For President Donald Trump and his appointees in Washington, it’s likely there are few everyday experiences more annoying than walking into the office and listening to your underlings chatter, share notes or author anonymous New York Times op-eds about impeachment or “the resistance,” as opponents to the president’s agenda both inside and outside government employment sometimes describe themselves. Given the idiosyncrasies of the current president, his ego, his love of authoritarianism and his “my generals” view of his domain, this probably burns.
And it would at least explain why the U.S. Office of Special Counsel (the federal personnel advising unit, not the similarly titled Robert Mueller-headed office within the U.S. Department of Justice) issued a recent warning to all executive branch employees that it constitutes banned political activity to even so much as talk about impeachment or “resistance, #resist and derivatives thereof” while in the office. Well, there goes about 75 percent of the water cooler chatter, especially for anyone with a Twitter account.
How can the mere utterance of the word, “impeachment,” represent a violation of the law? That’s where this strays into Alternative Fact of the Week territory. It requires a reality-stretching interpretation of the Hatch Act’s ban on partisan politics in the federal workplace (as well as in certain state and local government offices related to federal programs). Let’s just call the OSC argument a little aggressive in its effort the button the lips of federal workers.
First, a few reminders of what the Hatch Act is about. In effect since 1939, the Hatch Act (properly — and wonderfully — titled, “An Act to Prevent Pernicious Political Activities”) was intended to prevent federal employees from participating in partisan political activity and potential corruption. Mostly, this was about keeping them from collecting campaign contributions from underlings or getting paid by taxpayers not to do their jobs but to help get their bosses reelected. It’s been controversial over the years, challenged unsuccessfully in court as a violation of First Amendment rights and amended in 1993 to clarify that off-duty political speech is protected.
But the special counsel has a more expansive view of what constitutes a Hatch Act faux pas. Impeachment talk is banned because — wait for it — it would prevent Mr. Trump from running for reelection in 2020. That’s true, of course, but worrying about the success or failure of the Trump 2020 candidacy would seem beside the point if he’s determined to have committed treason, accepted a bribe or committed some other “high crime or misdemeanor.” As for “resistance” or “#resist,” the special counsel sees these terms as “inextricably linked with the electoral success (or failure) of the president.” In other words, it’s just a shorthand for saying you’re against Mr. Trump’s reelection.
One could just as easily suggest that sending out memos warning federal workers not to breathe a word about impeachment or resistance is itself a violation of the Hatch Act (if the law didn’t provide an out for top appointees) as a way to keep millions of people from so much as criticizing the president. What happens if Congress actually moves to impeach? Will federal workers have to come up with circumspect ways to explain the president’s legal status to each other or outsiders? “Mr. Trump is getting “I-worded” or the president is facing rhymes-with-him-beech-rent?
Interestingly, the special counsel had a follow-up memo making it clear that previous “guidance was not intended to prevent all discussions of impeachment in the federal workplace” and that such casual talks do not represent “political activity.” But what’s political activity versus two people talking? Good luck figuring that out. Advocating forcefully for a position — say, whether Mr. Trump deserves to be impeached — to someone else in the office or on the phone sounds too much like political activity to be wholly comfortable making a distinction.
So what’s the penalty for violating the Hatch Act? A fine? A suspension? Actually, there’s only one — you lose your job if the Merit System Protection Board decides they don’t like the cut of your jib (or the content of your speech). Having that happen just for mentioning impeachment doesn’t sound very constitutional to us (and a long way from the pernicious political activity that Congress was worried about 80 years ago). But that seems to be how they roll in Washington — at least until more fact-friendly lawyers get involved.
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