Questions Remain about the Targeting of Kellyanne Conway for Hatch Act Violations

When the Office of Special Counsel concluded that Kellyanne Conway had repeatedly violated the Hatch Act, conservative expressed outraged. Tom Fitton over at Judicial Watch suggested a connection between the OSC’s investigation of Conway and Henry Kerner, the special counsel for the United States Office of Special Counsel. Fitton suggested Kerner was tied to the IRS targeting of conservative and TEA party groups during the Obama administration and said that the OSC was anti-Trump for going after Conway. Kerner, who was appointed to the position by President Trump in 2017, denies the claims made by Judicial Watch.

Prior to his appointment, Kerner was Senator John McCain’s former staff director and chief counsel on the Senate Homeland Security Permanent Subcommittee.

According Judicial Watch’s reading of IRS documents released last year, Kerner urged top IRS officials to “audit so many [non-profit group] that it becomes financially ruinous,” during a meeting on April 30, 2013, which included Lois Lerner, who was the IRS director of exempt organizations at the time and, you may recall, a key figure in the IRS targeting scandal, which was exposed a few weeks after that meeting. The record shows that conservative or TEA party groups were not mentioned in the meeting and the quotes attributed to Kerner were a paraphrase contained within the minutes of the meeting.

In response to an earlier version of this story, Henry Kerner spoke with PJ Media to correct the record about the April 30, 2013, meeting and to refute the suggestion by Fitton on Twitter that the OSC “abused power” to “lawlessly attack” Kellyanne Conway. “The way OSC's procedure works is that our professional, non-partisan Hatch Act unit receives complaints and then investigates all of them,” Kerner explained. “Here, they did so, found numerous violations and eventually prepared the report that goes to the President. There was no singling out at all.” He also added, “We are mandated by statute to conduct investigations of Hatch Act violations and then to report them to the President (as to certain high-level officials)” and that while they can make a recommendation, “the president is free to disregard it as he has apparently chosen to do here.”

Here’s what Judicial Watch wrote about the Kerner in June 2018:

[Lois] Lerner and other IRS officials met with select top staffers from the Senate Governmental Affairs Committee in a “marathon” meeting to discuss concerns raised by both Sen. Carl Levin (D-MI) and Sen. John McCain (R-AZ) that the IRS was not reining in political advocacy groups in response to the Supreme Court’s Citizens United decision.  Senator McCain had been the chief sponsor of the McCain-Feingold Act and called the Citizens United decision, which overturned portions of the Act, one of the “worst decisions I have ever seen.”

In the full notes of an April 30 meeting, McCain’s high-ranking staffer Kerner recommends harassing non-profit groups until they are unable to continue operating. Kerner tells Lerner, Steve Miller, then chief of staff to IRS commissioner, Nikole Flax, and other IRS officials, “Maybe the solution is to audit so many that it is financially ruinous.” In response, Lerner responded that “it is her job to oversee it all.”

Kerner also refuted the suggestion that there was any connection between the comments at the meeting and the IRS scandal that broke weeks later. “The ‘so many’ in the quote doesn't refer to conservative or tea party groups, but rather was a question regarding the IRS's power in regard to sham groups pretending to be social welfare groups. In the eight-hour meeting with the IRS, the words conservative or tea party never came up.” Kerner also said the comment was taken out of context by Judicial Watch. “As a Trump appointee myself,  I bear Ms. Conway or this administration no animus whatsoever. As an independent agency head, however, I have a duty to make sure the laws apply to all federal employees equally. We simply can't have a two-tier system for Hatch Act enforcement.”

The IRS scandal involving the targeting of conservative and TEA party groups involved action occurring between 2010 and the 2012 elections. Because the meeting took place just before the scandal broke, Kerner says it’s absurd to suggest he was urging IRS officials to do something that had already taken place. Kerner was also one of the main architects of a Senate report criticizing the IRS for their targeting of conservative groups.

“Ms. Conway is entitled to comment on issues and candidates in her personal capacity,” Kerner told PJ Media. “She may not, however, use her official authority for the purpose of interfering or affecting the results of an election.” Kerner then suggested that anyone wanting further information on this point should read the OSC report.

After publication, Kerner reached out to PJM to correct the record about comments attributed to him. The article has been updated to reflect that new information and to include Kerner's rebuttal.