For more than a year, a federal ethics agency has instructed federal employees to steer clear of taking a stand at work for or against the impeachment of President Donald Trump, saying that doing so could run afoul of the Hatch Act that bars them from participating in certain political activities.
With Trump now impeached and the subject of a Senate trial, a union representing federal employees says that the controversial legal guidance from the Office of Special Counsel (OSC) tramples on workers’ First Amendment rights.
As part of a lawsuit that began last year, the American Federation of Government Employees (AFGE) filed an emergency motion in federal court last Friday asking a judge to block the guidance with an injunction. The union argues that the OSC, an independent agency now headed by a Trump appointee, has misread the Hatch Act in a way that’s created a “chilling effect” among federal employees.
Impeachment is “all that’s in the news,” Ward Morrow, AFGE’s assistant general counsel, told HuffPost. “If you’re going to enforce [the OSC] advisory in the conditions we have now, they’ll be investigating employees for the next 100 years. It’s all anybody is talking about, especially in Washington.”
AFGE has been waging its legal fight with an assist from American Oversight, a non-profit watchdog group founded by former Obama staffers that’s been hounding the Trump administration over conflicts of interest.
Generally speaking, the Hatch Act, which dates to 1939, forbids most federal workers from engaging in electoral politics while on the clock or in their official capacity. While employees can make political donations or sign up new voters on their own time, they can’t urge their underlings to donate to someone’s reelection bid or pass out a candidate’s literature during the morning meeting.
The restrictions tend to boil down to advancing a candidate or party, and that’s where AFGE said the OSC misses the mark. The guidance, first reported by The Washington Post in 2018, argues that impeachment amounts to electoral politics because it can result in a president being barred from holding federal office ― i.e., that impeachment amounts to a scuttled reelection bid.
If you’re going to enforce [the OSC] advisory in the conditions we have now, they’ll be investigating employees for the next hundred years. Ward Morrow, AFGE
But impeachment is a legislative process playing out in Congress, with the House sending charges ― in this case, that Trump abused his office and obstructed a congressional inquiry ― to the Senate for a trial.
Morrow said that, for the purposes of the Hatch Act, supporting or opposing impeachment is no different from supporting or opposing a spending bill being debated on the Senate floor. He added that someone’s views about witnesses being called in the Senate impeachment trial ― a key issue the chamber has yet to decide ― may have nothing to do with partisan politics.
The legal guidance drew enough heat immediately after it was released in November 2018 that the OSC quickly tried to clarify it, as Federal News Network reported at the time. But AFGE said the followup guidance only created confusion.
The clarification stated that it didn’t intend “to prevent all discussions of impeachment in the federal workplace.” For instance, it would be acceptable to “discuss whether reported conduct by the president warrants impeachment,” but it would not be acceptable to “advocate” for impeachment. One example of off-limits behavior would be displaying an ”#Impeach45″ poster at work.
AFGE said the line between proper and improper speech is unclear enough to muzzle workers entirely on the impeachment issue, for fear of prompting a Hatch Act investigation. Two workers at the National Archives and Records Administration filed declarations as part of the lawsuit: One in Maryland who wants to express views on impeachment, and another in Missouri who wants to be able to use the term “resistance.”
The OSC’s legal guidance states that using the terms “resist” and “resistance” in relation to Trump could be a violation of the Hatch Act, since the words are “inextricably linked with the electoral success (or failure) of the president.” AFGE argues that those terms are not necessarily political, unlike a formal campaign slogan such as “Make America Great Again.”
AFGE and American Oversight filed a lawsuit over the legal guidance last August, but they are now asking for an injunction because of timeliness concerns.
As Morrow put it, “If they decide a year from now that it would be okay to talk about impeachment, you can’t go back in time” to when the president was the subject of the current trial.