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Hatch Act guidance limits federal employees from using the term 'resistance,' supporting or opposing impeachment of President Trump

Federal employees are not to use the terms "resistance" or "#resist" in statements regarding President Donal...

Posted: Dec 4, 2018 8:37 AM
Updated: Dec 4, 2018 8:37 AM

Federal employees are not to use the terms "resistance" or "#resist" in statements regarding President Donald Trump, according to guidance issued by the Office of the Special Counsel on Nov. 27.

The guidance, emailed to federal employees, states that use of those terms when discussing the President, as well as supporting or opposing impeachment of any candidate running for political office, which includes the President who is running for re-election, could be considered a violation of the Hatch Act.

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The Hatch Act limits certain political activities of federal employees in an attempt to prevent the federal government from affecting elections or operating in a partisan manner. It applies to all federal employees, including those at the state and local level who work with federally funded programs. The act, however, is a guideline, so violations are not considered crimes. Punishment can range from a simple reprimand to the loss of a job.

The guidance states that any statements relating to "resistance to Donald J. Trump, usage of the terms 'resistance,' '#resist' and derivatives thereof is political activity." The guidance says that while those terms were initially used to oppose administration policies, they have now become "inextricably linked with the electoral success (or failure) of the President."

It also states that supporting or opposing impeachment of a candidate is "squarely within the definition of political activity" in violation of the Hatch Act. Because Trump has announced his candidacy for re-election in 2020, supporting or opposing his impeachment would be considered a violation.

American Oversight, a watchdog group led by former Obama administration officials, condemned the guidance, stating that their position on "impeachment advocacy or opinion goes too far," and that their position on activity related to 'the Resistance' also "suffers from overbreadth."

"Conflating resistance terminology with electoral advocacy opens the door to public employees being retaliated against for their policy positions or opinions," the group's executive director Austin Evers said in a statement posted on their website. "The overbreadth of OSC's position may run afoul of the First Amendment."

American Oversight warned that OSC's position on impeachment could "dangerously constrain whistleblowers."

In further clarification issued by OSC, the office specifies that the November 27 guidance "does not limit whistleblowers in any way from reporting or disclosing wrongdoing."

The guidance says that there are no "magic words" of "express advocacy" that are automatically considered to be violations of the Hatch Act. It also states that while this guidance restricts what federal employees can say and do in their official roles, the activity outlined in the email is only considered a Hatch Act violation when it is done while an employee is at work, on duty, "wearing an agency uniform or insignia, or while invoking any official authority or influence."

It also clarifies that broad usage of the terms "resist" and "resistance," like if an employee posts on social media, "I must #resist the temptation to eat another donut from the break room," would not be considered a violation.

The Office of the Special Counsel -- not to be confused with the Department of Justice's office of the special counsel led by Robert Mueller -- is a government body that enforces a handful of rules, including the Hatch Act.

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