Kathleen Clark is a law professor at Washington University and served as a government ethics lawyer in the D.C. Attorney General’s Office.
At a time when government ethics violations by the president, his aides or his Cabinet appointees seem to make the news every week, it’s easy to forget that ethics officials sometimes go too far in restricting government employees. That is what happened last week when an obscure agency declared that federal law prohibits federal employees from advocating for or against the impeachment of President Trump.
The agency, the independent Office of Special Counsel (not to be confused with the office of special counsel Robert S. Mueller III), is wrong in its interpretation of the law and needs to withdraw its guidance.
The law at issue is the Hatch Act, a statute enforced by the OSC that was designed to ensure that the federal workplace is free of partisan politics. It helps the people have confidence that they will receive fair treatment in the executive branch, regardless of their political leanings. In the workplace, federal employees are prohibited from engaging in partisan political activity, including “activity directed toward the success or failure of a … candidate for partisan political office.”
The OSC took that language a step further last week, claiming that advocacy for impeachment “is clearly directed at the failure of” Trump’s reelection campaign and therefore prohibited by the statute. The OSC is wrong about the facts and wrong about the law.
The OSC attempted to support its position by citing Article I of the Constitution, which grants Congress the power not only to remove a person from office but also to disqualify him or her for future office.
But as a practical matter, when people advocate Trump’s impeachment, they are concerned with removing him from office, not whether he can run for office in the future. Most people are likely not even aware that disqualification from future office is possible. And more important, the clause does not mandate disqualification from future office as a consequence of impeachment; instead, it imposes a limit on the range of punishments available when someone is convicted after impeachment. Fines and imprisonment are not available, but removal from office and disqualification from future office are.
As a matter of constitutional law, disqualification from future office is a separate issue from removal from office. If the Senate addresses disqualification at all, it does so in a separate vote after conviction. Disqualification from future office is not the inevitable result of impeachment, as exemplified by Rep. Alcee L. Hastings (D-Fla.), who served as a federal judge until he was impeached, convicted and removed from office in 1989. The Senate did not vote to disqualify him from future office, and three years after being impeached and removed, Hastings won election to the House of Representatives, where he continues to serve.
The OSC has overreached in attempting to ban advocacy for or against impeachment from the federal workplace. Impeachment is not inextricably linked with disqualification from future office, nor is advocacy of Trump’s impeachment “clearly directed at the failure of” Trump’s reelection campaign, as the OSC asserted.
The agency issued a “clarification” late last week asserting that it was not attempting to prohibit “all discussions of impeachment in the federal workplace.” According to the office, while “advocacy for or against the impeachment” is prohibited, a federal employee may “express an opinion about whether the president should be impeached.”
This is a distinction without a difference. Any room for discussion created by this “clarification” is purely illusory. Expressing an opinion that Trump should be impeached can easily be characterized as prohibited advocacy for his impeachment. The inevitable result of the guidance and “clarification” will be the unnecessary chilling of employee speech in the workplace.
The Hatch Act itself recognizes that, to the extent not expressly prohibited by the law, federal employees should be free to exercise “their right to participate or to refrain from participating in the political processes of the Nation,” without “fear of penalty or reprisal.” Impeachment is part of that political process of the nation.
The OSC needs to stand down and recognize that the Hatch Act permits advocacy for and against Trump’s impeachment. This might not sit well with some in the federal government, but the First Amendment protects this kind of political speech even when the government would prefer silence.