Several legal specialists raised concerns about the new guidance, warning that it would intimidate people into avoiding even casual discussions with colleagues that should not be deemed banned by the statute.
“A large number of federal employees voted for Trump, but even they may disagree with him on specific policies and want to express that,” said J. Ward Morrow, assistant general counsel for the American Federation of Government Employees, a union that represents about 700,000 such workers. He added, “If they are going to go after anyone who mentions the word ‘impeachment’ in emails to co-workers, that will be overreach.”
Daniel Jacobson, who fielded Hatch Act questions as a White House lawyer in the Obama administration, called the new interpretation “overly broad,” collapsing expressions of opposition or support for Mr. Trump’s actions into campaign activity, even when the speaker is not thinking about the 2020 campaign.
“People who use the term ‘resist’ could be expressing views about any number of matters, and the presumption that they are specifically advocating for the defeat of a candidate in 2020 strikes me as crazy and raises significant First Amendment concerns,” he said.
Still, Jeff Ruch, the executive director of Public Employees for Environmental Responsibility, which works to protect environmental officials amid shifting political winds, noted that the Supreme Court has limited the First Amendment protections for speech by government workers while they are on duty. And he said he thought the warning was a fair interpretation of what the law means, although he said he was not happy about the state of the law.
Ana Galindo-Marrone, the chief of the Office of Special Counsel’s Hatch Act unit since 2000, said she and her deputy came up with the interpretation after receiving numerous questions about the rules. She argued that the guidance fit within the office’s past interpretations, while noting that Mr. Trump’s presidency has raised new wrinkles: The two presidents subjected to impeachment proceedings since the Hatch Act became law, Richard M. Nixon and Bill Clinton, were in their second terms and so ineligible to run for president again anyway.
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