Trump’s use of border agents for wall pitch raises legal, ethical questions

The press conference with Trump and U.S. Border Patrol agents raised legal and ethical questions for reporters


By John T. Bennett
CQ-Roll Call

WASHINGTON — President Donald Trump was meeting privately with U.S. Border Patrol agents in the Oval Office Thursday when he suddenly told them, “Let’s go out, see the press.” His idea was for them to explain to reporters “the importance of the wall.” But the spectacle that ensued raises legal and ethical questions.

Experts said the president’s use of the officers in what amounted to a border barrier infomercial on afternoon cable television likely did not run astray of a 1939 law that bars most federal employees from conducting political activities while in their official roles. But they indicated other federal laws and guidelines might have been breached in just the latest example of the 45th president’s insistence on making a splash almost daily and eviscerating Washington norms that have been followed by Republican and Democratic presidents alike for decades.

President Donald Trump arrives in the Brady Press Briefing Room of the White House, followed by White House press secretary Sarah Huckabee Sanders, on Jan. 3, 2019, in Washington, D.C. (Oliver Contreras/Sipa USA/TNS)
President Donald Trump arrives in the Brady Press Briefing Room of the White House, followed by White House press secretary Sarah Huckabee Sanders, on Jan. 3, 2019, in Washington, D.C. (Oliver Contreras/Sipa USA/TNS)

During the Oval Office meeting, the president said the agents “basically said — and I think I can take the word ‘basically’ out: ‘Without a wall, you cannot have border security. Without a very strong form of barrier — call it what you will — but without a wall, you cannot have border security. It won’t work.’”

Rank-and-file federal employees almost never appear in the White House briefing room to make political statements. So it was notable that one of the officers on Thursday made a point to say the group was not there for political reasons — but to advocate for a needed public policy.

Trump turned the podium over to several of the agents, including Art Del Cueto, vice president of the National Border Patrol Council and a Border Patrol agent in Arizona.

“We are all affected by this shutdown. We have skin in the game,” Del Cueto said, referring to the agents not getting paid since it is part of the Department of Homeland Security, one of the unfunded agencies affected by the partial government shutdown. “However, it comes down to border security.

“And we are extremely grateful to President Trump, and we fully support what he is doing to take care of our nation’s borders, to take care of the future of this United States. It has nothing to do with political parties,” he said. “You all got to ask yourself this question: If I come to your home, do you want me to knock on the front door, or do you want me to climb through that window?”

Trump also brought up Brandon Judd, president of the National Border Patrol Council, who said he has been a Border Patrol agent for over two decades. Despite being a current federal employee, Judd appeared to press Congress for funding.

“I worked in Naco, Ariz., for 10 years. We didn’t have physical barriers in Naco, and illegal immigration and drug smuggling was absolutely out of control. We built those walls, those physical barriers, and illegal immigration dropped exponentially. Anywhere that you look, where we have built walls, they have worked. They have been an absolute necessity for Border Patrol agents in securing the border,” Judd said. “There’s also a lot of talk on this shutdown, that federal employees do not agree with the shutdown. I will tell you that’s not true.”

Hector Garza, vice president of the National Border Patrol Council and a Border Patrol agent in Texas, was more blunt in directly lobbying lawmakers when it was his turn at the podium.

“We want to thank President Trump for advocating for Border Patrol agents. And again, we ask our congressmen to fund border security and fund the border wall,” Garza said.

The 1939 Hatch Act prohibits most executive branch employees — except the president, vice president and a handful of others — from conducting political business while in their official capacity.

White House press secretary Sarah Huckabee Sanders frequently declines to answer questions with strictly political premises, citing that very law.

Norm Eisen, White House special counsel for ethics and government reform under former President Barack Obama, said through an assistant that he “does not believe that it was a Hatch Act violation because it was not an electoral matter, but a question of policy, and therefore, legally permissible.”

Danielle Brian, executive director of the non-partisan Project On Government Oversight, agreed the agents’ appearance and comments likely are not a direct violation of the 1939 law. But, she added, it “might be a violation of November guidance from OSC that we objected to for a number of reasons, including that it would become impossible for White House officials to speak about administration policy without violating the Hatch Act.”

She was referring to guidance issued by the United States Office of Special Counsel, which describes itself as “an independent federal investigative and prosecutorial agency.”

The problem with those guidelines and the use of the agents is the OSC “guidance went way beyond the intent of the (Hatch) Act, and this case may be a good example of why it isn’t workable. In fact the Hatch Act explicitly allows federal employees to express opinions on political subjects and issues,” Brian said.

It’s not just those guidelines that are in question. So, too, is a 1913 federal anti-lobbying law.

“In this case it might also violate the grassroots lobbying ban that prohibits federal employees from urging the public to weigh in on congressional funding,” Brian said.

That 1913 law states that “no part of the money appropriated by any enactment of Congress shall, in the absence of express authorization by Congress, be used directly or indirectly to pay for any personal service, advertisement, telegram, telephone, letter, printed or written matter, or other device, intended or designed to influence in any manner a member of Congress.”

A White House spokeswoman did not respond to multiple requests for comment, including a Friday question about whether the agents’ appearance and comments were cleared by White House ethics and legal experts or ones at the Department of Homeland Security.

Emails to two senior U.S. Customs and Border Protection spokesmen were answered by out-of-office messages saying they both are furloughed due to the ongoing partial government shutdown. (The U.S. Border Patrol is a component of USCBP, which is a component of DHS, which was cobbled together after 9/11.)

Even if no laws or other guidelines were violated, Virginia Canter, chief ethics counsel for the non-partisan group Citizens for Responsibility and Ethics in Washington said the episode “raises questions about whether Trump has once again undermined certain government ‘norms.’”

“In particular, career Border Patrol officers are expected to carry out their official duties and perform law enforcement functions. The president’s political appointees are appointed to develop and promote his policy goals,” Canter said. “Trump’s use of career border patrol officers in the White House briefing room takes them away from their legitimate law enforcement duties in a desperate attempt to promote his political agenda.”

The president’s first appearance in the briefing room flanked by wall-advocating federal workers could raise eyebrows among House Democrats. They took control of the chamber on Thursday and are gearing up for a slew of investigations of Trump’s 2016 campaign and his time in office. The episode could become just one more piece of fodder for those probes.

On Thursday, however, a senior White House official warned Democrats to tread lightly with those investigations if they want to collaborate with Trump on things like infrastructure legislation, which he later in the day again said is something on which he wants to partner with Pelosi this year.

“If the Democrats go down that losing pathway of just focusing on subpoenas,” White House Strategic Communications Director Mercedes Schlapp told reporters, “I think it will hurt them in the long run.”

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