The federal watchdog who has issued warnings to two senior White House officials over inappropriate uses of their offices for political purposes was formally nominated for a new post on July 12. If approved by the Senate, the nomination would move Henry Kerner, the current head of the U.S. Office of Special Counsel, to a more senior role, and allow President Joe Biden to name a new person to the position. Kerner’s five-year term ended last year, and he can’t be extended past October.
The federal government is full of seemingly obscure bureaucratic posts that the public only hears about in times of controversy. The vaguely named U.S. Office of Special Counsel is one, housing career investigators who protect whistleblowers and call out White House officials, cabinet secretaries and federal officials when they use the power of their offices for political purposes in violation of the Hatch Act.
Kerner is a lawyer who worked as a prosecutor in California and as a Republican congressional investigator before being named to his post by Donald Trump in 2017. Kerner’s office wrote up a dozen Trump aides for Hatch Act warnings during Trump’s four years in office. He also recommended Trump’s senior counselor and 2016 campaign manager Kellyanne Conway be disciplined for promoting the Republican Senate Candidate Roy Moore in the 2017 special election in Alabama. At the time, Conway mocked how little teeth were in the special counsel’s directives, saying, “Let me know when the jail sentence starts.”
When Biden came to office in early 2021, Kerner stayed in place. Biden gave his staff strict instructions to follow the Hatch Act and avoid the repeated and flagrant violations from the Trump years.
But, despite the sanctimony Biden officials have brought to the West Wing, in recent months Kerner has irked Biden White House aides by rebuking Biden’s former Chief of Staff Ron Klain for posting on his official Twitter account a message to buy political merchandise for a Democratic group, and warning that White House Press Secretary Karine Jean-Pierre had violated the Hatch Act for using the Trump-era slogan MAGA in the press briefing room to describe Republican policies in the run up to the midterm elections.
Kerner also called out Health and Human Services Secretary Xavier Becerra for saying during an official speech in September that he intended to vote for incumbent Senator Alex Padilla of California, a fellow Democrat. Secretary of Housing and Urban Development Marcia Fudge crossed the line in 2021 when she commented on Ohio politics while speaking to reporters in White House press briefing room.
Now Biden has nominated Kerner to move out of his job.
Kerner has been named to fill an empty seat on the bipartisan body that oversees his current office, the obliquely named U.S. Merit Systems Protection Board. Republican congressional leadership put Kerner’s name forward for the job. His nomination was formally received by the Senate on July 12.
The Merit Systems Protection Board was created in 1978 as part of a massive overhaul of the civil service led by President Jimmy Carter that was designed to protect the federal workforce from political retaliation and interference. The three-person, bipartisan board hears appeals from federal employees who believe they’ve been targeted by arbitrary or politically-motivated actions.
“I really appreciate the White House putting my name forward,” Kerner told TIME in a phone interview. “They do their own vetting, obviously, and appointing people in the other party is never easy, so my gratitude to the White House and my gratitude to the Senate leadership, to the Republican leadership for having faith in me. I hope the Senate will consider my nomination and I look forward to the confirmation process.”
Kerner said that while he’s been in the role running the Office of Special Counsel, he’s wanted to show that the office “can do independent, objective, nonpartisan and fair investigations, and we can treat everyone that way.” By a quirk of the federal pay scales, he’d end up taking a pay cut in the new post. His current role pays $168,000 and as a member of the Merit Service Protection Board he’d earn $158,000, he said.
If Kerner leaves the Office of Special Counsel, the current principal deputy special counsel, Nicole Brightbill, would become the acting head of the office, Kerner says. Biden could then decide whether to leave Brightbill in place, or nominate someone else for the role.
The potential turnover at the administration’s Hatch Act watchdog comes at a moment when Donald Trump’s pitch to voters includes gutting the federal service to clear away the roadblocks to his political aims. Trump has said in speeches that he’d want to impose changes that would make executive branch employees fireable by the President, the exact types of actions the Office of Special Counsel and Merit Service Protection Board were set up to prevent.
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