For more than a year, a federal ethics agency has instructed federal employees to steer clear of taking a stand at work for or against the impeachment of President Donald Trump, saying that doing so could run afoul of the Hatch Act that bars them from participating in certain political activities. With Trump now impeached and the subject of a Senate trial, a union representing federal employees says that the controversial legal guidance from the Office of Special Counsel (OSC) tramples on workers’ First Amendment rights. As part of a lawsuit that began last year, the American Federation of Government Employees (AFGE) filed an emergency motion in federal court last Friday asking a judge to block the guidance with an injunction. The union argues that the OSC, an independent agency now headed by a Trump appointee, has misread the Hatch Act in a way that’s created a “chilling effect” among federal employees.

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Impeachment is “all that’s in the news,” Ward Morrow, AFGE’s assistant general counsel, told HuffPost. “If you’re going to enforce [the OSC] advisory in the conditions we have now, they’ll be investigating employees for the next 100 years. It’s all anybody is talking about, especially in Washington.” AFGE has been waging its legal fight with an assist from American Oversight, a non-profit watchdog group founded by former Obama staffers that’s been hounding the Trump administration over conflicts of interest. Generally speaking, the Hatch Act, which dates to 1939, forbids most federal workers from engaging in electoral politics while on the clock or in their official capacity. While employees can make political donations or sign up new voters on their own time, they can’t urge their underlings to donate to someone’s reelection bid or pass out a candidate’s literature during the morning meeting. The restrictions tend to boil down to advancing a candidate or party, and that’s where AFGE said the OSC misses the mark. The guidance, first reported by The Washington Post in 2018, argues that impeachment amounts to electoral politics because it can result in a president being barred from holding federal office ― i.e., that impeachment amounts to a scuttled reelection bid.

If you’re going to enforce [the OSC] advisory in the conditions we have now, they’ll be investigating employees for the next hundred years. Ward Morrow, AFGE