OSC argues it has no authority to seek a fine against a presidential appointee like Kelleyanne Conway, but DOJ is suing Omarosa Manigault Newman for a fine. Why? Because the executive branch believes presidential appointees aren't exempt from fines related to their employment.

The White House itself imposed a $200 fine on another presidential appointee, Jared Kushner, when he missed the deadline for filing a financial disclosure report. Presidential appointees are not exempt from fines for violating ethics laws like the Hatch Act.

OSC's argument is that 3 U.S.C. § 105(a) exempts presidential appointees from any other law affecting their employment. The Office of Legal Counsel has expressly rejected this idea with regard to the Hatch Act Reform Amendments (HARA), which was enacted after 3 U.S.C. § 105(a).

In the 1/20/17 opinion that authorized Jared Kushner's hiring, OLC emphasized that the term "employee" in the post-HARA Hatch Act included White House presidential appointees. And, following HARA, an "employee" is subject to fines. (Maybe even firing, but I'll settle for a fine.)

The language on which OSC relies says POTUS can appoint WH staff "without regard to any other provision of law regulating the employment or compensation of persons in the Government service." But the term "employment" here means the act of employing (i.e., hiring/retaining).

OLC's opinion makes that clear. OSC knows this too. If that weren't true, OSC wouldn't have been able to find Conway guilty of violating 5 USC 7323, which establishes restrictions on her employment--in the sense of the terms of her employment as opposed to her hiring/firing.

If Conway was covered by 7323, it's because she met the definition of employee in 7322. And if she met that definition, she's subject to the penalties under 7326--at least those that don't require her hiring or firing, which is restricted by the language of 3 USC 105.

Thus, while the MSPB probably couldn't fire her or any other White House appointee, it could reprimand her and them. It could also fine them. AND, hold onto your hat for this next one, it could debar them from future government employment.

Now, wait a minute Walt, that's crazy, you say. Ah, but it's not. You may be thinking that OSC couldn't ask the MSPB to debar Conway from future govt employment because that would intrude on the President's constitutional authority to hire her in the future. But. . .

The same could be said of Lynne Patton. Can OSC or the MSPB tell Joe Biden he can't hire Patton if he wants? No. Of course not. Biden could appoint Patton as an Assistant to the President tomorrow. But the HUD Secretary couldn't hire her. OSC could've done the same with Conway.

That's because debarment doesn't affect the President's right to hire/fire. It affects every other government official's right to hire/fire. Thus, OSC has barred every government official not named Joe Biden from hiring Patton, and it could have done the same to Conway.

Given how obvious this is, OSC owes us an explanation as to why they went after Patton and not Conway--or any other political appointee in the last 43 years. Because the optics are just terrible.

Just to elaborate on my point that "employment" refers to hiring/firing and not rules for employees, the law authorizes the president to do only two things: "appoint" and "fix the pay of" aides without regard to other restrictions. It doesn't say "and let them run amok."

By the way, don't worry if this thread is too arcane and full of legal mumbo jumbo. My other tweets are in plain English. This thread was really for the lawyers at OSC who are sitting around reading my tweets this week and for legal reporters studying this matter.