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Federal workers sue for the right to criticize political candidates

ABC News logo ABC News 8/13/2019

a close up of food on a table: Buttons are set out for attendees at a Need to Impeach teach-in at a public library in Chantilly, Va., June 22, 2019.

Buttons are set out for attendees at a Need to Impeach teach-in at a public library in Chantilly, Va., June 22, 2019.
© Jonathan Ernst/Reuters

The largest union of federal workers on Tuesday announced it's suing the U.S. government in a bid to get it to drop its rules restricting workers from criticizing President Donald Trump or other political candidates.

The American Federation of Government Employees, which represents some 700,000 federal workers, said it was concerned that the latest guidance restricted free speech and could be weaponized by politically motivated managers, including those seeking to punish people who express support for the president.

Last fall, the federal government's top legal counsel, the Office of Special Counsel, or OSC -- which is not related to former special counsel Robert Mueller -- warned federal workers not to call for a politician's impeachment or to lobby openly for any particular candidate.

(MORE: Memos to federal workers: Leave that #ResistTrump coffee mug at home)

AFGE National President J. David Cox Sr. said, "OSC's vague, overbroad guidance creates an opening for managers and political appointees to go after career civil servants for politically-motivated reasons."

Trump's supporters have alleged that the president's agenda is being undermined by federal workers who are part of a "Deep State." Trump has tweeted about such a conspiracy, specifically alleging that the FBI could be part of a conspiracy working against him.

Several senior White House and administration officials have received warnings from the OSC of violations, including White House counselor Kellyanne Conway, former U.S. Ambassador to the United Nations Nikki Haley and White House social media director Dan Scavino Jr. The Hatch Act is a decades-old law aimed at preventing federal employees from engaging in partisan political activities. It does not apply to the president or vice president.

(MORE: Kellyanne Conway found to have twice violated law banning use of office for political ends) (MORE: White House social media director reprimanded over political tweet) (MORE: Nikki Haley issued warning over political tweet violating Hatch Act) 

In a November memo to the nation's estimated two million workers, OSC said overt politicking at the office and online -- including the hashtag #Resist -- violates existing laws intended to keep the day-to-day operations of the government apolitical.

The OSC memo said context matters, however.

For example, criticizing a White House policy while chatting with coworkers might be acceptable, OSC said. But doing it in the context of the 2020 election? That could pose problems, according to the memo.

"There are no 'magic words' of express advocacy necessary in order for statements to be considered political activity under the Hatch Act," according to the memo. "Therefore, when a federal employee is prohibited by the Hatch Act from engaging in political activity -- e.g., when on duty, in the federal workplace, or invoking official authority -- the employee must be careful to avoid making statements directed toward the success or failure of, among others, a candidate for partisan political office."

An OSC spokesman declined to comment, citing pending litigation.

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