, it is.
    Chairman Cummings. How many people you got on your staff?
    Mr. Kerner. Well, the Hatch Act staff has five permanent 
    Chairman Cummings. Well, again, I want to thank you.
    I ask our witness to please respond as promptly as 
possible. We may have some written questions for you. I just 
ask you to respond as fast as you can. All right?
    Mr. Kerner. Yes, sir.
    Chairman Cummings. All right. The hearing is over.
    [Whereupon, at 4:04 p.m., the committee was adjourned.]