DeVos would become one of the most high-profile Trump officials known to have been investigated for violating the Hatch Act. Depending on what OSC finds, she would be the second member of the Trump Cabinet to be found to have violated the law. At least 12 Trump senior officials have violated the Hatch Act, according to the OSC, the independent agency that probes possible violations. In most cases, the office decided that the violation was minor enough to merit only a warning letter. Only one case, that of former senior counselor Kellyanne Conway, was sent to President Donald Trump for action, and he didn’t act on it.

DeVos criticized Biden on Fox in the interview, which is also posted on the Education Department’s YouTube page, in early September when she was asked about Biden’s promise to roll back DeVos’ school choice policies, some of which he previously supported in the late 1990s.

“Today he’s turned his back on the kids that we’re talking about and he’s turned his face in favor of the teachers union and what they have to say and what they have to demand and it’s really shameful,” she told the interviewer. The Education Department also blasted out a link to the Fox News clip with the attack on Biden to an official email distribution list under the heading “From the Desk of The Secretary.”

The Hatch Act prohibits most political activity by federal employees, but the Trump administration hasn’t paid much attention to it, even hosting parts of the Republican National Convention at the White House with multiple Cabinet members giving primetime addresses.

Prior to the phone call, Johnson had emailed Peterson and told him that it “will open a file to address this matter,” a routine step that it takes with every complaint but which doesn’t indicate that an investigation is underway.

Angela Morabito, an Education Department spokesperson, said the complaint was “a classic statement” of an allegation not being based in fact.

“The Secretary was asked to respond to oft-repeated criticism of her and her policies, and she defended her policies, including discussing the history of that criticism,” she said in a statement. “The Hatch Act does not prohibit that kind of exchange with a journalist. Case closed. Of course, we will cooperate with OSC, should they choose to open an investigation of this frivolous complaint.”

Zachary Kurz, an OSC spokesperson, said in a statement that “OSC generally cannot comment on or confirm the status of Hatch Act investigations.” Johnson didn’t respond to a request for comment.

Checks and Balances Project has triggered two inspector general investigations into potential influence peddling during the Keystone Pipeline debate and an FBI probe into influence peddling in an Arizona public utility commission. It’s largely funded by the 501(c)(4) Renew American Prosperity, but it also receives money from clean energy groups and donors.

The Office of Special Counsel is an independent agency tasked with investigating the Hatch Act, and the office is not affiliated with special counsel Robert Mueller‘s prior investigation of Russian interference in the 2016 election. Depending on the case and person, OSC can discipline staffers, while others go to the Merit Systems Protection Board, and still more go to an employee’s supervisor, like Trump for Conway.

Prior to 2012, Hatch Act violators, who can be political appointees or career civil servants, often faced a severe punishment: getting fired. But now they may face a variety of lesser penalties, including fines, demotions, suspensions or being barred from federal government work for a period of time, although Trump appointees have generally experienced severe punishment.

During the Obama administration, two cabinet secretaries were found to have violated the Hatch Act: Housing and Urban Development chief Julián Castro and Health and Human Services Secretary Kathleen Sebelius.

DeVos has long been an advocate for school choice policies, which Trump’s campaign has said is a priority policy issue for a second term.

She has argued that the coronavirus pandemic, which has kept a huge swath of schools from hosting in-person classes across the country, has bolstered the argument for why parents should receive government funding to choose the type of school they want their children to attend. The latest Senate GOP stimulus plan, which failed to clear a procedural obstacle last week, included DeVos-backed school choice provisions.

But at the same time, DeVos, who is among the most controversial members of Trump’s Cabinet, was absent from any speaking role at the RNC last month even though many speakers brought up her signature issue.

DeVos, a billionaire and longtime GOP mega-donor, agreed to stop making political contributions during her tenure as education secretary. But she has engaged in some political activity since her confirmation. She served as a campaign surrogate for Trump during the Iowa caucuses earlier this year and also appeared at a Women for Trump rally in Pennsylvania in February.

Last week, her former chief of staff, Josh Venable, joined another former Trump administration official’s group opposing the president.

Anita Kumar contributed to this report.