Last week, Secretary of the Navy Carlos Del Toro came under fire after he voiced support for President Joe Biden during a visit to the United Kingdom earlier this year. The U.S. Office of Special Counsel has suggested the civilian official violated the Hatch Act for statements he made that advocated for the president’s reelection and that were also critical of former President Trump.
Del Toro made those comments during a question-and-answer session and BBC interview while in the UK.
These included his stating, “I’m confident that the American people will step up to the plate come November and support President Biden for a second term as our commander-in-chief, so that we can continue to work together as free democratic countries, respect each other around the globe.”
The secretary also expressed criticism of Trump.
“My worry is that, you know, we as Americans, for as long as I can remember, certainly, since I served in uniform, you’ve had both Republican and Democratic presidents who’ve always abided by the core values of our country, protecting the freedoms of Americans and other people around the globe and protecting democracy itself. And when you have someone who doesn’t align to those core principles, it makes you wonder, you know, should you be supporting that individual?,” Del Toro suggested.
Speak Freely, Just Not in an Official Capacity
The Hatch Act, a federal law passed in 1939 – and named for Senator Carl Hatch of New Mexico, who introduced the legislation – prohibits civil-service employees in the executive branch from engaging in some forms of political activity.
Though civilian employees at the Department of Defense (DoD) are permitted to publicly back political candidates in a personal capacity, the Hatch Act bars federal officials from participating in any political activity while serving in an official capacity, including the federal workplace.
The president and vice president are exempt.
In May, the Office of Special Counsel also announced it would increase its Hatch Act oversight. Some former federal employees could face proceedings before the independent, quasi-judicial Merit Systems Protection Board (MSPB) despite their departure from government service.
“When speaking in his official capacity on a taxpayer-funded trip, Secretary Del Toro encouraged electoral support for one candidate over another in the upcoming presidential election,” Special Counsel Hampton Dellinger said in a statement Thursday. “By doing so, he crossed a legal line and violated the Hatch Act.”
Dellinger further called it “especially troubling” as “Secretary Del Toro has himself acknowledged that military work and partisan politics should not be mixed.”
The Office of Special Counsel said it has referred the matter to the White House for further appropriate action.
Political Activity in the Military
According to a report from the Navy Times, “penalties for violating the Hatch Act include removal from service, reduction in grade, a reprimand, or a civil penalty up to $1,000.
However, it has been suggested that Del Toro self-reported the incidents and that his comments were answers to questions rather than prepared statements. Moreover, Del Toro’s comments put a spotlight on how hard it can be today to show no political bias as the country remains so deeply divided.
“It’s important that the number one concern is not that military members have political leanings, they do, and they have civil rights for expression,” explained Dr. Matthew Schmidt, associate professor in the national security department at the University of New Haven.
“What is more important is that the military service members of both parties loyally,” Schmidt told ClearanceJobs. “That they execute orders on the basis of an elected official’s elected authority and not on their agreement, or belief, in, you know, the political ideology underlying those orders.”
This should also be seen as more than just the Hatch Act, but the other regulations that apply to the military.
“The idea is basically the same and the problem is that while you’re trying to express your rights as a private citizen, as you go up in rank – as you’re a general officer or an admiral – it becomes very difficult to distinguish between the personal and the public,” added Schmidt. “So you can follow the letter of the law, not wear a uniform, etc., but still quite unmistakably present yourself as providing a political opinion that’s representative of your role as an official senior leader in the military.”
This is also hardly a new problem, and it is likely to always be imperfect.
“You had, (Generals) MacArthur and Eisenhower, were they engaging in these sorts of things while in uniform,” said Schmidt. “Well, MacArthur absolutely was and there was actually no legal prohibition against it. But he illustrates the example I gave of the senior leader who is following the letter of the law but violating its spirit.”
