Union presses to suspend ruling on workplace impeachment talk

An emergency motion would pause an Office of Special Counsel policy designed to tamp down federal workplace advocacy of impeachment.

With President Donald Trump's impeachment trial proceeding in the Senate, a federal employee union is asking a federal judge to issue an injunction blocking a 2018 Office of Special Counsel memo that cautions feds that mentions of "impeachment" and the use of terms like "resistance" could constitute violations of the Hatch Act.

The 2018 memo by the OSC, which was controversial at the time, indicated that advocating for Trump's impeachment in the federal workplace is "squarely within the definition of political activity for the purposes of the Hatch Act."

A lawsuit opposing the OSC position was filed in August 2019 by the American Federation of Government Employees and AFGE's local 2578 on behalf of two employees of the National Archives and Records Administration who said their speech had been "chilled" by the policy.

The emergency motion requesting an injunction comes as the impeachment case is being heard in the Senate.

"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," Everett Kelley, AFGE's national secretary-treasurer, said in a statement. "Worse yet, [the OSC proscription] is a legislative act not related to electoral activity as defined under the Hatch Act. We view it as unconstitutional restraint of free speech."

AFGE argued in the motion that feds have experience, perspective and knowledge to contribute to the broader impeachment conversation.

"With respect to impeachment in particular, federal employees have unique knowledge of the budgetary and appropriations issues related to the President's conduct with respect to Ukraine, and thus would have special competency to express an informed opinion as to the appropriateness of the President's conduct and whether it warrants impeachment," the attorneys wrote. "Members of the foreign service similarly could opine with expertise on the foreign relations implications of the President's conduct. But under OSC's policy, such federal employees could not write an oped or social media post -- when they were on- or off-duty -- that identifies the employee by her official title and advocates for or against impeachment based on the employee's expertise."

A preliminary teleconference has been scheduled for Wednesday by U.S. District Court Judge Paula Xinis.

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