Posted November 30, 2018, 11:07 am CST
New guidance on prohibited political activity by federal employees warns that workplace talk of impeachment and resistance is banned by the Hatch Act.
The guidance was distributed this week by the Office of Special Counsel, which enforces the Hatch Act and is a different agency than special counsel Robert Mueller’s office, report the Washington Post and the New York Times.
The Hatch Act prevents federal employees from engaging in political activity at work.
The guidance says impeachment talk and resistance references are improper at work when they are directed at an office holder who is running for re-election—and President Donald Trump is running for a second term.
“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,” says the guidance, entitled “Guidance regarding political activity.”
Similarly, the word resistance and its hashtag references have “become inextricably linked with the electoral success (or failure) of the president,” the guidance says. “Now that President Trump is a candidate for re-election, we must presume the use or display of ‘resistance,’ ‘#resist,’ ‘#resistTrump’ and similar statements is political activity unless the facts and circumstances indicate otherwise.”
The new guidance is spurring some First Amendment concerns. Among those raising objections is the ethics nonprofit American Oversight, which sent a letter asking for the guidance to be withdrawn.
Employees should be able to express their views that officials violated their oath to uphold the Constitution, the group’s executive director, Austin Evers, wrote in the letter. “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,” the letter said.
The group argued that the guidance could constrain whistleblowers who fear Hatch Act liability for reporting impeachable offenses.
In addition, the letter said, the First Amendment protects the right to object to administration action or policies. “Conflating resistance terminology with electoral advocacy opens the door to public employees being retaliated against for their policy positions or opinions,” the letter said.
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