Government Employees Fight for the Right to ‘Resist’

A union representing over 600,000 federal employees argued the Office of Special Counsel’s ban on speaking publicly about the impeachment of Donald Trump is unconstitutional. 

The U.S. Capitol in Washington is shrouded in mist in December 2019. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) — Many federal employees struggle during a change in executive leadership, but former President Donald Trump saw so much pushback from within that Twitter accounts like RoguePOTUSStaff and RogueWhiteHouse popped up within days of his tenure. 

When Trump faced his first impeachment in 2018, the Office of Special Counsel — an independent agency that handles personnel issues in the federal government — issued a memo to government employees telling them to refrain from talking about the event or anything relating to “resistance.” 

“Advocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office,” the memo said. The office said such speech would violate the Hatch Act, which prohibits federal employees from supporting or opposing political candidates on the job. 

Failure to follow this guidance would result in punishment from the Office of Special Counsel. 

The American Federation of Government Employees, which represents over 600,000 workers, brought a case against the Office of Special Counsel claiming the memo was unconstitutional. It had a stifling effect on its recipients, they say, and the line between discussing impeachment and taking a political stance wasn’t clear. But a federal judge dismissed the case as unripe. 

On Tuesday, a panel of Fourth Circuit judges heard oral arguments about whether the lower court made the right call. 

“Our employees are not sure whether they can say ‘President Trump should be impeached,’ if that’s permissible,” Kyle Lyons-Burke of Arnold and Porter Kaye Scholer LLP said during oral arguments.  

Citing two previous Fourth Circuit cases — Cooksey v. Futrell and Kenny v. Wilson — Lyons-Burke argued that a pre-enforcement First Amendment challenge is justiciable in two ways.

“First, if a plaintiff has an intention to engage in conduct that is proscribed by a statute and there exists a credible threat of prosecution,” he said, “and second, if there is a sufficient showing of self-censorship, which occurs when a claimant is chilled from exercising his right to free speech.” 

U.S. Circuit Judge J. Harvie Wilkinson, a Ronald Reagan appointee, was unconvinced that the case was relevant. The employees didn’t actually engage in speech that got them in trouble with the Office of Special Counsel, and the agency has since done away with the policy. 

“It seems to be that the speech that they wished to engage in would be permitted, at least under revised OSC guidelines,” Wilkinson said. 

Trump-appointed U.S. Circuit Judge Allison Jones Rushing agreed. After Lyons-Burke acknowledged there’s no current chill since the policy is no longer in place, Rushing questioned whether there would be any impact going forward. 

“I’m just bothered by the lack of concreteness,” Judge Wilkinson added. “Why should we mess around with the legislative scheme?” 

Jack Starcher, a Justice Department employee arguing on behalf of the Office of Special Counsel, contended the case is moot and should be dismissed. 

The case was mooted when the 2020 election occurred, “and all individuals who were candidates for that election no longer are candidates for partisan public office, which is the key on which this question turns,” he said. 

“As has been made clear today, there’s no dispute made by this court at this time that the speech that plaintiff’s members say they want to engage in is no longer chilled by this advisory opinion,” he argued, because this advisory opinion, by its terms, no longer applies or covers the speech that they wanted to engage in even assuming, as Judge Wilkinson pointed out, that that speech was covered at some time in the past. 

Wilkinson asked if the Fourth Circuit was the “proper forum to be hearing this,” to which Starcher answered it wasn’t.

The panel took the case under submission and did not indicate when it will rule. 

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