Employees of the federal government were warned this week that both praising and criticizing the Trump administration while on duty may be considered illegal. Federal workers are specifically barred from "advocating" for or against impeachment and from expressing support for the so-called "resistance" to President Donald Trump.
Such expressions could be considered violations of the Hatch Act, a 1939 law that largely prohibits federal workers from engaging in political activity while on the clock or in their official capacity as a government employee. In a memorandum released Tuesday, the Office of Special Counsel (no relation to Robert Mueller's Russia probe) Hatch Act unit explains what kind of speech should be avoided.
There are quite a few nuances. Employees aren't necessarily barred from praising or criticizing a presidential administration's policies. "Whether a particular statement constitutes political activity depends upon the facts and circumstances," the memo reads. But in general, on-duty employees must "avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office."
That's where talk of "impeachment" comes in. The Office of Special Counsel says it's operating under the assumption that federal officials who are impeached and later removed are disqualified from holding office again. As a result, voicing support for impeachment is considered political activity. "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 memo states. The same goes for employees who speak out against impeachment, though the directive does not apply to speech about people who aren't running for "partisan elected office."
The memo goes on to warn against activity related to such words and phrases as "#resist," "the resistance," and "#resistTrump." Such terms, the memo points out, are clearly associated with efforts to oppose the Trump administration's policies. Since Trump has already announced his reelection bid, the Office of Special Counsel assumes that "the use or display of" those terms "and similar statements is political activity unless the facts and circumstances indicate otherwise." The agency notes that there's nothing wrong with using those words in a clearly apolitical context.
Some experts have expressed concern that the new directive could infringe on free speech. "This goes beyond past guidance about what partisan political activity is, and is more restrictive of speech of federal employees than past guidance that I've been able to find," Kathleen Clark, a law professor at Washington University in St. Louis, tells The New York Times. "I think their legal analysis is wrong in this attempt to outlaw all discussion of impeachment of Trump in the federal workplace. Maybe that is a good idea, maybe that is a bad idea, but I don't think that is what the Hatch Act requires."
Former Office of Special Counsel employee Nick Schwellenbach, who currently serves as director of investigations at the Project on Government Oversight, also thinks the directive "goes too far." He tells The Washington Post that "once you start talking about more-general political views, you're starting to infringe upon people's rights."
But Roger Pilon, vice president for legal affairs at the Cato Institute, isn't so sure. "This appears to be simply an effort to draw the distinctions that the Hatch Act requires, and that often involves close calls," Pilon tells Reason. He acknowledges that the directive regarding "resistance" could "involve closer calls." But "the distinction is drawn with reference to periods when President Trump was not and then, later, was a candidate for office."
Ana Galindo-Marrone, who leads the Hatch Act unit, doesn't think this directive is that different from policies already in place. "To me, it's no different from the language we've used before," she tells NPR.
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