McEnany, who left her job as Trump campaign spokesperson to join the administration, was introduced in a Tuesday segment on Fox Business as "Trump 2020 senior adviser and White House press secretary." During a second appearance on the same day, Fox Business Network host Stuart Varney said the press secretary was "serving now as adviser for the Trump campaign" as he introduced her with an image of both the White House and the Trump campaign logo behind her.
A Trump campaign spokesperson told Salon that the campaign had instructed the cable news shows not to refer to McEnany with her White House title in advance.
The new shadow role, which the Daily Beast first reported on Tuesday, triggered criticism among government ethics watchdogs, who pinned it as a continuation of the history of the intercourse between Trump's government administration and his ostensibly separate political arm.
"People will probably be surprised to learn that both the Federal Election Commission [FEC] and the Hatch Act allow White House employees to campaign for federal candidates as long as they do it on their own time and don't use any White House resources," Brett Kappel, a top government ethics expert and attorney at Harmon Curran, told Salon in reference to the federal rule that bars government employees from politicking on the clock.
However, Kappel added that the nature of McEnany's duties at the White House — including on-demand rapid-response to urgent news and regular media interviews — made it difficult to draw the line.
"Given that working in the White House is a 24/7 proposition," he said, "it is hard to see how it would be possible to maintain the separation required by the Hatch Act."
Jordan Libowitz, spokesperson for Citizens for Responsibility and Ethics in Washington (CREW), echoed Kappel's point.
"People like Kayleigh McEnany can volunteer for the campaign, but obviously cannot appear for the campaign in their official government capacity or using their government authority," Libowitz told Salon. "Since she's essentially providing the same role for each, it raises questions about what efforts she is taking to prevent government resources from being used for her campaign activity."
"Ultimately, I think we need a little more information about what's going on here," he added. "But I've never seen something like this before."
A Trump campaign spokesperson confirmed to Salon that McEnany "appears in her personal capacity on a volunteer basis," and she speaks only "as a private citizen" unrelated to her White House role.
But on Varney's show, McEnany discussed official administration policy, including offering insight to elements that "we're providing" in the ongoing negotiations for a new coronavirus relief bill.
"The chances are slim when you have someone like Nancy Pelosi as speaker of the House," she said. "If we're providing stimulus relief for the American people, it should be just that — for American people, for United States citizens — not a wish-list from the liberal left."
The White House has caught relentless flak from ethics advocates for repeated violations of the Hatch Act, most recently for hosting the extravagant Republican National Convention in August, in which numerous administration officials stumped for the president, who himself accepted the party's nomination from the White House lawn.
Former senior White House adviser Kellyanne Conway had been accused of violating the rule 50 times on Twitter alone — before 2019 — a pattern so brazen that the Office of Special Counsel recommended her removal. The White House, which appears to bask in the controversy stirred by Hatch-related controversies, declined to act.
While the White House waived McEnany's ethics pledge ahead of her Republican National Committee appearance, Kedric Payne, the general counsel and senior ethics director at the Campaign Legal Center, told Salon that her role as former campaign spokesperson complicated that rationale — and smacked of desperation.
"White House officials are generally permitted to volunteer for the campaign, but McEnany's ethics pledge was intended to bar her from working with the campaign because it is her former employer," Payne said. "The overlooked legal rationale the White House gave for waiving the pledge is that it doesn't matter that this raises ethics questions, because her services are desperately needed. Ethics does not appear to be the priority this close to an election."
In July, Salon reported that the campaign had continued to pay McEnany for two paycheck cycles after she went to work for the White House. McEnany and the campaign insisted that the funds had been restored and properly accounted for, in spite of Salon's joint review of the campaign's filings with campaign finance experts.
"The campaign overpaid me, and I immediately paid them back," McEnany said, claiming that "every penny has been paid back in the overlap." Neither McEnany nor the campaign provided documentation that the campaign had received the money.
"Campaign funds are meant for bona fide campaign expenditures," Ciarra Torres-Spelliscy, campaign finance law expert at Stetson University and former fellow at Brennan Center for Justice, told Salon at the time.
But Torres-Spelliscy,pointed out exceptions. For instance, 18 U.S.C. § 209 — "Salary of Government officials and employees payable only by United States" — prohibits officials and employees of the U.S. government from being paid "by someone other than the United States for doing their official Government duties," but it includes a carveout for "special government employees" and "employees serving without compensation."
Such examples include former Ambassador Kurt Volker, who served the administration as an unpaid "special envoy" to Ukraine while keeping his full salary as an executive at the lobbying firm BGR. McEnany's dual roles reverse that arrangement: serving the administration in a paid capacity while volunteering outside of it.
Weeks after Salon published its July 27 report, a refund from McEnany dated mid-July appeared in the Trump campaign's financial statements filed with Federal Election Commission at the end of that month. Salon asked the campaign to explain the 10-week lag between McEnany's alleged repayment and the campaign's documentation but received no response.
Two campaign finance experts told Salon that given data included with the filing itself, the entry might have been backdated, but allowed that a set of unusual but still-unknown circumstances could explain it.
The campaign has still not provided documentation to Salon.
You can watch McEnany's appearance on Fox Business below via YouTube: