Are Federal Employees Barred from Discussing Impeachment and “The Resistance”?

The office charged with keeping the federal government’s career employees nonpartisan issued guidance that has been criticized as overly broad and potentially unconstitutional.

  • Published 7 December 2018
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On 27 November 2018, the U.S. Office of Special Counsel (OSC, a wholly different entity than Robert Mueller’s office at the Department of Justice) issued guidance on what kinds of actions constitute political activity now that President Trump is considered by that office to be a candidate for re-election. The Office of Special Counsel, which is currently run by Trump appointee Henry Kerner, is in charge of (among other things) enforcing the Hatch Act, described as follows:

The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.

“By way of background,” OSC stated in a summary of the guidance, “in March 2018 OSC determined that President Trump was a candidate for reelection [and that employees on duty in the federal workplace] may not engage in activity directed toward the success or failure of President Trump’s reelection campaign.”

The memo arrived at two controversial conclusions: 1) that “any advocacy for or against an effort to impeach a candidate is squarely within the definition of political activity for purposes of the Hatch Act,” and 2) “[as it] relates to resistance to President Donald J. Trump, usage of the terms “resistance,” “#resist,” and derivatives thereof is political activity.”

The argument made by OSC for restricting discussion of impeachment was that by advocating for impeachment, one would be implicitly advocating against the viability of a candidate’s reelection campaign, as impeachment could constitutionally bar that person from running for office again:

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. 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.

Similarly, OSC’s argument against “resistance” language stemmed from that office’s assertion that the terms were understood and known to be associated with campaigns against President Trump’s re-election:

“Resistance,” “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise.

Several legal experts, advocacy groups, and officials with federal employee unions have objected to these interpretations, fearing a stifling of free speech and the potential for political intimidation.

In a statement, National Treasury Employees Union President Tony Reardon suggested that the new guidance “could unnecessarily have a chilling effect on employees’ First Amendment free speech.” Reardon noted that the Hatch Act prohibits federal employees from engaging in activities aimed at bolstering or undermining partisan political candidates or parties. “That prohibition has always been a fact-specific analysis in which the employee’s intent is relevant,” Reardon said. “This new guidance goes too far because it eliminates that critical factor.”

The interpretation of impeachment talk is what has generated the most controversy. In a 29 November 2018 open letter, American Oversight, a “non-partisan, nonprofit ethics watchdog” run by former Obama administration officials, argued that:

[T]here is a difference between advocating for or against an official’s election (prohibited by the Hatch Act) and advocating that an official did or did not commit treason or high crimes (impeachable under the Constitution). OSC’s guidance suggests the opposite, arguing that since impeachment bars offenders from future public service it is the same as arguing that an official should not be re-elected.

This same argument was echoed in a 4 December 2018 Washington Post opinion piece by former government ethics lawyer and law professor Kathleen Clark:

The OSC has overreached in attempting to ban advocacy for or against impeachment from the federal workplace. Impeachment is not inextricably linked with disqualification from future office, nor is advocacy of Trump’s impeachment “clearly directed at the failure of” Trump’s reelection campaign, as the OSC asserted.

In response to these lines of criticism, the OSC released a “clarification” statement on 30 November 2018 that aimed to draw a distinction between “discussion of” and “advocacy for or against” impeachment:

Regarding impeachment, OSC’s guidance was not intended to prevent all discussions of impeachment in the federal workplace … Merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity. For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity.

“This is a distinction without a difference,” Clark argued in the Post. “Any room for discussion created by this ‘clarification’ is purely illusory. Expressing an opinion that Trump should be impeached can easily be characterized as prohibited advocacy for his impeachment. The inevitable result of the guidance and ‘clarification’ will be the unnecessary chilling of employee speech in the workplace.”

American Oversight was similarly unconvinced by the alleged distinction drawn by OSC. In an update to their open letter, Executive Director Austin Evers argued that “Whatever imagined distinction OSC sees between these positions, the guidance is completely unclear and confusing, and as a result, the OSC has again sent a chill across the public workforce.”

Nick Schwellenbach, the director of investigations at the Project on Government Oversight and a former OSC employee, told the Washington Post that the guidance may have crossed a constitutional line:

“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 to the Post that he believes that a challenge to the new OSC guidance “could be successfully challenged in court on its constitutionality.”