The Office of Special Counsel (OSC) erred when it decided that White House advisor and President Donald Trump‘s son-in-law Jared Kushner did not violate the Hatch Act, a federal law which prohibits electioneering activities by executive branch employees, according to a government watchdog group.

On Thursday, Citizens for Responsibility and Ethics in Washington (CREW) sent an open letter to OSC Henry Kerner calling for his agency to reopen their investigation of Kushner’s February appearance on CNN with host Fareed Zakaria.

The letter accuses OSC of straying far from their oversight mandate and claims the agency operated using a “flawed line of reasoning.”

“OSC’s conclusion did not flow from its findings of fact,” CREW alleges. “Most troubling was OSC’s refusal to consider some of [Kushner’s] remarks because, instead of airing them on television, CNN published them in an article—an approach to Hatch Act enforcement for which there is no basis in the law.”

CREW initially called for the OSC investigation into Ivanka Trump‘s husband in early February after he allegedly “advocated for the Trump campaign while appearing in his official capacity on behalf of the Trump administration” by talking up Trump’s polling numbers and imploring viewers to recognize the 45th president’s accomplishments viz. the economy and national security.

The original CREW/OSC complaint notes:

Mr. Kushner appeared on screen above a chyron that identified him as “Senior Adviser to President Trump” but characterized him as talking about “Trump’s Reelection.” His language was that of campaign rhetoric, which included a direct appeal to voters: “And as an American, whether you voted for the president or you didn’t vote for him, I think you can be very proud that you have a president who shows up every day at work, trying to make the country stronger, make our economy better, make our country richer and keeping our country safe.” At one point, he seemed to be trying to build enthusiasm for President Trump’s campaign rallies…

In the end, OSC declined to level sanctions against Kushner–largely on the basis that portions of the interview were not actually aired on television and instead appeared in an online article published by CNN.

CREW dismissed the OSC’s legal argument as “contrary to the law.”

“This is the type of statement OSC would advise an employee against making when speaking in his official capacity,” OSC acknowledged in their response to CREW’s Executive Director Noah Bookbinder which determined “OSC cannot factor it into the analysis” of whether Kushner violated the Hatch Act because it “does not appear in either the aired interview or the transcript of the interview.”

Notably, the OSC did agree with the nonprofit watchdog that Kushner appeared in his official capacity and that some of his comments were unacceptable attempts by someone in his position to influence an election–but the oversight agency still decided against prosecuting the presidential son-in-law.

“Nothing in the Hatch Act provides that an executive branch employee’s words can violate the law only if they are released in the form of video or a transcript of a video,” the watchdog’s Thursday letter notes. “To the contrary, OSC has found other employees guilty of Hatch Act violations based on written remarks.”

“For example, OSC recently determined that one employee violated the law by including a single comment in a PowerPoint presentation for his coworkers,” CREW continued. “In another recent case, OSC determined that an employee violated the law by sending emails to coworkers and posting remarks on his personal Facebook account.”

The letter went on to compare those cases with Kushner’s:

OSC has not indicated how many coworkers or friends saw the PowerPoint presentation, emails and Facebook posts in these cases, but the article about Mr. Kushner’s interview undoubtedly reached a vastly greater audience. CNN’s online content receives over 200 million unique visitors each month. This volume exceeds even that of major newspapers, which publish behind paywalls, like the New York Times, with its 4.4 million digital subscribers, and the Wall Street Journal, with its 2 million digital subscribers.

“We encourage OSC to treat Mr. Kushner the same as it has treated other executive branch employees whose unlawful political remarks were released in written form,” the request concludes.

Read CREW’s full open letter below:

CREW OSC Kushner Request by Law&Crime on Scribd

[image via Saul Loeb/AFP/Getty Images]

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