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(Photo illustration: Yahoo News, photos: AP)
In late March, White House press secretary Josh Earnest disclosed to reporters that he had been in touch with aides to presidential candidate Hillary Clinton. Earnest described the communications as taking place “in the context of my best efforts to try to answer your questions” about the controversy over her use of a private email server while at the State Department.
White House officials say those kinds of consultations between communications staff on either side have continued, in the words of one aide, “so that we don’t talk at cross-purposes on emails, or Benghazi, things like that.”
On the whole, this is not that surprising. Defending Clinton’s record in office amounts to defending the administration. And there is considerable overlap between the world of the former secretary of state’s 2016 White House campaign and President Barack Obama’s political orbit.
Clinton’s communications director, Jennifer Palmieri, held that title inside Obama’s White House. They share a political pollster, Joel Benenson. Her lead spokesman, Brian Fallon, did the same job for former Attorney General Eric Holder.
Jennifer Palmieri, shown speaking with President Barack Obama when she was his communications director, is now director of communications for the 2016 Hillary Clinton presidential campaign. (Photo: Pete Souza/The White House)
But there are legal limits on political activity by federal officials, including how and how much people who work in the White House can cooperate with a presidential campaign. The core statute guiding that kind of work is the 1939 Act to Prevent Pernicious Political Activities, better known as the Hatch Act, which forbids the use of taxpayer funds for political activity and only permits a handful of federal officials to do some types of political work while on duty.
Americans over a certain age remember when then-Vice President Al Gore needed two phones: one for his official duties and a second to make political calls. But the independent agency that enforces the Hatch Act, the Office of Special Counsel (OSC), did away with that distinction in February 2000. The OSC noted that the ban on using taxpayer funds for political work could be taken to the “absurd” point of requiring federal officials to reimburse the Treasury for things like electricity, heat, and wear and tear on their furniture, and warned that this would be “unenforceable.”
It might even cost the government more to calculate how much someone owed for a specific phone call than it would cost taxpayers to simply front the call.
As a result, the OSC’s lawyers ruled, the very small number of federal employees who are exempt from the Hatch Act’s ban on political work while on duty can use phones or facilities “de minimis.” That’s a legal phrase that basically means “a very small amount,” but is also one that the OSC does not precisely define.
To stay inside what can be blurry legal lines, the White House has embraced a set of rules, overseen by the OSC, that determine who can do what, where, when, how and with whom.
Current and former White House officials emphasize that the guidelines — and therefore the sizable loopholes they come with — emanate from the OSC, not from the president’s lawyers.
Those same officials also take pains to note that the rules of engagement apply to White House contact with any political campaign, not just Clinton’s, and that they have applied in every election cycle since Obama took office.
To make sure everyone is singing from the same hymnal, Obama aides undergo a mandatory yearly briefing from the Office of White House Counsel that serves as a “booster shot” on what is allowed and what is forbidden when working at 1600 Pennsylvania Ave., several administration officials said.
“You do have to go. There’s a sign-in sheet at each briefing. You sign at the end so that you can’t just sign it and leave. No one else can sign for you,” one White House aide explained.
Staffers get an email a couple of weeks in advance offering them various time slots — the South Court Auditorium, located in the Eisenhower Executive Office Building next door to the White House, isn’t large enough to accommodate everyone at one time.
“There’s no cell reception in there, so you have no choice but to pay attention,” the White House official joked to Yahoo News.
In front of a big screen where a PowerPoint presentation reinforces their warnings, lawyers from the counsel’s office try to cover all of the bases over the course of roughly one hour.
“Someone will do political activity, someone will do ethics [of accepting gifts or invitations], someone will cover all the rest — outside employment, employment afterward, no lobbying for two years once you leave, etc.,” an Obama aide said.
It’s a complicated list of cans and cannots. Here are some of each, as described by administration officials. The Clinton campaign did not comment for this article.
Obama speaks with David Simas, director of the Office of Political Strategy and Outreach, whom he calls “the one-stop clearing house” for campaign contacts. (Photo: Pete Souza/The White House)
While the rules apply to the tiny circle of White House aides who are allowed to conduct political business at all while on duty, the point person for contact with campaigns is David Simas, who heads Obama’s Office of Political Strategy and Outreach. “He’s the one-stop clearing house,” a top Obama aide said.
Apart from Simas, some top communications aides are in relatively regular contact with their campaign counterparts.
“When it’s about, for example, a former secretary of state’s service to this administration and this White House, that’s obviously fair game,” one senior White House official told Yahoo News. “We’re not talking about her strategy to win Iowa, or when we’re going to open the Cuba embassy. We’re not tipping her off to anything or advantaging her.”
One notable rule made famous in Bill Clinton’s day is gone: Senior aides no longer use separate telephones for political work.
“That’s very Al Gore. We don’t do that,” the senior White House official quipped.
Instead, senior aides with the titles “special assistant to the president,” “deputy assistant to the president” or “assistant to the president” can “engage in political activity on campus during office hours to a limited extent,” the official said. The OSC has decreed that the White House can’t “run a war room” on the grounds, but has not defined that “limited extent” precisely — no number of hours per day or per week, for example.
Eligible White House aides can “work with constituents and political groups to, among other things, evaluate levels of support for the president’s policies and initiatives” or monitor “the political rhythms” in the country, the senior Obama aide said, citing polling as an example. They can also work with outside groups, “including her campaign or [Democratic Senate candidate] Ted Strickland’s campaign,” to plan and develop long-range strategies to achieve the president’s agenda.
A senior Obama aide not bound by the Hatch Act ban on doing some types of political work while on duty could also theoretically host a lunch-time meeting in his or her office with campaign aides — but the government could not pick up the tab for any refreshments served, and the senior official’s nonexempt staff could not be involved in any way, according to Ana Galindo-Marrone, chief of the OSC’s Hatch Act unit.
One thing that is strictly forbidden is sharing nonpublic government information.
“I wouldn’t tell either her or Ted Strickland or Jeb Bush, for that matter, if I find out that we’re opening the Cuban embassy in 10 days. I wouldn’t tell them that,” the official said.
One exception: White House officials can discuss nonpublic events or information from Clinton’s record in office with campaign officials who have the appropriate security clearance, another aide said.
So White House officials could discuss the review process for the Keystone XL pipeline with key Clinton campaign officials, but could not disclose to them when a decision is coming or what it might be.
Fundraising, the lifeblood of modern American politics, comes with its own set of rules.
“We don’t track candidate fundraising other than what’s public,” the senior officials explained. Obama aides can’t call up the Clinton campaign and ask, “What are you going to have in your next quarter?”
White House aides also can’t fundraise for a candidate — they can donate, but they can’t bundle donations or officially host fundraisers, much less ask other government officials to donate.
If they appear on a fundraiser invitation, they can’t use their White House titles. The Democratic National Committee hosted an Oct. 8, 2014, event with “special guest” Valerie Jarrett, for example. And Simas was also a “special guest” at a DNC event on Oct. 22, 2014.
Obama and Vice President Joe Biden share a joke during a Democratic campaign fundraiser for Chris Coons, left, who won the election and is now a U.S. senator from Delaware. (Photo: Susan Walsh/AP)
Because the president and vice president are exempt from that Hatch Act provision, they can appear on fundraising invitations with their titles.
Top White House officials cannot encourage political appointees to volunteer or fundraise for specific political campaigns, ask subordinates to engage in political activity, or provide briefings to agency officials or White House staff on specific races or “how we can help individual candidates.”
They are also barred from having a title or a formal advisory role on a campaign. But they “can communicate with campaign staff, including former White House colleagues, in a personal capacity,” the senior official said.
Monitoring and enforcement are on something of an honor system, backed up by the threat of “tremendous congressional oversight and scrutiny,” the aide said.
But White House officials are not required to disclose to higher-ups that they spoke to a Clinton campaign staffer or say what they discussed, for example.
There have been two notable instances of senior Obama aides facing charges of improper politicking. Former Labor Secretary Hilda Solis drew accusations that she engaged in improper fundraising by soliciting subordinates for donations to Obama’s 2012 reelection campaign. The OSC closed its probe when she stepped down to run for office in California, but had referred the matter to the Department of Justice for possible criminal investigation. And the OSC found that Health and Human Services Secretary Kathleen Sebelius had violated the Hatch Act in 2012 by endorsing a Democratic candidate in North Carolina and urging Obama’s reelection at a gala where she appeared in her official capacity.
At the White House, officials predict that they won’t add to that number in 2016. “We’re six years in. People know the rules.”