Employees of the federal government were warned this week not to talk about the “resistance” or the potential impeachment of President Trump while at work. If they do, they run the risk of violating the Hatch Act, which bars federal employees from engaging in partisan, political activity while on the job.
The guidance was handed down Tuesday by the Office of Special Counsel (OSC), which enforces the Hatch Act and has nothing to do with that other special counsel that’s been in the news so much lately. The new rule says that “‘resistance,’ ‘#resist,’ and similar terms have become inextricably linked with the electoral success (or failure) of the president.” Therefore, they shouldn’t be used at work by federal employees.
Same goes for advocating for, or against, Trump’s impeachment.
“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 says, according to the Times. “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.”
Experts who spoke to the Times and the Washington Post, and one who weighed in on Twitter, called the guidance an overreach and potential First-Amendment violation.
“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,” Daniel Jacobson, who worked on Hatch Act issues under President Obama, told the Times.
Nick Schwellenbach, who spent three years at the OSC, told the Post that the guidance “runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”
In a statement, the ethics watchdog American Oversight said the new rules go “too far.”
“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,” the statement says. “Indeed, the oath to uphold the Constitution requires them to do so. The OSC should retract its recent guidance and replace it with rules that are appropriately nuanced and do not empower retaliation.”
On Twitter, former Justice Department lawyer Sasha Samberg-Champion was also critical of the new guidance.
Ana Galindo-Marrone, an OSC official since 2000 who came up with the new guidance, defended it to the Times. “She argued that the guidance fit within the office’s past interpretations,” the paper reports. The prohibition of discussing Trump’s impeachment is new, she added, because no president since the passage of the Hatch Act in 1939 has dealt with impeachment concerns when he was eligible for reelection.
The good news for federal employees worried about this rule is that the Trump administration has been willing to ignore Hatch Act violations in the past. Earlier this year the OSC found that Kellyanne Conway had violated it twice in 2017 by inappropriately advocating for U.S. Senate candidate Roy Moore, who was accused of sexually assaulting underage girls. It recommended “appropriate disciplinary action” from the White House, which responded by defending Conway.