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Can Federal Employees Discuss Impeachment? Office of Special Counsel Tries to Explain Rules, Confuses Things More


In the wake of six federal employees having been liable for Hatch Act violations, the Office of Special Counsel (OSC) is trying its damndest to clarify what federal employees can and can’t say while at work. And by “clarify,” I mean, “confuse the hell out of everybody.”

First, a little background.

The Hatch Act is a federal law that’s gotten quite a bit of media attention since that time James Comey held press conferences over the Clinton email investigation right before Election Day. Generally, the Hatch Act prohibits federal employees from using their official authority, “for the purpose of interfering with or affecting the result of an election.” It’s a civil, not criminal, statute, and violations require a finding of intentional election interference.

Last week, the OSC found that six members of the Trump administration violated the Hatch Act when they tweeted variations of “Make America Great Again,” and, “#MAGA” from their official Twitter accounts.

In the same document that announced those findings of wrongdoing, though, OSC said that Mick Mulvaney, the director of the Office of Management and Budget, had done nothing wrong when he used the term “MAGAnomics” in an opinion column, and that it was perfectly permissible for Sarah Huckabee Sanders to use the phrase “great again” in her official tweets.

Sensing that all hell was breaking loose over the apparent inconsistency of outcome, OSC issued some official clarification about what is and is not acceptable under the Hatch Act.

The new guidance attempted to spell out, in some specific examples, what would and would not count as “political activity” under the Hatch Act. For example, it distinguished between praise or criticism of a particular party or candidate (which would be political activity) versus that of a general policy (which would not). On the topic of presidential impeachment, the guidance explained that advocating for or against the impeachment of a president would constitute prohibited political activity, while similar comments about a non-elected official would not.

Lastly, the guidance discussed the use of the terms #Resist and #Resistance:

Now that President Trump is a candate for reelection, we must presume that “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and cirucmstances indicate otherwise.

Then, after OSC had “clarified,” it took another stab at making things clear by publishing a second document:

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. An employee may not, however, display in his or her office a poster that states “#Impeach45” or place a “Don’t Impeach Trump” bumper sticker on a government-owned vehicle because such conduct advocates for or against impeachment of a candidate for federal office.

Hatch violations may not carry jail time, but it would still be good if federal workers knew what behavior could get them into trouble. Moreover, many argue that the idea that an ill-placed bumper sticker violates federal law goes too far, especially in today’s politically-charged climate.

The ethics nonprofit American Oversight sent a letter to OSC arguing that the new guidance goes to far in limiting permissible speech in the federal workplace. Talk of impeachment, AOE Director Austin Evers argues, is akin to whistleblowing:

The Hatch Act bars public servants from engaging in partisan political activities while on duty but does not prohibit them from speaking out as citizens against illegality or bad policy. Indeed, the oath to uphold the Constitution requires them to do so.

Similarly, the AFGE union reportedly warned that this new guidance, “will serve only to strike fear into America’s workforce and prevent future workers from blowing the whistle on waste, fraud, and abuse.”

Not all experts are of one mind on this issue, though. Law&Crime spoke today with national security law expert Bradley Moss, who was less critical of the content of the OSC guidance:

Some people have candidly taken this cautionary guidance from OSC and blown it a bit out of proportion as some effort to stamp out the #resistance. Civil servants are required by law to avoid engaging in political activity in the workplace and this guidance provides necessary clarification on to what extent the #resistance talk runs afoul of that restriction. Nothing about this guidance prevents those same civil servants from having these conversations outside of the workplace among friends. When they show up at work, however, the law mandates they put that political angle aside in order to perform the work of the U.S. Government, not that of a political party or ideology.

Still, some argue that it’s not the content of the OSC guidance that is most problematic – but the context. Viewed in light of the recent findings, the “clarified” guidelines are confusing at best and wildly hypocritical at worst. Austin Evers wrote in follow-up correspondence with OSC:

Federal employees also received the mixed message this week from OSC that supporting “MAGAnomics” is permissible while supporting the “Resistance” is not.

The Twitterverse picked up on the same inconsistency too:

Others, though, are focused on a much broader picture. While grumblings, postings, and bumper stickers among federal employees might technically amount to Hatch violations, there are those who believe the underlying impetus for all this drama is nothing more than President Trump’s thin skin.

[Image via Fox News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos