In a new column, law Professors Claire Finkelstein and Richard Painter outline the case for potentially charging ex-President Trump with a certain criminal act that could send him to prison for up to three years. Finkelstein and Painter released their conclusions after the Office of Special Counsel (OSC) — an oversight agency within the federal government — released a report stating that a full 13 officials in the Trump administration had violated the Hatch Act, which is a federal law that prohibits federal officials from engaging in partisan political activities in their official capacities. The problem is that there’s little in terms of potential consequences for Hatch Act violators now that they’re out of power — but Trump could still face his own consequences.
‘[The] OSC finding may be significant for another reason, namely its implications for another Hatch Act complaint we filed, this one a criminal complaint against Donald Trump brought last October with the Department of Justice. Although the president and vice president are immune to the ordinary Hatch Act prohibitions on use of public office for political purposes, there is a separate provision (18 U.S.C. § 610) under which it is a crime for any person to “intimidate, threaten, command, or coerce … any employee of the Federal Government … to engage in any political activity.” Violations are punishable by up to three years in prison.’
Finkelstein and Painter added that the “legal determination [Attorney General Merrick] Garland—or a special prosecutor appointed by Garland—must make is whether Trump coerced or ordered the political activity identified as Hatch Act violations by the OSC” — and Trump may, in fact, be guilty of exactly such coercion of lower-level officials to break the law.
The Office of Special Counsel wrote in their findings on the Trump administration’s Hatch Act violations that they’d “concluded that the Trump administration tacitly or expressly approved myriad Hatch Act violations committed within that critical period immediately prior to the 2020 election.” And on an even more personal note, investigators noted that a violation of the Hatch Act committed by then-Secretary of State Mike Pompeo unfolded “possibly” at the behest of “the Trump campaign or President Trump himself.” That incident involved Pompeo’s taping of a message for the 2020 Republican National Convention while on an official trip to Israel. Read more here.
Trump could face other charges. He remains under criminal investigation by Atlanta-area District Attorney Fani Willis for his attempts to overturn Joe Biden’s 2020 presidential election victory in Georgia. Potential crimes under investigation include criminal solicitation to commit election fraud, intentional interference with the performance of election duties, conspiracy, and racketeering. Elsewhere, the Trump family business is also continuing to face a criminal investigation in New York over fraud-related issues.
