Impeachment prompts AFGE to ask for immediate relief from OSC Hatch Act guidance

Ongoing debates over the impeachment of President Donald Trump have prompted the American Federation of Government Employees to ask a federal district court to grant immediate relief from Office of Special Counsel guidance on the Hatch Act.

Attorneys with the progressive organization American Oversight and law firm Arnold and Porter  had filed a lawsuit in the U.S. District Court for the District of Maryland on behalf of AFGE back in August.

The union argued OSC’s November 2018 guidance, which advises federal employees against displaying slogans or advocating or opposing activities to impeach or resist the president, violates First Amendment rights.

The organizations asked the court last summer to block guidance from OSC, but with the Senate still debating articles of impeachment against the president, AFGE said the issue has become “more urgent.”

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They asked the court to immediately suspend the OSC guidance in a motion for a preliminary injunction, which the groups filed Friday.

“The Trump impeachment is the major news story dominating the headlines,” Everett Kelley, AFGE national secretary-treasurer, said Monday in a statement. “For federal employees, he is top management, and it is absurd to think impeachment of the boss will not be discussed at lunch and at the water cooler. Worse yet, it is a legislative act not related to electoral activity as defined under the Hatch Act. We view it as unconstitutional restraint of free speech.”

In general, the Hatch Act limits federal employees from engaging in certain political activities in their official capacity as public servants. It doesn’t, as OSC has detailed on its website and AFGE described in its lawsuit, prohibit federal employees from discussing current events or policy issues. OSC, as an independent agency, enforces the Hatch Act.

The guidance in question, which OSC first issued on Nov. 27, 2018 and followed up with clarifying guidance three days later, came in response to numerous questions from federal employees who have asked about the display of “#resist” or advocating or opposing the impeachment of the president, the agency said.

The guidance only applied to federal employees while they’re on duty at their official work sites and doesn’t prohibit employees from engaging in such activities while they’re away from the workplace or off duty, OSC said.

The agency said it never intended to completely prohibit all discussions of impeachment in the federal workplace. Employees could, for example, discuss the topic as long as they’re not advocating for the impeachment of a specific candidate, OSC said.

AFGE, however, said this guidance is misguided because it assumes the president would be removed and ineligible for office in the future due to the impeachment proceedings.

“OSC’s analysis rested on the supposition that impeachment leads to the president being ‘disqualified from holding any future office of honor, trust or profit of the United States,’ including the presidency,” AFGE’s latest motion reads. “But OSC’s apparent assumption that impeachment is synonymous with, and necessarily results in, disqualification from future office is incorrect.”