January, 26 2020, 11:00pm EDT
AFGE Files Emergency Motion to Protect the Speech Rights of Federal Employees During Impeachment
COLLEGE PARK, Md.
The American Federation of Government Employees and AFGE Local 2578 filed a motion in federal court on Friday, Jan. 24, to protect the First Amendment rights of government employees during the ongoing impeachment process.
The motion for a preliminary injunction asks a federal court to immediately suspend controversial guidance issued by the Office of Special Counsel (OSC) in late 2018 that has effectively barred federal workers from expressing views about the impeachment of President Donald Trump while at work.
AFGE had filed suit against OSC in August 2019 to block the guidance, but with the impeachment trial dominating national news, the issue has become more urgent as the policy is chilling the free speech rights of federal employees -- even as senior political appointees in the White House and other federal agencies have openly attacked the impeachment process without consequences.
"The Trump impeachment is THE major news story dominating the headlines. 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," AFGE National Secretary-Treasurer Everett Kelley said. "Worse yet, it is a legislative act not related to electoral activity as defined under the Hatch Act. We view it as unconstitutional restraint of free speech."
"The chilling impact of these rules has only gotten worse as the question of whether the president should be impeached moved from a speculative debate to a reality. Government employees have a right to speak about this historic matter," said Austin Evers, Executive Director of American Oversight, a non-partisan government watchdog representing AFGE in this case. "We are particularly concerned that OSC has taken no action against high-profile defenders of the president -- such as counselor Kellyanne Conway -- who, from their government perches, have weighed in against impeachment while ordinary civil servants who might hold different views must refrain from speaking out or risk losing their jobs."
The motion was filed as part of AFGE's ongoing lawsuit to block Hatch Act guidance issued by the OSC on Nov. 27, 2018, that presumptively restricts federal employees from expressing any opinion on "impeachment" or policy matters if the words "#resist" or "resistance" are used. If the court grants the motion for preliminary injunction, the guidance would be prohibited from taking effect while the case proceeds.
In the guidance, which equates the concept of "impeachment" with "removal from office," OSC confusingly advises that federal employees are allowed to discuss whether the president should or should not be impeached, but they are not allowed to advocate for or against impeachment -- a meaningless distinction that has made silence the only safe option for workers wishing to avoid potential punishment.
Following swift public pushback, including a letter from American Oversight, OSC issued a clarification of its initial position on November 30th, 2018, but made no meaningful change to the troubling substance of the guidance, compounding the concerns of government watchdogs, unions, and the public.
The preliminary injunction motion is accompanied by declarations of two AFGE Local 2578 members who are federal employees whose speech has been chilled by the OSC policy. One is an employee of the National Archives and Records Administration (NARA) in Maryland who wishes to express views about whether President Trump should be impeached, but has refrained from doing so due to the guidance. The other member is a NARA employee in Missouri who wishes to use the terms "resist" or "resistance" while at work, but also has refrained from using those words.
AFGE is represented by the law firm of Arnold & Porter LLP and American Oversight. The lawsuit, filed in Maryland federal court on August 13, 2019, seeks to compel the OSC to rescind the November 2018 guidance and enforce the Hatch Act without violating the statutory and constitutional rights of federal employees. If granted, the motion for preliminary injunction would prevent OSC from enforcing the guidance while the lawsuit proceeds.
The American Federation of Government Employees (AFGE) is the largest federal employee union proudly representing 700,000 federal and D.C. government workers nationwide and overseas. Workers in virtually all functions of government at every federal agency depend upon AFGE for legal representation, legislative advocacy, technical expertise and informational services.
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Retired General Says Hegseth Boat Strike on Shipwrecked Sailors Was a 'War Crime'
"Secretary Hegseth is basically convening everyone to think... this is the kind of thing that happens in war," said retired Lt. Gen. Mark Hertling. "It's not."
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A retired general suggested Monday that the Trump administration’s strike on shipwrecked survivors on September 2 may have been a war crime.
In the face of mounting scrutiny, Secretary of Defense Pete Hegseth has continued to defend what has been described as a "double-tap" strike off the coast of Trinidad, alleging that the two survivors were drug traffickers bound for America who could have still theoretically harmed it in some way despite clinging to the wreckage for their lives following the first strike.
NBC reported this weekend that Adm. Frank "Mitch" Bradley, who oversaw the strikes, told lawmakers that Hegseth had given direct orders for all 11 men aboard the vessel to be killed because "they were on an internal list of narco-terrorists who US intelligence and military officials determined could be lethally targeted.”
Last week, when reports first emerged of a second strike, Hegseth denied that it had taken place, calling it “fake news” before the White House later confirmed and defended the killing of the survivors.
Lt. Gen. Mark Hertling, who served as the commanding general of the US Army Europe from 2011 to 2012, discussed the strikes on Monday in an appearance on MS NOW's (formerly MSNBC's) "Morning Joe."
"It is, in fact, in my view, a war crime," Hertling said.
"Imagine yourself falling off a cruise ship and being asked to hang on to a piece of wood after you've just been struck with a large kinetic round that has killed nine of your 11 copilots on this boat," Hertling said. "It doesn't matter what they're doing at that point."
Hertling suggested that the frequent use of the term "double-tap" to refer to the strike was a misnomer, as was Hegseth's invocation of the phrase "fog of war" to defend the military's actions.
“That’s a term that special operators use when there are two successive rounds at a target to eliminate it, and to get rid of someone who is attacking them,” the general explained regarding the claims of a "double-tap" strike. “This was a restrike, with time between the first strike and the second. That gives you time to figure out what you’re going to do and clear that so-called ‘fog of war.'”
He cited the definition from Carl von Clausewitz, the 18th-century Prussian general and military theorist who coined the term to describe the “uncertainty” of battle.
"Secretary Hegseth is basically convening everyone to think he has been in war for 20 years, and this is the kind of thing that happens in war. It's not," Hertling continued. "What I'll tell you, having been involved in strikes like this on the ground, the only time you consider a restrike is when the enemy continues to fight, and you're continuing to either strike them with artillery or some type of faraway missile. So a restrike like this occurs when you realize the individuals on the ground or in the water are trying to fight back."
Hegseth and Bradley’s defense of the strikes has centered around the idea that even as they floated helplessly on a piece of debris, the victims still posed a “continuing threat” as they could have theoretically called in other traffickers as backup to retrieve them and their cargo.
As of yet, the administration has presented no evidence that the men were calling for backup, and videos of the incident viewed by members of Congress during a closed-door hearing reportedly suggest they lacked any means of communication. Bradley, meanwhile, acknowledged in his Senate testimony that the survivors did not appear to have any radio or communication devices.
Further undermining the Trump administration's argument that the boat posed an immediate threat, Bradley also reportedly told Congress that the ship was not even bound for the US, but for the South American nation of Suriname.
Hertling emphasized that the two men were shipwrecked on "a piece of debris floating in the middle of the Caribbean," adding that "these individuals are not going to go anywhere, which will become clear with the film," though Hertling acknowledged that he had not personally seen it.
In recent days, leading Democrats, as well as some Republicans in Congress, have called for the release of the video, which House Permanent Select Committee on Intelligence Ranking Member Jim Himes (D-Conn.) described last week as “one of the most troubling things I’ve seen in my time in public service.” Himes said that while the video showed the men were carrying drugs, “they were not in a position to continue their mission in any way.”
The strike was the first in a months-long campaign of extrajudicial bombings by the Trump administration on boats that they have claimed without evidence have contained drug traffickers bound for the US. At least 87 people have been killed in the two dozen strikes since September. Some of those killed in the strikes were later reported to have been ordinary fishermen, and others who had nothing to do with the drug trade.
While focus has been centered on the details of the September 2 strike in recent days and Hegseth's role, experts have emphasized that the entire boat-bombing campaign is illegal.
"The initial attack was illegal too,” said Kenneth Roth, the former longtime director of the advocacy group Human Rights Watch, on social media last week. "Whether Hegseth ordered survivors killed after a US attack on a supposed drug boat is not the heart of the matter. It is blatantly illegal to order criminal suspects to be murdered rather than detained. There is no 'armed conflict' despite Trump's claim."
While the "Morning Joe" segment focused on the question of whether the second September 2 strike was a war crime, some legal experts have said those involved in ordering and carrying out that attack and the other bombings could actually be liable for murder under US law, since Congress has not authorized an armed conflict in the Caribbean.
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Paramount Skydance on Monday launched a hostile bid to take over Warner Bros. Discovery shortly after US President Donald Trump publicly expressed skepticism of Netflix's proposed deal to acquire parts of the media company—and pledged to intervene in the federal review process.
"It is a big market share, there’s no question about it," Trump said late Sunday of Netflix's proposed $83 billion purchase of Warner Bros. Discovery's (WBD) film studio and streaming business.
"I’ll be involved in that decision," the president added.
Hours after Trump's comments, Paramount CEO David Ellison—the son of billionaire GOP megadonor and close Trump ally Larry Ellison—announced the hostile bid to buy WBD, attempting to subvert the Netflix deal by taking an all-cash, $30-per-share offer directly to Warner Bros. shareholders.
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Axios reported Monday that "Affinity Partners, the private equity firm led by Jared Kushner, is part of Paramount's hostile takeover bid for Warner Bros Discovery, according to a regulatory filing."
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Ellison was reportedly at the White House last week urging the Trump administration to block Netflix's bid for WBD.
Speaking to CNBC on Monday, Ellison said that "we've had great conversations with the president about" Paramount—which controls CBS News thanks to a merger that the Trump administration approved—potentially becoming the owner of CNN, a frequent target of Trump's vitriol.
CNBC: Do you think the president embraces the idea of you being the owner of CNN given his criticism for that network?
DAVID ELLISON: Ah -- we've had great conversations with the president about this but I don't want to speak for him in any way, shape, or form pic.twitter.com/FdwBzfP3eO
— Aaron Rupar (@atrupar) December 8, 2025
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US Sen. Elizabeth Warren (D-Mass.) expressed similar concerns about Trump's potential corruption of the regulatory process. The proposed Netflix deal is expected to face a review by the US Justice Department's Antitrust Division, where top officials were recently ousted for "insubordination" amid criticism of agency leaders' corporate-friendly approach to merger enforcement.
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A top Brazilian official is warning President Donald Trump that a US military attack on Venezuela could easily spiral out of control into a "Vietnam-style" regional conflict.
Celso Amorim, chief foreign policy adviser to Brazilian President Luiz Inácio Lula da Silva, said in an interview published on Monday by the Guardian that a US military strike on Venezuela would inevitably draw nations throughout Latin America into an armed conflict that would be difficult to contain.
"The last thing we want is for South America to become a war zone—and a war zone that would inevitably not just be a war between the US and Venezuela," he said. "It would end up having global involvement and this would be really unfortunate."
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The Trump administration in recent weeks has signaled that it plans to launch attacks against purported drug traffickers inside Venezuela, even though reports from the US government and the United Nations have not identified Venezuela as a significant source of drugs that enter the United States.
The administration has also accused Maduro of leading an international drug trafficking organization called the Cartel de los Soles, despite many experts saying that they have seen no evidence that such an organization formally exists.
Trump late last month further escalated tensions with Venezuela when he declared that airspace over the nation was "closed in its entirety," even though he lacks any legal authority to enforce such a decree.
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