Office of Special Counsel: Federal employees keep asking us if it's okay to advocate impeachment at work

A little scoop courtesy of Jeryl Bier. The Office of Special Counsel has received repeated inquiries asking whether or not federal employees are allowed to advocate for Trump’s impeachment on the job. Other employees asked if displaying their commitment to “The Resistance” is forbidden while on duty. The OSC got enough of these requests that they decided to put out some guidance clarifying the issue earlier this week. Today, the office put out a letter clarifying that earlier guidance:

The letter published today reads in part:

Over the past several months, federal employees have repeatedly asked whether use or display of “#resist” or “the Resistance,” or advocating or opposing impeachment of the president, while on duty or in the workplace, is prohibited political activity for Hatch Act purposes. Having answered the question numerous times, OSC decided to distribute the November 27 email.

The OSC’s memo issued Tuesday said, “Assuming that disqualification from holding federal office would bar an individual from serving as president, any advocacy for or against an effort to impeach a candidate is squarely within the definition of political activity for purposes of the Hatch Act.” And with regard to the “Resistance” the guidance memo reads, “‘resistance,’ ‘#resist,’ and similar terms have become inextricably linked with the success (or failure) of the president.” The memo goes on to say that because Trump is a candidate for reelection, “we must presume that the use or display of ‘resistance,’ ‘#resist,’ ‘#resistTrump,’ and similar statements is political activity unless the facts and circumstances indicate otherwise.”

The Washington Post reports that the OSC memo was met with opposition from several groups and observers:

The ethics nonprofit American Oversight said the guidance raised “significant concerns” in a letter it sent to the office Thursday, urging it to withdraw the memo.

“OSC’s position on impeachment advocacy or opinions goes too far,” the group’s executive director, Austin Evers, wrote in the letter, adding that “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.”…

Nick Schwellenbach, director of investigations at the Project on Government Oversight and an employee of the OSC from 2014 to 2017, said he felt the guidance probably crossed a legal line.

“The way OSC has traditionally balanced its enforcement of that statute with the First Amendment is [focused on] supporting a candidate or political party for election. I think once you start talking about more-general political views, you’re starting to infringe upon people’s rights,” he said. “This one, I think, goes too far for them. It runs the risk of turning the OSC into an Orwellian enforcer inside the federal workforce.”

So the letter issued today was meant to be a clarification of the earlier memo, one that would alleviate concerns about what the OSC was saying. It says, for instance, that federal employees could discuss impeachment and even whether they thought Trump should be impeached, but that an employee could not display a poster in the office that reads, “#Impeach45” or alternatively a bumper sticker that said, “Don’t Impeach Trump.” I guess we’ll have to wait and see if this guidance gets challenged in court.

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David Strom 10:01 AM on February 04, 2023