Read the new Hatch Act guidance.
Federal Employees Are Warned Not to Discuss Trump ‘Resistance’ at Work
New York Times, November 29, 2018, By Charlie Savage
WASHINGTON — At workplaces across the United States, it is routine for Americans’ conversations to turn to President Trump — whether his policies are good, whether he should be impeached, what to think about the “resistance.” Some drink from MAGA mugs; others tape cartoons to their cubicle walls portraying Mr. Trump as a Russian quisling.
But roughly two million people who work for the federal government have now been told that it may be illegal for them to participate in such discussions at work — a pronouncement that legal specialists say breaks new ground, and that some criticized as going too far.
Generally, federal employees have been free to express opinions about policies and legislative activity at work as long as they do not advocate voting for or against particular candidates in partisan elections. But in a guidance document distributed on Wednesday, the independent agency that enforces the Hatch Act, a law that bars federal employees from taking part in partisan political campaigns at work or in an official capacity, warned that making or displaying statements at work about impeaching or resisting Mr. Trump is likely to amount to illegal political activity.
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 agency, led by Henry Kerner, is not related to Robert S. Mueller III, the special counsel appointed by the Justice Department to investigate whether the Trump campaign conspired with Russia during its interference in the 2016 election.)
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.”
And while impeachment is primarily about removing a president from office, the agency said that because a removed president would also apparently become disqualified from holding federal office in the future, supporting or opposing Mr. Trump’s impeachment amounts to taking a stand on his potential re-election.
“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.”
Several legal specialists raised concerns about the new guidance, warning that it would intimidate people into avoiding even casual discussions with colleagues that should not be deemed banned by the statute.
“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.
Still, Jeff Ruch, the executive director of Public Employees for Environmental Responsibility, which works to protect environmental officials amid shifting political winds, noted that the Supreme Court has limited the First Amendment protections for speech by government workers while they are on duty. And he said he thought the warning was a fair interpretation of what the law means, although he said he was not happy about the state of the law.
Ana Galindo-Marrone, the chief of the Office of Special Counsel’s Hatch Act unit since 2000, said she and her deputy came up with the interpretation after receiving numerous questions about the rules. She argued that the guidance fit within the office’s past interpretations, while noting that Mr. Trump’s presidency has raised new wrinkles: The two presidents subjected to impeachment proceedings since the Hatch Act became law, Richard M. Nixon and Bill Clinton, were in their second terms and so ineligible to run for president again anyway.
Ms. Galindo-Marrone also said the Hatch Act often raises “gray area” situations, in which investigators have to carefully consider all the facts and circumstances before deciding whether a line has been crossed. She contrasted what she deemed the clear case of someone who displays a sign or button that says “Impeach Trump” at work with the murkier case of someone who says that while discussing the news with a colleague over lunch in a federal building.
Still, Kathleen Clark, a law professor at Washington University in St. Louis who specializes in government ethics issues, criticized the idea of bootstrapping the notion of impeachment to the 2020 election at all.
“This goes beyond past guidance about what partisan political activity is, and is more restrictive of speech of federal employees than past guidance that I’ve been able to find,” she said, adding: “I think their legal analysis is wrong in this attempt to outlaw all discussion of impeachment of Trump in the federal workplace. Maybe that is a good idea, maybe that is a bad idea, but I don’t think that is what the Hatch Act requires.”
New warning to federal employees: No talk of ‘Resistance’ or opinions about impeachment at work
Washington Post, November 29, 2018, By Eli Rosenberg
In a move that some ethics advocates say could be an opening to limit dissent, the federal government has issued a new guidance for the political activity of federal government workers, warning that weighing in on impeachment or talking about “the Resistance” may constitute prohibited activity.
The Office of Special Counsel is charged with enforcing the Hatch Act, which prohibits federal employees from engaging in political activity in the course of their work. The office, not to be confused with special counsel Robert S. Mueller III’s investigation, is run by Henry Kerner, whom President Trump nominated to the post.
The unsigned “Guidance Regarding Political Activity,” which was issued on Tuesday, uses a question-and-answer format as it seeks to clarify the types of actions and rhetoric considered political activity, and therefore prohibited at work.
In a nod to the current climate, it stipulated that advocating for or against impeachment of a candidate for federal office would be considered political because of its implications for future elections, and that any use of terms like “resistance” and “#resist” would be construed as political activity.
But some government watchdogs said they feared the guidelines could have wide-ranging effects on the nearly 3 million federal employees in the United States, as well as state and local government employees who work with federally funded programs. The ethics nonprofit American Oversight said the guidance raised “significant concerns” in a letter it sent to the office on Thursday, urging it to withdraw the memo.
“OSC’s position on impeachment advocacy or opinions goes too far,” the group’s executive director, Austin Evers, wrote in the letter, adding that “certainly there is a difference between advocating that an official should (or should not) be elected and advocating that an official did (or did not) commit treason or high crimes and misdemeanors under the Constitution.”
NEW: Office of Special Counsel (not Mueller) Hatch Act guidance effectively bans federal employees from advocating for impeachment or using the words “resist” or “resistance” to oppose administration policies. We’re calling on OSC to rescind the guidance: https://t.co/AZuRXZo1Rn pic.twitter.com/lG1kSZcjER
— American Oversight (@weareoversight) November 29, 2018
In particular, Evers expressed concern that the guidelines could constrain whistle-blowers.
“As OSC knows well, it is critically important to ensure public employees are comfortable raising concerns about waste, fraud, or abuse in the government,” he wrote. “Impeachment is primarily a remedy for severe misconduct. If public employees are aware of conduct that could be impeachable but fear civil or criminal liability under the Hatch Act for saying so, they may be reluctant to approach OSA, inspectors general, or Congress.”
Nick Schwellenbach, the director of investigations at the Project on Government Oversight and an employee of the OSC from 2014 to 2017, said he felt the guidance likely crossed a legal line, saying the Hatch Act was meant to be narrowly focused on political activities around parties and candidates.
“The way OSC has traditionally balanced its enforcement of that statute with the First Amendment is [focused on] supporting a candidate or political party for election. I think once you start talking about more general political views, you’re starting to infringe upon people’s rights,” he said. “This one, I think, goes too far for them. It runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”
Schwellenbach said he believed the guidance could be successfully challenged in court on its constitutionality.
Norm Eisen, a senior fellow at Brookings and the former top ethics lawyer in the Obama White House, said he found the guidance “very peculiar.”
“It’s contrary to my understanding of the Hatch Act and its interpretation, which is confined to what’s more commonly understood as political activity — vote for or against a candidate,” he said. “This infringes into policy questions.”
He too said he feared it could have a chilling effect on the First Amendment rights of government employees and said he thought a legal challenge could be successful.
“I do have to take exception to this advice and I hope they’ll reconsider,” he said.
The Office of Special Counsel did not return an immediate request for comment.