Backlash as federal workers warned not to discuss Trump impeachment
New guidance warning federal workers not to discuss Donald Trump’s potential impeachment or the so-called “resistance” movement has sparked controversy, with some ethics advocates voicing concerns over what they see as an effort to crack down on free speech and limit dissent.
A memo released by the Office of Special Counsel last week clarified what constitutes political activity at the federal workplace, stemming from Trump seeking re-election as president in 2020.
In addition to avoiding topics that might suggest views favorable or unfavorable toward Trump, the document stipulated “strong criticism or praise of a presidential administration’s policies and actions” also amount to political activity.
The move prompted immediate backlash from government watchdogs and unions, who said the interpretation of political activity is too broad and exposes more than 2 million federal employees to undue risk and could hurt their free speech rights.
“This guidance is a broad reach that employees may find confusing. It could unnecessarily have a chilling effect on employees’ first amendment free speech,” said Tony Reardon, president of the National Treasury Employees Union, which represents 150,000 federal employees in 33 departments and agencies.
At issue is the Hatch Act, a law dating back nearly eight decades that was designed to prevent federal employees from engaging in partisan politics at work or while in their official capacity as civil servants. The law has long been enforced by the OSC, an independent federal agency unrelated to special counsel Robert Mueller and the investigation into Russian interference in the 2016 election.
The office typically investigates complaints against employees accused of engaging in partisan activity at work, and can recommend disciplinary measures that could result in dismissal.
Faced with criticism that its definition of political activity was too farreaching, the OSC insisted there had been no substantive changes in how such scrutiny was being applied.
The guidelines did not bar employees entirely from discussing what presidential conduct may warrant impeachment or sharing their thoughts on the matter, the office said. It noted that what would instead be inappropriate would be to advocate for – or against – the president’s impeachment while in the workplace.
The reason behind the memo’s release, according to the OSC, were questions that arose from federal employees and ethics officers given the frequency of such conversations – particularly at a time when Trump would clearly be seeking re-election. In addition to impeachment and the idea of “resisting” Trump, the OSC noted that federal employees were prohibited from wearing, displaying or distributing items from Trump’s campaign, such as anything bearing his Make America Great Again slogan.
Government watchdogs nonetheless saw a power grab; some made the case that talk of impeachment was not inherently linked to Trump’s reelection prospects, but instead a separate matter having to do with grounds for removal from office.
“The OSC needs to stand down and recognize that the Hatch Act permits advocacy for and against Trump’s impeachment,” Kathleen Clark, a law professor at Washington University who served as a government ethics lawyer in the DC attorney general’s Office, wrote in an op-ed this week.
Others took issue with the notion that federal employees could not stake out a position for or against administration policy, which they said ignored the fact that some issues transcended politics.
Ward Morrow, assistant general counsel of the American Federation of Government Employees, pointed to internal disagreement within the administration over the threat of global warming as an example.
Trump recently dismissed a landmark climate change study, produced by his own administration, while casting doubt on the underlying science. Morrow said it would not be unreasonable for an employee at the Environmental Protection Agency to voice disagreement or push for deferring to the consensus of the scientific community, but questioned if doing so would now be grounds for punishment under the Hatch Act.
“It’s not about someone running for office,” he said. “It may be a Trump policy, but it’s not about the Democratic or Republican party.”
The rules do not apply to employees once they leave their place of work; they are free to discuss their political views or engage in political activity in their free time.
But some argued that the Hatch Act had increasingly been misused to penalize workers, while instead ignoring the abuses of upper-level management.
Earlier this year, the OSC confirmed that Kellyanne Conway violated the Hatch Act on two occasions by advocating against political candidates while appearing on Fox News and CNN in her official capacity as counselor to the president.
Conway’s comments were made ahead of the Alabama Senate election, when she stopped just short of endorsing the Republican candidate Roy Moore while blasting the record of his Democratic opponent, Doug Jones.
The OSC referred its findings to Trump “for appropriate disciplinary action”, but the White House rebuked the report and no action against Conway was taken.
Senior officials have previously violated the Hatch Act under Democratic and Republican administrations. But the Trump administration has routinely made headlines for ethics violations, from the White House to cabinet
officials, further calling into question the disproportionately higher standard placed on workers.
“The way it is under the law, and certainly the way it’s been enforced, has always been stacked against workers instead of managers throughout history,” said Steve Hollis, a former computer programmer at the US Department of Agriculture who retired in 2014.
“We need a much bigger say from those who actually do the work,” he said.
“The whole idea of workers having a say at work is to be able to criticize our bosses and disagree with them.”