Ethics Agency Warns Federal Workers Not To Discuss Impeachment Or 'Resistance'

Nov 30, 2018
Originally published on November 30, 2018 4:57 pm

A federal ethics agency is telling civil servants to avoid workplace talk about impeachment and #resistance for the next 705 days — until the day after Election Day 2020.

The memo from the Office of Special Counsel also warns federal employees not to engage in "strong criticism or praise of a presidential administration's policies and actions." The only presidential administration right now is President Trump's. The document was circulated to ethics officials across the government this week.

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The 79-year-old Hatch Act is mainly aimed at keeping partisan politics out of executive-branch bureaucracy. The small Office of Special Counsel, or OSC, enforces the act, periodically publishing guidance as new issues arise. (OSC isn't to be confused with special counsel Robert Mueller, who leads the investigation into possible Russian interference in the 2016 U.S. presidential election.)

The new guidance is all about Trump. He's the only major candidate who has announced he's running in 2020 (he did it a few weeks after taking office), the only candidate whom some critics want to impeach and the object of the social media hashtag #resistance that liberals coined as he took office in 2017.

Ana Galindo-Marrone, chief of the OSC Hatch Act unit, said the guidance was written in response to questions from federal workers and agencies' ethics officers, and that it wasn't intended to be sharply different from existing standards. She said the phrase "strong criticism or praise" didn't draw a stricter line than other regulatory limits, such as to "support or oppose" a specific candidate.

"To me, it's no different from the language we've used before," she told NPR.

But Debra Katz, a Washington, D.C., lawyer who handles employment and whistleblower cases, said the new language in the guidance "can't be inadvertent." She described the guidance as bringing a partisan taint to OSC, which oversees Hatch Act coverage of more than 2 million workers in the executive branch. "I think we need to look no further than this act to say this office has become politicized," she said.

Ward Morrow, assistant general counsel of the American Federation of Government Employees, said the guidance "would seem to have a real chilling effect," inhibiting employees' discussion of policies and legislative proposals.

The Hatch Act guidance comes at a time when the administration is under scrutiny for trying to stifle discourse in other ways. This month, the White House unsuccessfully attempted to permanently pull the press credentials of a CNN reporter who's an aggressive questioner of the president. The Trump administration also has pulled security clearances from retired intelligence officials who oppose his policies.

Since the administration took office, many government scientists, particularly those in the field of climate research, report political interference in their work. This month, Trump and high-level officials have sought to discredit a major climate change report issued by a range of scientists across the government.

Several Trump administration officials have run afoul of the Hatch Act. In March, presidential counselor Kellyanne Conway violated the act when she endorsed a Senate candidate during interviews in front of the White House. There was no punishment. Interior Secretary Ryan Zinke is being investigated for possible Hatch Act violations related to appearances he made with candidates this year. And the watchdog group Citizens for Responsibility and Ethics in Washington has filed Hatch Act complaints against several other Trump appointees.

American Oversight, a liberal watchdog group, is urging OSC to rescind the new guidance. Austin Evers, the group's director, said the agency should enforce the Hatch Act, but the guidance "opens a dangerous door for the Trump administration to crack down on dissent."

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Prospective candidates aren't the only ones laying plans for the 2020 presidential election. A federal agency has declared it's already campaign season, and government workers and the bureaucracy need to watch out for what they say, particularly when it comes to their views of President Trump. NPR's Peter Overby reports.

PETER OVERBY, BYLINE: Be really careful if you talk about impeachment or the, quote, unquote, "resistance" or, the memo says, strong criticism or praise of a presidential administration's policies and actions. This is the guidance from the federal agency that enforces the Hatch Act, a 79-year-old law meant to keep partisan political work out of the federal workplace. A guidance memo leaked out yesterday in Washington declaring the 2020 presidential campaign season has already begun. Blowback was severe, and the agency tried to clarify the policy today. Debra Katz is a Washington, D.C., lawyer who handles employment and whistleblower cases.

DEBRA KATZ: There will be lawsuits filed as a result of this memorandum because it is so chilling to the free speech rights of workers in the federal sector.

OVERBY: To start with, she said the guidance is lopsided.

KATZ: While this guidance says that there may be words that Republicans would use to oppose other candidates, the fact of the matter is there is only one presidential candidate that has declared, and that's President Trump.

OVERBY: And she said the guidance is much too broad in the way it defines things. The guidance comes from the Office of Special Counsel or OSC. It's not the office of special counsel Robert Mueller. The chief of OSC's Hatch Act unit spoke with NPR yesterday. She declined to talk on tape, but she said the guidance wasn't intended to be more stringent than what was issued in previous campaigns. And, yes, people do get in trouble for violating the Hatch Act - for instance, this.


KELLYANNE CONWAY: Doug Jones in Alabama - folks, don't be fooled. He'll be a vote against tax cuts.

OVERBY: Presidential counselor Kellyanne Conway outside the White House a year ago - she was telling Alabama viewers of "Fox & Friends" why they should support Republican Roy Moore in a Senate special election.


CONWAY: I'm telling you that we want the votes in the Senate to get this tax bill through.

OVERBY: OSC said that violated the Hatch Act. It sent a report to President Trump. If Conway was a regular civil servant, she could have been fired. At the American Federation of Government Employees, deputy general counsel Ward Morrow said the guidance would have trouble keeping people away from a subject as hot as impeachment. And Austin Evers, director of the liberal watchdog group American Oversight, said some of OSC's clarifications simply don't make sense.

AUSTIN EVERS: Any public employee who tries to parse what they are allowed to do based on what they've been told over the last three days would conclude that the safest course of action is to keep their mouth shut.

OVERBY: Evers pointed to the guidance on talking about impeachment. It says federal workers can express opinions on whether Trump should be impeached, but they cannot advocate for or against his impeachment. Peter Overby, NPR News, Washington. Transcript provided by NPR, Copyright NPR.