Good government group alleges Commerce secretary violated federal ethics law

Commerce Secretary Howard Lutnick said during a Fox Business interview on July 31 that people shouldn’t vote for Zohran Mamdani, the Democratic nominee for New York City mayor, and now a nonprofit has alleged those comments violated federal law. 

“These people in New York had better get off their butts and get out there and vote and make sure this communist doesn’t run New York City,” Lutnick told host Larry Kudlow. 

While it’s become common for Republican figures to criticize Mamdani, who is a democratic socialist, the nonprofit Citizens for Responsibility and Ethics in Washington argued in an Aug.13 complaint that Lutnick violated the Hatch Act, a law that restricts the political activity of federal officials. 

The Hatch Act prohibits civil servants from engaging in political activity, such as weighing in on an election, in their official capacity. CREW pointed out in its complaint to the Office of Special Counsel, which enforces the law, that Lutnick was identified on the news show as the Commerce secretary, the interview was primarily about President Donald Trump’s trade policy and the segment was filmed on White House grounds with the landmark visible in the background. 

“This apparent violation of the Hatch Act is part of a larger pattern of Trump administration officials’ indifference to rules and laws meant to ensure that people working in government act ethically,” said CREW Executive Director and Chief Counsel Donald Sherman in a statement. “The American people should feel confident that the Commerce secretary is looking after their interests rather than misusing his government position for partisan political gain.”

Erik Snyder, a counsel at Gilbert Employment Law, said in an interview with Government Executive that the rules are clear that political appointees cannot politick in their official capacity. 

“The secretary appears to have appeared on TV in his official capacity, he appears to have encouraged people to vote against a particular political candidate and that appears to be an attempt to affect the result of an election,” Snyder said. 

Likewise, Laura Nagel, a federal and private employment attorney with Alan Lescht and Associates, likened the complaint against Lutnick to a 2016 interview by then-Housing and Urban Development Secretary Julian Castro, where he discussed his support for then-presidential nominee Hillary Clinton, that OSC determined violated the Hatch Act. 

“OSC found that Secretary Castro’s comments were made in his official capacity even though he said he was ‘taking off my HUD hat for a second and just speaking individually’ because the interviewer used his secretary title throughout the interview, he appeared in a HUD facility with HUD’s seal behind him and he spent a substantial portion of the interview discussing HUD objectives,” Nagel said by email to Government Executive. “To determine whether Secretary Lutnick’s statement violated the Hatch Act, similar factors should be considered, such as whether he used his official title, the overall context and content of the statements or interview and the location of the interview.” 

At the time, Castro said that he thought his disclaimer that he was sharing his personal opinion was in compliance with the Hatch Act and that “when an error is made — even an inadvertent one — the error should be acknowledged.” 

The Commerce Department didn’t respond to a request for comment. Neither did the OSC, however, in the past the agency has said that it generally cannot comment on Hatch Act complaints. 

In the past year, OSC has found that former Social Security Commissioner Martin O’Malley and former Navy Secretary Carlos Del Toro violated the Hatch Act when they were still in government by criticizing Donald Trump ahead of the 2024 election during official media interviews. 

In 2019, then-Special Counsel Henry J. Kerner recommended that Trump fire his counselor Kellyanne Conway, an action he did not take, for violating the Hatch Act by repeatedly disparaging Democratic candidates in her official capacity during television interviews and on social media. 

Penalties for breaking the Hatch Act can include removal from federal service, grade reduction, ban from government employment for up to five years, suspension, reprimand or a civil penalty up to $1,000. 

The Trump administration has loosened enforcement of some Hatch Act rules, including by allowing federal employees to again wear campaign paraphernalia so long as the items are not in support of an individual who is actively running for office. 

After a legal battle, Trump in March fired Hampton Dellinger, the former OSC head who was confirmed under former President Joe Biden in 2024 for a five-year term. 

Trump’s special counsel nominee, Paul Ingrassia, was scheduled to have his confirmation hearing on July 24, but he was pulled from the agenda shortly before the meeting. Ingrassia is a former podcast host who graduated from law school in 2022, has legally and publicly defended Andrew Tate — an influencer who has been accused of rape and human trafficking in Europe — and described federal employees as “parasites” who “leech of the diminishing lifeblood of the dying republic.”