Legal questions

Trump's electoral threat against Sen. Claire McCaskill raises legal questions

By JOSH GERSTEIN

President Donald Trump’s public electoral threat Wednesday against Sen. Claire McCaskill during a speech in Missouri on tax reform triggered another round of questions about the administration’s blurring the line between partisan politics and official business.

Speaking at an industrial-fan factory in Springfield, Trump singled out McCaskill, a Democrat who is up for reelection next year in a state the president won decisively in 2016.

“We must — we have no choice — we must lower our taxes. And your senator, Claire McCaskill, she must do this for you, and if she doesn’t do it for you, you have to vote her out of office,” Trump said to loud applause and whistling from the audience. “She’s got to make that commitment. She’s got to make that commitment. If she doesn’t do it — we just can’t do this anymore with the obstruction and the obstructionists.”

Ethics experts said the main issue raised by the president’s comments is whether he was ad-libbing or whether White House aides planned for him to urge McCaskill’s defeat.

Trump is not covered by the Hatch Act, the federal law prohibiting politicking while on official duty, but White House officials are subject to the measure.

“The Office of Special Counsel should examine very closely if staffers were involved in the preparation of these remarks,” said Nick Schwellenbach, a former OSC official now with the Project on Government Oversight.

Richard Painter, a former White House ethics lawyer under President George W. Bush and now a University of Minnesota law professor, underscored that point.

“The issue to look at is: Was someone charged with writing an official speech writing political lines?” Painter said. “If he ad-libbed it, the president can do that.”

The White House did not respond to a question about who prepared the speech or how the related expenses would be paid for. But press secretary Sarah Huckabee Sanders said, “It's not a political threat when you ask a member of Congress to do their job."

While political campaigns or national party committees typically reimburse the White House for some of the costs associated with political speeches, one or two offhand political remarks by the president or other officials are not typically enough to require such a payment, officials said.

An Office of Personnel Management regulation on divvying up the costs of government officials’ trips says no reimbursement is required when “a minor, clearly incidental percentage” of an official trip is devoted to political activity. The rule suggests that 3 percent or less should be considered too trivial to trigger a reimbursement.

“If the president goes on this official trip, he may make a political comment to the press every now and then if he’s doing that de minimis and that’s not the purpose of the trip,” Painter said. “I don’t think you need to run for a small reimbursement to the RNC."

However, the former White House lawyer said any involvement by White House officials in preparing Trump’s speech would be more complicated. While certain senior officials are permitted to do some political activities during work hours, they’re not supposed to mix official business and electoral work, he said.

The questions about Trump’s targeting McCaskill come after Housing and Urban Development Secretary Ben Carson faced allegations that he violated the Hatch Act by appearing at a reelection campaign rally that Trump held in Phoenix last week. Cabinet members are permitted to speak at such events but are not supposed to discuss their official duties or be identified by their official title.

An offstage announcer introduced Carson as the secretary of Housing and Urban Development, but a department spokesperson said Carson was unaware that was going to happen. The episode led to at least two complaints to the Office of Special Counsel: one from former Obama Cabinet secretary Chris Lu and another from the Campaign Legal Center, a nonprofit organization focused on election law and democracy issues.

OSC officials declined to comment on Trump’s speech Wednesday or on the complaints about Carson’s appearance last week.

The office has occasionally rebuked White House officials and Cabinet members for Hatch Act violations. In June, OSC concluded that White House social media director Dan Scavino ran afoul of the law when he used Twitter to urge a primary defeat for Rep. Justin Amash (R-Mich.). The office also faulted Carson’s predecessor, Julian Castro and Kathleen Sebelius, President Barack Obama’s secretary of the Department of Health and Human Services, for failing to observe a line between official and political activities.

Obama sometimes peppered his official speeches with seemingly spontaneous political exhortations like, “Don't boo! Vote!” However, he doesn’t appear to have used such a speech to go after a political candidate as specifically as Trump did with McCaskill.

A former deputy chief of staff to Obama, Alyssa Mastromonaco, was among Democrats challenging Trump’s choice of forum to target McCaskill.

“DT hitting McCaskill by name and calling for her to be voted out of office,” Mastromonaco tweeted, “is a decidedly political, not official speech.”