Federal Employees Warned That Some Speech Is Not Permitted

The Office of Special Counsel (not Bob Mueller’s shop) which is charged with enforcing the Hatch Act nationwide, has a message for all those federal employees discussing #Resist and resistance to the president at work: you might be breaking the law.

The guidance was issued by the Office of Special Counsel, an independent agency that enforces the Hatch Act, including by investigating complaints of improper political activity and recommending discipline — like a reprimand or firing — for violators. The agency also enforces the Hatch Act against state and local government officials whose salaries come from federal grants….

The reasoning behind the guidance centers on the fact that Mr. Trump is already running for re-election in 2020. It contends that arguments about his policies or impeachment prospects are effectively statements in support or opposition to his campaign.

“We understand that the ‘resistance’ and ‘#resist’ originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies,” the guidance said. “However, ‘resistance,’ ‘#resist’ and similar terms have become inextricably linked with the electoral success (or failure) of the president.”

So, those who are into #resist should cease and desist.

Got it.

The reality is that within the federal government, both elected and not, there is a movement afoot to impeach the president for…well, anything. The Office of Special Counsel is warning against this effort that may be going forward without cause.

“Advocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office,” the guidance said. “Similarly, advocating against a candidate’s impeachment is activity directed at maintaining that candidate’s eligibility for federal office and therefore also considered political activity.”

Legal eagles are debating the appropriateness of this guidance with an eye on the First Amendment. How far the Office of Special Counsel can go with limiting speech in the office seems to be the nexus.

“A large number of federal employees voted for Trump, but even they may disagree with him on specific policies and want to express that,” said J. Ward Morrow, assistant general counsel for the American Federation of Government Employees, a union that represents about 700,000 such workers. He added, “If they are going to go after anyone who mentions the word ‘impeachment’ in emails to co-workers, that will be overreach.”

Daniel Jacobson, who fielded Hatch Act questions as a White House lawyer in the Obama administration, called the new interpretation “overly broad,” collapsing expressions of opposition or support for Mr. Trump’s actions into campaign activity, even when the speaker is not thinking about the 2020 campaign.

“People who use the term ‘resist’ could be expressing views about any number of matters, and the presumption that they are specifically advocating for the defeat of a candidate in 2020 strikes me as crazy and raises significant First Amendment concerns,” he said.

We’ll see how this plays out. In the meantime, federal workers would be well advised to keep their mouths shut about any sort of sedition.


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