Agency Pulls Back on Its Warning Against Talk of ‘Resistance’ in Federal Workplaces
Posted November 30, 2018 8:03 p.m. EST
WASHINGTON — An independent government agency, facing criticism over a warning to federal employees against taking positions for or against the impeachment of President Donald Trump and using slogans incorporating the word “resist,” revised its guidance on Friday to say that some discussion of both topics remained lawful.
The agency, the Office of Special Counsel, enforces the Hatch Act, a law that bars federal employees from engaging in political activity for or against partisan election campaigns while at work or in their official capacity. (It is not related to the special counsel investigation into Russia’s interference in the 2016 election.)
The agency had issued its initial guidance earlier this week about discussion of impeachment and “resistance” to more than 2 million federal employees. It said that because Trump was already running for re-election, such statements were effectively advocating support or opposition to his candidacy and were therefore illegal under the Hatch Act.
Some legal specialists said the agency’s guidance went too far. On Friday, the agency issued what it characterized as an extension and clarification, which stressed that casual discussion of impeachment remained acceptable.
“OSC’s guidance was not intended to prevent all discussions of impeachment in the federal workplace,” the revised guidance said, adding: “Merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity. For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity.”
However, it said, employees may not display in their offices posters that call for the impeachment of Trump, or place a “Don’t Impeach Trump” bumper sticker on a government-owned vehicle.
The revised guidance also said that some uses of the “resist” slogan remained permissible, so long as it was being used in relation to an issue rather than to Trump. It offered, as acceptable uses of the slogan because the context was not a political campaign, the examples #ResistHate and #ResistKavanaugh.
The clarification came as the agency issued findings that six members of the Trump administration had violated the Hatch Act for using Trump’s Make America Great Again slogan in Twitter posts, based on its reasoning that the slogan amounted to endorsing his campaign. At the same time, the office cleared Mick Mulvaney, the director of the Office of Management and Budget, for using the term “MAGAnomics” in an opinion column, ruling that its context was Trump’s economic program rather than his 2020 re-election effort.
Against that backdrop, not all critics of the guidance initially issued this week were mollified. Among them, Austin Evers, executive director of American Oversight, a nonpartisan watchdog group, said in a statement that the rules remained unclear and called on the office to withdraw all the guidance and start over.
“Reasonable employees would undoubtedly find this distinction confusing, and such incoherence could have no effect except to put a chill on workers’ speech,” he said.
But the Office of Special Counsel suggested that a bright-line rule would be difficult to formulate, given that deciding which statements are impermissibly political necessarily turns on case-by-case facts.
“We will continue to evaluate the facts and circumstances of each individual complaint that we receive in order to determine whether any alleged conduct violates the Hatch Act,” the office said.