Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 1 of 30 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs, v. Case No. 8:19-cv-02322-PX ORAL ARGUMENT REQUESTED OFFICE OF SPECIAL COUNSEL, Defendant. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 2 of 30 TABLE OF CONTENTS INTRODUCTION ...................................................................................................................... 1 BACKGROUND ........................................................................................................................ 2 A. Overview of the Hatch Act ................................................................................... 2 B. The Advisory Opinion and Clarification............................................................... 3 C. 1. Impeachment ............................................................................................ 3 2. “Resistance” ............................................................................................. 5 3. Restrictions on Speech While Off Duty .................................................... 7 The Chill on Protected Speech of Plaintiffs’ Federal-Employee Members ............ 8 ARGUMENT .............................................................................................................................. 9 I. Plaintiffs Are Likely to Succeed on the Merits ................................................................. 9 A. The Policy Is Unconstitutionally Overbroad ....................................................... 10 B. The Policy Constitutes Unlawful Viewpoint Discrimination............................... 16 C. The Policy Is Unconstitutionally Vague ............................................................. 19 D. Alternatively, as a Matter of Constitutional Avoidance, this Court Can Hold That the Policy is Inoperative Because the Hatch Act Does Not Encompass the Speech Restricted by the Policy ................................................. 22 II. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief ................................... 22 III. The Balance of Hardships and the Public Interest Support a Preliminary Injunction ...................................................................................................................... 23 CONCLUSION ......................................................................................................................... 23 Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 3 of 30 TABLE OF AUTHORITIES Pages Cases Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342 (2d Cir. 2003) ................................................................................................ 23 Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270 (4th Cir. 2013) ............................................................................................... 20 Christian Legal Society v. Walker, 453 F.3d 853 (7th Cir. 2006) ............................................................................................... 19 City of San Diego, Cal. v. Roe, 543 U.S. 77 (2004) .............................................................................................................. 23 Clark v. Martinez, 543 U.S. 371 (2005) ............................................................................................................ 22 Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................................ 23 FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307 (2012) ........................................................................................................ 20 Garcetti v. Ceballos, 547 U.S. 410 (2006) ............................................................................................................ 10 Gracepointe Church v. Jenkins, 2006 WL 1663798 (D.S.C. June 8, 2006) ............................................................................ 23 Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................................ 20 In re Under Seal, 749 F.3d 276 (4th Cir. 2014) ............................................................................................... 22 J.O.P. v. U.S. Dep’t of Homeland Sec., No GJH19-1944, 2019 WL 3536786 (D. Md. Aug. 2, 2019)................................................ 23 Lane v. Franks, 573 U.S. 228 (2014) ............................................................................................................ 10 League of Women Voters of N.C. v. North Carolina, 769 F.3d 224 (4th Cir. 2014) ................................................................................................. 9 ii Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 4 of 30 Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011) ......................................................................................... 22, 23 Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016) ........................................................................................ passim Matal v. Tam, 137 S. Ct. 1744 (2017) ........................................................................................................ 16 McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998) ............................................................................................... 13 Milwaukee Police Ass’n v. Jones, 192 F.3d 742 (7th Cir. 1999) ............................................................................................... 11 N.C. Right to Life, Inc. v. Leake, 525 F.3d 274 (4th Cir. 2008) ......................................................................................... 20, 21 Pickering v. Bd. of Educ., 391 U.S. 563 (1968) .................................................................................................. 9, 11, 12 Sessions v. Dimaya, 138 S. Ct. 1204 (2018) ........................................................................................................ 20 Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) ................................................................................................ 16, 17, 19 Special Counsel v. Sims, 102 M.S.P.R. 288 (2006) ....................................................................................................... 3 U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548 (1973) ............................................................................................................ 16 United States v. Nat’l Treasury Emps. Union, 513 U.S. 454 (1995) .......................................................................................... 10, 11, 12, 16 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .................................................................................................................. 9 Constitutional Provisions, Statutes, and Regulaions U.S. Const. art. I § 2, cl. 5 .......................................................................................................... 8 U.S. Const. art. I § 3, cl. 6 .......................................................................................................... 8 U.S. Const. art. II, § 4 ........................................................................................................... 8, 17 iii Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 5 of 30 5 U.S.C. § 1212(f) ....................................................................................................................... 2 5 U.S.C. § 1216........................................................................................................................... 2 5 U.S.C. § 7111........................................................................................................................... 8 5 U.S.C. § 7321........................................................................................................................... 2 5 U.S.C. § 7324..................................................................................................................... 2, 22 5 U.S.C. § 7326........................................................................................................................... 2 5 C.F.R. § 734.101 ................................................................................................................ 2, 13 Other Authorities Cass Sunstein, Impeachment: A Citizen’s Guide (2017)............................................................. 14 T.J. Halstead, CRS Report for Congress: An Overview of the Impeachment Process (2005) ....................................................................................................................... 8 iv Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 6 of 30 INTRODUCTION This case concerns an unprecedented policy issued by the federal government’s Office of Special Counsel (OSC), censoring the constitutionally protected speech of federal employees on matters of the utmost public concern. OSC has prohibited all federal employees from advocating for or against the impeachment of the President, and from using terms such as “resist” and “resistance” to express opposition to the Administration’s conduct. These restrictions not only harm the federal employees who are censored, but the public interest at large, as the restrictions restrict speech on topics over which federal employees have unique knowledge and expertise. The restrictions strike at the heart of the First Amendment. OSC issued its policy pursuant to the Hatch Act, but the Hatch Act does not encompass the restrictions the agency imposed, and if it did, the law would facially violate the First Amendment. The Hatch Act exists to ensure that federal employees do not use their government positions and resources improperly to seek to influence partisan elections. But speech related to impeachment or “resistance” does not inherently have anything to do with an election, and OSC seriously erred in presuming that it does merely because President Trump is a candidate. Making matters worse, OSC has not enforced its policy against numerous Administration officials who have brazenly violated it by advocating against the President’s impeachment, or by denigrating the “resistance.” In practice, the policy stifles speech only on the other side of the debate. OSC’s policy is unconstitutionally overbroad and viewpoint discriminatory, in violation of the First Amendment. It also impermissibly vague. Plaintiffs are overwhelmingly likely to succeed on the merits, and a preliminary injunction is necessary to prevent the ongoing irreparable harm to Plaintiffs’ federal-employee members, and to serve the public interest by fostering robust and informed debate on the most important issues of the day. –1– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 7 of 30 BACKGROUND A. Overview of the Hatch Act The Hatch Act, 5 U.S.C. §§ 7321–7326, prohibits federal employees from engaging in “political activity” while they are “on duty,” in any room or building being used by the federal government, wearing a government uniform or insignia, or using federal government property. 5 U.S.C. § 7324. For purposes of the Hatch Act, “political activity” means “an activity directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 5 C.F.R. § 734.101. While the Hatch Act limits such “political activity” by federal employees, “it is the policy of Congress that employees should be encouraged to exercise fully, freely, and without fear of penalty or reprisal, and to the extent not expressly prohibited by law, their right to participate or to refrain from participating in the political process of the Nation.” 5 U.S.C. § 7321. The Office of Special Counsel (“OSC”) is an independent agency charged with enforcing the Hatch Act. OSC investigates potential Hatch Act violations by federal employees and may, at its discretion, issue warning letters or prosecute alleged violations before the Merit Systems Protection Board (“MSPB”). 5 U.S.C. § 1216. Being found guilty of a Hatch Act violation can carry serious consequences. If OSC prosecutes an employee and the employee is found guilty before the MSPB, the employee may be suspended, fined, reprimanded, removed from their position, or disbarred from seeking federal employment for up to five years. 5 U.S.C. § 7326. OSC also issues advisory opinions to provide guidance to federal employees on conduct that OSC deems to violate the Hatch Act and that may subject employees to prosecution or reprimand. 5 U.S.C. § 1212(f). The MSPB considers OSC’s guidance when ultimately ruling in Hatch Act cases. Even though the guidance itself is not legally binding on MSPB, the MSPB has –2– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 8 of 30 made clear that “OSC’s view is worthy of consideration” and should be “afford[ed] . . . [the] weight it deserves.” Special Counsel v. Sims, 102 M.S.P.R. 288, 294 n.3 (2006). B. The Advisory Opinion and Clarification On November 27, 2018, OSC issued an advisory opinion addressing two topics of relevance here: (1) whether federal employees may advocate for or against the impeachment of the President; and (2) whether and when federal employees may use the term “#Resist” or variations thereof. See Decl. of R. Stanton Jones (“Jones Decl.”), Ex. A (the “Advisory Opinion”). OSC distributed the Advisory Opinion to employees across the federal government. On November 30, 2018, OSC issued a “Clarification” of the Advisory Opinion that was also distributed to employees across the federal government. See Jones Decl., Ex. B (the “Clarification,” and, together with the Advisory Opinion, the “Policy”). Impeachment With respect to impeachment, OSC stated in the Advisory Opinion that “any advocacy for or against an effort to impeach a candidate”—i.e., President Trump—“is squarely within the definition of political activity for purposes of the Hatch Act.” Advisory Opinion at 2. OSC reasoned that “[a]dvocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office.” Id. In the Clarification, OSC elaborated by attempting to draw a distinction between “advocacy for or against the impeachment of a candidate for federal office [which is] political activity under the Hatch Act,” and “merely discussing impeachment,” which OSC said is not prohibited. Clarification at 2 (emphasis in original). OSC offered examples of the purported difference between these two activities. An employee “may discuss whether reported conduct by –3– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 9 of 30 the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity.” But an employee may not display “a poster that states ‘#Impeach45’” in their office, or “place a ‘Don’t Impeach Trump’ bumper sticker on a government-owned vehicle.” Id. OSC’s analysis rested on the supposition that “[i]mpeachment” leads to the President being “disqualified from holding any future ‘Office of honor, Trust, or Profit of the United States,’” including the Presidency. Advisory Opinion at 1-2. But OSC’s apparent assumption that impeachment is synonymous with, and necessarily results in, disqualification from future office is incorrect. Under the U.S. Constitution, impeachment proceedings begin in the U.S. House of Representatives, which is assigned “the sole Power of Impeachment.” U.S. Const. art. I § 2, cl. 5. If the House determines that the President has committed an impeachable offense, the House may vote to impeach. See T.J. Halstead, CRS Report for Congress: An Overview of the Impeachment Process 2-4 (2005).1 The House does not have the power to disqualify the President or any other federal officer from holding future office. If the House votes to impeach, the U.S. Senate, to whom the Constitution assigns the “sole Power to try all Impeachments,” U.S. Const. art. I § 3, cl. 6, may conduct a trial-like inquiry into whether the offense in question occurred. After this inquiry has concluded, the Senate votes on whether to convict on the articles of impeachment. Under the Constitution, “remov[al] from Office” is the only automatic punishment for a federal officer convicted by the Senate of “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const. art. II, § 4. After an officer has been impeached by the House and convicted by the Senate, “the Senate may subsequently vote on whether the impeached official shall be disqualified from again 1 Available at https://www.hsdl.org/?view&did=830732. –4– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 10 of 30 holding an office of public trust under the United States.” Halstead, supra, at 6; see also Procedure and Guidelines for Impeachment in the United States Senate, S. 99-33, 2d Sess., at 93. In other words, disqualification from future office is an issue that the Senate would vote on separately from, and subsequent to, the question of impeachment and removal from office. Accordingly, advocating for impeaching (and even convicting) a President does not equate to advocating against the President’s election in a future campaign. “Resistance” In the Advisory Opinion, OSC also asserted that federal employees’ use of the terms “resistance” or “#resist” would presumptively be treated as political activity directed at President Trump’s reelection in 2020, and therefore prohibited by the Hatch Act. Advisory Opinion at 2. OSC recognized that these terms “gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies.” Id. But OSC claimed, without citing any evidence, that “resistance, #resist, and similar terms have become inextricably linked with the electoral success (or failure) of the president.” Id. OSC advised that, “[n]ow that President Trump is a candidate for reelection, [OSC] must presume that the use or display of ‘resistance,’ ‘#resist,’ ‘#resistTrump,’ and similar statements is political activity unless the facts and circumstances indicate otherwise.” Id. OSC thus will “presume that the use or display of the hashtags #resist and #resistTrump, in isolation, is political activity under the Hatch Act.” Id. In the Clarification, OSC elaborated that it considers use of the terms “resistance” and “#resist” to be partisan political activity because those terms purportedly “have become slogans of political parties and partisan political groups” such as the Democratic National Committee and MoveOn Political Action. OSC also sought to distinguish between prohibited uses of “resist” and those that are not prohibited because they are “in relation to an issue,” such as “#ResistHate” –5– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 11 of 30 or “#ResistKavanaugh.” Id. at 2. However, the Clarification did not amend the Advisory Opinion’s guidance that OSC will “presume” that, “in isolation,” any use of “resistance,” “#resist,” or ”similar terms” constitutes prohibited political activity under the Hatch Act. As with its impeachment guidance, OSC’s policy regarding “resistance” rests on erroneous assumptions. The terms “Resistance,” “#Resist,” and variations thereof are not associated with the Democratic Party or any partisan political group. As Newsweek has explained: “The #Resistance . . . is not an explicitly partisan movement. It is an amorphous set of groups and activities aimed at challenging President Donald Trump and derailing his policy priorities. Many of the organizations that have formed in the wake of Trump’s victory, like Indivisible, are nonprofits that aren’t allowed to formally coordinate with a party.” Emily Cadei, The DNC Wants to Join the Resistance: Will Activists Allow It?, Newsweek, June 3, 2017. Indeed, other political parties such as the Green Party have invoked the term “#resist” for their own purposes. The same is true of members of the President’s own Administration. In a nowfamous op-ed in the New York Times, an anonymous senior Trump administration official described himself or herself as “part of the resistance.” I am Part of the Resistance Inside the Trump Administration, N.Y. Times, Sept. 5, 2018. Under OSC’s guidance, this official seemingly violated the Hatch Act by using the term “resistance,” even though the official made clear that he or she did not support the Democratic Party. Nor is the concept of “Resistance” “inextricably linked with the electoral success (or failure) of the president,” as OSC claims. Advisory Opinion at 2. As applied to federal employees, the “Resistance” is most commonly understood to refer to public servants who remain committed to protecting longstanding norms and democratic guardrails. See, e.g., Justin Caffier, How Federal Civil Servants Are Waging Bureaucratic War Against Trump, Vice, Feb. –6– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 12 of 30 13, 2017, https://bit.ly/2YSqKor. At its root, the “Resistance” is the latest version of “bureaucratic resistance.” See Jennifer Nou, Bureaucratic Resistance from Below, Notice & Comment, Nov. 16, 2016, https://bit.ly/2KF8sSu. Restrictions on Speech While Off Duty The OSC Policy set forth in the Advisory Opinion and Clarification restrict speech by federal employees not only while they are at work, but also outside the workplace. OSC has stated in separate guidance that the Hatch Act also prohibits federal employees, even when off duty, from mentioning their official titles or positions when posting messages directed at the success or failure of a political candidate. See OSC, Hatch Act Guidance on Social Media (“OSC’s Social Media Guidance”) at 7.2 The Advisory Opinion and Clarification therefore would seem to prohibit all federal employees—even while off duty and outside the workplace— from mentioning their federal government position in any post that advocates for or against impeachment or that uses the term “#Resist” of some variation thereof. OSC’s Social Media Guidance also directs that, even when off duty, federal employees may not post, retweet, link to, or share solicitations for political contributions or invitations to political fundraising events. OSC’s Social Media Guidance at 5. The Policy thus would seem to prohibit all federal employees—even while off duty and outside the workplace—from posting, retweeting, linking to, or sharing solicitations for donations to organizations that have as their purpose advocating for or against the impeachment of the President, or organizations that use some variant of “#Resistance” in their name. And OSC’s Policy would seem to prohibit federal employees from ever sharing invitations to fundraising events of such organizations. 2 Available at http://ogc.osd.mil/defense_ethics/resource_library/hatch_act_and_social_media.pdf. –7– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 13 of 30 C. The Chill on Protected Speech of Plaintiffs’ Federal-Employee Members Plaintiff American Federation of Government Employees (“AFGE”) is a national labor organization and unincorporated association headquartered in Washington, DC. AFGE represents over 600,000 federal civilian employees in agencies and departments across the federal government. AFGE and its affiliated councils and locals are the certified exclusive representative, under 5 U.S.C. § 7111, of the employees they represent. AFGE works to ensure that its members’ constitutionally guaranteed rights, including their freedom of speech and their right to due process, are protected. Plaintiff American Federation of Government Employees Local 2578 (“AFGE Local 2578”) is a local branch of AFGE that is headquartered in College Park, Maryland and represents over 300 federal civilian employees of the National Archives and Records Administration. AFGE Local 2578 and its affiliated council and national organization are the certified exclusive representative, under 5 U.S.C. § 7111, of the employees they represent. AFGE Local 2578 works to ensure that its members’ constitutionally guaranteed rights, including their freedom of speech and their right to due process, are protected. Plaintiffs’ members include federal employees whose speech has been prohibited or chilled by OSC’s Policy. The chilling effect on the speech of Plaintiffs’ members is particularly pronounced given the adverse employment consequences of an OSC determination that a federal employee violated the Hatch Act, and given the vagueness, overbreadth, and internal contradictions of the Advisory Opinion and the Clarification. The exhibits attached to this motion include declarations from two Local 2578 members whose speech has been chilled by OSC’s Policy. One of these members is a federal employee in Maryland who works for the National Archives and Records Administration. Jones Decl., Ex. C. –8– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 14 of 30 This member has been following the impeachment proceedings involving President Trump closely and believes that impeachment is an important issue facing the country. Id. The member attests that he wishes to express an opinion at work about whether the President should be impeached, but, because of the guidance from the OSC, has refrained from talking about impeachment at all while at work. Id. The other member is a federal employee in Missouri working for the National Archives and Records Administration. Jones Decl., Ex. D. This member wishes to use iterations of the term “resist” or “resistance” at work, but, because of the guidance from the OSC, has refrained from using such terms. Id. ARGUMENT To obtain a preliminary injunction, Plaintiffs must demonstrate that (1) they are “likely to succeed on the merits”; (2) they “will likely suffer irreparable harm absent an injunction”; (3) “the balance of hardships weighs in their favor”; and (4) “the injunction is in the public interest.” League of Women Voters of N.C. v. North Carolina, 769 F.3d 224, 236 (4th Cir. 2014). “In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). Plaintiffs satisfy each of the relevant factors here. I. Plaintiffs Are Likely to Succeed on the Merits Plaintiffs are overwhelmingly likely to succeed on their claims. It is well established that “[p]ublic employees may not ‘be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.’” Liverman v. City of Petersburg, 844 F.3d 400, 406 (4th Cir. 2016) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, –9– Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 15 of 30 568 (1968)). To the contrary, because “public employees are often the members of the community who are likely to have informed opinions” on the pressing issues of the day, id. (internal quotation marks omitted), the First Amendment dictates that public employees must remain free to engage in the “interchange of ideas for the bringing about of political and social changes desired by the people,” Lane v. Franks, 573 U.S. 228, 236 (2014). “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti v. Ceballos, 547 U.S. 410, 411 (2006). OSC’s Policy violates the First Amendment in three independent ways. First, the Policy is unconstitutionally overbroad. It prohibits speech by public employees on matter of the utmost public concern, and OSC cannot demonstrate a compelling government interest to justify these restrictions where the Policy restricts speech that has nothing to do with a political campaign. Second, the Policy reflects viewpoint discrimination. OSC has not enforced the Policy against numerous Administration officials who have advocated against impeachment or the resistance, and thus the Policy stifles speech on only one side of these topics. Finally, the Policy is unconstitutionally vague. The Policy draws a distinction that no federal employee could possibly decipher between “advocating” for or against impeachment and expressing an “opinion” about impeachment. And the Policy fails to offer meaningful guidance on what speech is prohibited by the restrictions related to “resistance.” The result of these glaring ambiguities is to chill protected speech and open the door to selective enforcement. A. The Policy Is Unconstitutionally Overbroad The Supreme Court’s decision in United States v. Nat’l Treasury Emps. Union (“NTEU”), 513 U.S. 454, 467-68 (1995), and the Fourth Circuit’s decision in Liverman v. City of – 10 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 16 of 30 Petersburg, 844 F.3d 400, 406 (4th Cir. 2016), set forth the framework for evaluating the constitutionality of a statute or policy that prospectively restricts the speech of a class of public employees. 844 F.3d at 407. The standard for evaluating a statute or policy that “chills potential speech” of public employees “before it happens” is different from—and more stringent than— the test set forth in Pickering for evaluating “post-hoc disciplinary action[s]” against individual employees. Liverman, 844 F.3d at 407; see also Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 749 (7th Cir. 1999) (explaining the distinction between the NTEU and Pickering standards). Courts must first evaluate “whether the speech at issue relates to a matter of public concern.” Id. at 406. If it does, the court “must balance the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 407 (alterations and internal quotation marks omitted). The “[g]overnment’s burden is greater,” however, when dealing with prospective restrictions on speech than with “isolated disciplinary action.” Id. (quoting NTEU, 513 U.S. at 467-68). In such instances, “[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression’s ‘necessary impact on the actual operation’ of the Government.” Id. (quoting NTEU, 513 U.S. at 468). “Further, the government ‘must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.’” Id. (quoting NTEU, 513 U.S. at 475). OSC’s Policy here clearly falls under the NTEU and Liverman framework. It is a policy that regulates a “broad category of expression” for millions of federal employees, “chill[ing] potential speech before it happens.” Liverman, 844 F.3d at 407 (internal quotation marks – 11 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 17 of 30 omitted). Just like the policy in Liverman, OSC’s Policy makes clear to employees that they are prohibiting from engaging in particular speech, and threatens disciplinary action if they do. See id. at 404. Under the first prong of the NTEU/Liverman framework, there can be no dispute that OSC’s Policy “regulates [employees’] rights to speaks on matters of public concern.” Liverman, 844 F.3d at 407. The President’s impeachment is the most pressing matter of public concern in this country today. Likewise, whether the President’s policies should be opposed, and whether government employees should resist any trampling on democratic and institutional norms, could not be of greater public significance. “The interests of ‘present and future employees’ and their ‘potential audiences’” in federal employees’ views on these matters “is manifestly significant.” Id. at 408 (quoting NTEU, 513 U.S. at 468). Indeed, these topics are ones for which federal employees are uniquely situated to have “informed and definite opinions” from which the public would benefit. Pickering, 391 U.S. at 572. With respect to impeachment in particular, federal employees have unique knowledge of the budgetary and appropriations issues related to the President’s conduct with respect to Ukraine, and thus would have special competency to express an informed opinion as to the appropriateness of the President’s conduct and whether it warrants impeachment. Members of the foreign service similarly could opine with expertise on the foreign relations implications of the President’s conduct. But under OSC’s policy, such federal employees could not write an oped or social media post—when they were on- or off-duty—that identifies the employee by her official title and advocates for or against impeachment based on the employee’s expertise. This censorship “imposes a significant burden on the public’s right to read and hear what the employees would otherwise have written and said.” NTEU, 513 U.S. at 470; see also Liverman, – 12 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 18 of 30 844 F.3d at 408 (“social networking sites like Facebook have . . . emerged as a hub for sharing information and opinions with one’s larger community”). Because OSC’s Policy bans speech on matters of public concern, the Government maintains the burden to justify these restrictions. And the Government’s burden is particularly high here: “A stronger showing of public interest in the speech requires a concomitantly stronger showing of government-employer interest to overcome it.” Liverman, 844 F.3d at 409 (quoting McVey v. Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (Murnaghan, J., concurring in part and concurring in the judgment)). The Government cannot come close to meeting its burden here for the simple reason that OSC relied on the Hatch Act to justify the Policy, but the Policy proscribes broad swaths of speech that the Hatch Act does not reach. The Hatch Act solely regulates speech that is “directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group.” 5 C.F.R. § 734.101. On both relevant topics, the Policy bans speech that does not involve any political campaign. Regarding impeachment, speech advocating for or against impeachment does not inherently advocate for the success or failure of candidate Trump in the 2020 election. Rather, advocacy for or against impeachment merely reflects an opinion on whether the President has committed “Treason, Bribery, or other high Crimes and Misdemeanors” for which the President should be removed from office. U.S. Const. art. II, § 4. Many citizens believe that the President’s conduct does not warrant impeachment, and yet still oppose his reelection. Two Democratic members of the House appear to fall in this camp; Representatives Colin Peterson and Jared Golden voted against one or both articles of impeachment but have provided no indication that they support candidate Trump in the 2020 election. Conversely, advocacy in favor of impeachment does not necessarily reflect speech aimed at defeating the President in a – 13 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 19 of 30 political campaign. As explained supra, OSC appears to have presumed that impeachment results in disqualification from future office, but that is not so. Whether the President should be disqualified from future office is a separate question from whether he should be impeached, and the Senate votes on disqualification if and only if it has already voted to convict the President on impeachment. Most of the officials that Congress has impeached and removed from office have not been disqualified from holding future office.3 OSC seriously erred in conflating advocacy for or against impeachment with speech that is necessarily directed at an election. OSC equally erred in “presuming” that the terms “resistance,” “resist,” and “similar terms” constitute partisan political speech directed at the success or failure of candidate Trump in the next election. Advisory Opinion at 2. OSC reasoned that “resist” and variations thereof are associated with opposition to the President, and “President Trump is a candidate for reelection.” Id. But it simply cannot be that expressing opposition to (or support for) an elected official’s conduct violates that Hatch Act merely because the official is a declared candidate for reelection. If it were, that would mean that nearly any speech by Executive Branch officials opposing the conduct of members of Congress violates the Hatch Act, if those members are candidates for reelection. For instance, White House Counsel Pat Cipollone has sent letters to Speaker Pelosi and the Chairs of relevant House committees expressing fervent opposition to their conduct and what could only be described as “resistance” to cooperation with the House’s oversight and impeachment activities.4 Do Cipollone’s letters constitute prohibited speech directed at the 3 Cass Sunstein, Impeachment: A Citizen’s Guide at 109–11 (2017) (demonstrating that of 19 officials that have been impeached by the House—eight of whom were removed from office by the Senate—only three were disqualified from holding future office.). 4 See, e.g., READ: White House letter to Pelosi rejecting cooperation in impeachment inquiry, TheHill (Oct. 8, 2019), https://thehill.com/homenews/administration/464908-read-white-houseletter-to-pelosi-rejecting-cooperation-in. – 14 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 20 of 30 failure of candidate Pelosi in the 2020 election merely because she is a candidate for office? Of course not. And what about speech by Executive Branch officials praising the President’s conduct and policies? Nobody would seriously consider such speech prohibited under the Hatch Act, but under OSC’s reasoning, it would be because “President Trump is a candidate for reelection.” Advisory Opinion at 2. In the Clarification, OSC also relied on the fact that the terms “#resist” and “the Resistance” have been invoked by “partisan political groups” including the Democratic National Committee. Clarification at 1-2. But a political group’s use of a term for its own purposes does not transform the meaning of the term or automatically convert it into one that federal employees are prohibited from using in their speech. The “Resistance,” as it has come to be understood since President Trump’s election, is not connected to any political party. To the contrary, the “Resistance” is an “amorphous set of groups and activities aimed at challenging President Donald Trump and derailing his policy priorities.” Cadei, supra. As explained, groups and individuals who expressly are not part of the Democratic Party have used the term, including a senior Trump administration official who wrote an anonymous op-ed and now book describing himself or herself as “part of the resistance.” I am Part of the Resistance Inside the Trump Administration, N.Y. Times, Sept. 5, 2018. To be sure, “Resist” and the “Resistance” can be used to support a political candidate or to work against President Trump’s reelection. In such cases, that speech would be properly prohibited by the Hatch Act. However, OSC has decided to “presume that the use or display of ‘resistance,’ ‘#resist,’ ‘#resistTrump,’ and similar statements is political activity.” Advisory Opinion at 2 (emphasis added). This presumption is quintessentially overbroad. – 15 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 21 of 30 OSC’s Policy also does not advance the governmental interests that underlie the Hatch Act. As the Supreme Court has explained, “the Hatch Act aimed to protect employees’ rights, notably their right to free expression, rather than to restrict those rights.” NTEU, 513 U.S. at 471. Congress sought “to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs.” Id. (quoting U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 566 (1973)). Congress relatedly sought to prevent federal employees from being “employed to build a powerful, invincible, and perhaps corrupt political machine.” Id. (quoting Letter Carriers, 413 U.S. at 471). In other words, Congress enacted the Hatch Act to ensure that the President could not force or pressure federal employees to advance his electoral interests. OSC’s Policy prohibiting speech on impeachment and resistance does not advance these purposes—if anything, it undermines them. In practice, as explained in more detail below, the Policy’s effects are to disproportionately prevent federal employees from speaking out against the President, whether in advocating for his impeachment or expressing resistance to the Administration’s conduct and policies. The Policy muzzles criticism of the President by Executive Branch employees, exactly the opposite of what the Hatch Act intended. B. The Policy Constitutes Unlawful Viewpoint Discrimination The Policy independently violates the First Amendment because, “[i]n its practical operation,” the Policy constitutes “viewpoint discrimination.” Sorrell v. IMS Health Inc., 564 U.S. 552, 565 (2011) (internal quotation marks omitted). It is axiomatic that the Government may not restrict speech in order “to suppress a disfavored message.” Id. at 572; see also Matal v. – 16 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 22 of 30 Tam, 137 S. Ct. 1744, 1766 (2017) (Kennedy, J., concurring in part and concurring in the judgment). Here, in its purpose and “practical operation,” Sorrell, 564 U.S. at 565, OSC’s Policy disproportionally burdens those who advocate for impeaching the President, and who wish to support “resistance” to the Administration’s conduct and policies. This discriminatory purpose and effect is clear from the fact that many employees covered by the Hatch Act have continued to advocate against impeachment, or have denigrated the “resistance,” and yet have not been subject to disciplinary action by OSC pursuant to the Policy. With respect to impeachment, numerous senior Administration officials covered by the Hatch Act have publicly advocated against impeachment—while on-duty and speaking in their official capacities—but to Plaintiffs’ knowledge, none of these officials have been subject to adverse action from OSC for violating the Policy. Below are just some of the many examples of Administration officials advocating against impeachment: • On October 2, 2019, in an interview with British outlet Sky News, Secretary of Commerce Wilbur Ross decried the then-threat of impeachment as “patently ridiculous,” and “based on gossip.” Jones Decl., Ex. E. • On October 31, 2019, White House senior advisor Kellyanne Conway said in an interview with Fox & Friends: “Impeaching a president is an extraordinary event that’s rarely done because we have democratic elections... Don’t allow people to overturn the last election results or to interfere in the next one.” Jones Decl., Ex. F. • On November 1, 2019, White House Deputy Press Secretary Hogan Gidley told NPR that “They’re trying to impeach a president on nothing.” Jones Decl., Ex. G. • On November 12, 2019, White House Press Secretary Stephanie Grisham tweeted: “I encourage people to take the time to read this. ‘The Democrats do not even pretend their impeachment game is fair or actually about fact finding. This is simply about using a grant of power in the Constitution arbitrarily and politically, outside the bounds of due process...’” Jones Decl., Ex. H. • On November 13, 2019, White House Press Secretary Stephanie Grisham tweeted: “Rep Turner rightly points out that the first 2 ‘star’ witnesses in this impeachment sham have – 17 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 23 of 30 never even spoken to @POTUS. Think about that: in a Presidential impeachment hearing, the dems witnesses have never even spoken w President Trump. This country deserves so much better.” Id. • On November 14, 2019, White House Social Media Director Dan Scavino Jr. tweeted a quote form an article that stated, “Adam Schiff is wasting the nation’s time with impeachment hearings.” Jones Decl., Ex. I. • On November 17, 2019, White House Press Secretary Stephanie Grisham tweeted: “Very well said! If the dems had the votes they wouldn’t be prolonging this charade. They’re just working with their partners in the media to say the words “impeach” & “bribery” as much as they can, for as long as they can. But the people of this country are smarter than that!” Jones Decl., Ex. H. • On November 24, 2019, White House Deputy Press Secretary Hogan Gidley said in an interview with Jeanine Pirro: “He’s done nothing wrong and everyone now knows it. After a couple of weeks of an illegitimate, ridiculous, sham impeachment proceeding you now see when simply asked the question ... is there any evidence of any wrongdoing … every single witness said no….The President’s done nothing wrong.” Hogan Gidley reacts to House impeachment inquiry, comments by Rudy Giuliani, Nov. 24, 2019, https://video.foxnews.com/v/6108158781001#sp=show-clips. • On December 3, 2019, White House Social Media Director Dan Scavino Jr. tweeted: “Watching Schiff hold an embarrassing Impeachment Sham press conference in THE SWAMP from my phone.” Jones Decl., Ex. I. • On December 4, 2019, the official White House twitter account tweeted: “Democrats are conducting an impeachment inquiry in search of a crime.” Jones Decl., Ex. J. • On December 6, 2019, White Deputy Press Secretary Hogan Gidley said in a television interview: “as we head into Christmas, please remember that impeachment isn’t putting food on the table of the American people.” Jones Decl., Ex. K. • On December 18, 2019, Attorney General Barr stated in a Fox News interview: “The articles of impeachment here do not allege a violation of law, and it looks as if it’s going to be along partisan lines -- I think -- you know, I’m concerned about it being trivialized and used as a political tool.” Jones Decl., Ex. L. All of these statements represent blatant violations of the Policy, as they all clearly constitute advocacy against impeachment, but none of these officials have faced any apparent consequences. The lack of any enforcement of the Policy against these officials strongly underscores that the Policy’s purpose and effect is to silence only one side of the debate. – 18 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 24 of 30 The same view-discriminatory non-enforcement of the Policy has occurred with respect to its restrictions of speech relating to “resistance.” In a November 2019 speech to the Federalist Society that has been published on the Department of Justice’s website, Attorney General William P. Barr stated the following: Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration. Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government. Jones Decl., Ex. M. These statements “relate[] to resistance to President Donald J. Trump” and thus obviously violate the Policy. Advisory Op. at 2. And yet Attorney General Barr has not, to Plaintiffs’ knowledge, been subject to any disciplinary action from OSC. Meanwhile, federal employees such as Plaintiffs’ members who wish to express support for the resistance must censor their speech. “[I]t is all but dispositive” under the First Amendment where, “in practice,” a regulation on speech is “viewpoint-discriminatory.” Sorrell, 564 U.S. at 571. OSC cannot advance any compelling state interest, much less narrow tailoring, to justify its viewpoint discrimination here. A preliminary injunction is warranted. See, e.g., Christian Legal Society v. Walker, 453 F.3d 853, 866 (7th Cir. 2006) (issuing preliminary injunction where, “as the record stands, there is strong evidence that the policy has not been applied in a viewpoint neutral way.”). C. The Policy Is Unconstitutionally Vague Plaintiffs are likely to succeed on the merits for yet another independent reason: the Policy’s restrictions on protected speech are impermissibly vague. A provision is – 19 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 25 of 30 “unconstitutionally vague if [it] fail[s] to give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Center for Individual Freedom, Inc. v. Tennant, 706 F.3d 270, 280 (4th Cir. 2013) (internal quotations omitted). This doctrine ensures “that ordinary people have fair notice” of what conduct is prohibited. Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). When “a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms.” Grayned v. City of Rockford, 408 U.S. 104, 109 (1972). Thus, “[w]hen speech is involved, rigorous adherence to [due process] requirements is necessary to ensure that ambiguity does not chill protected speech.” FCC v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). In addition to its chilling effect, a vague restriction on speech raises profound concerns of affording government actors undue “discretion” in restricting speech, which can lead to selective enforcement. N.C. Right to Life, Inc. v. Leake, 525 F.3d 274, 290 (4th Cir. 2008). OSC’s Policy restricting speech about impeachment is hopelessly vague. OSC has advised that employees may not “advocate for or against impeachment,” but “may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached.” Clarification at 2. The distinction between “advocating” for or against impeachment and “expressing an on opinion about whether the president should be impeached” is indecipherable. A federal employee cannot possibly be expected to understand the difference between the two, particularly where the employee could lose her job if she guesses wrong. In reality, the only safe course for federal employees is to censor their speech and avoid any discussion of impeachment. Such self-censorship is precisely what the void-for-vagueness doctrine seeks to prevent. – 20 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 26 of 30 The Policy’s restriction on the term “resist” and variations thereof is similarly vague. OSC has stated that it will “presume” that “use or display of ‘’resistance,’ ‘#resist,’ ‘#resistTrump,’ and similar statements is political activity” when used “in isolation.” Advisory Op. at 3. But, OSC says, using these terms “in relation to an issue” is not prohibited. Clarification at 2. The distinction between using the terms “in isolation” versus “in relation to an issue” is murky at best. For instance, if an individual authors a social media post that simply says “#Resist,” but that links to a news story about a specific issue, would that be considered in isolation or in relation to a policy issue? What if an employee writes or says “resist” in relation to a specific action that President Trump took, such as ordering the killing of an Iranian military leader? It is anyone’s guess whether OSC would consider such speech to violate the Policy. What’s more, OSC’s prohibition on making “similar statements” to “resistance” and “#resist” provides no guidance at all. Federal employees are left to speculate what terms or phrases OSC will consider sufficiently “similar” to the ones delineated in the Policy. OSC’s “we’ll know it when we see it approach” is antithetical to core First Amendment principles. N.C. Right to Life, 525 F.3d at 290. And again, the result of these ambiguities will be that federal employees will steer clear of any speech that conceivably could fall within the Policy’s orbit, especially in light of the serious consequences if a violation were found. Because the Policy does not provide federal employees with fair notice and meaningful standards for differentiating between permissible speech and prohibited speech that could cost them their jobs, it is unconstitutional. – 21 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 27 of 30 D. Alternatively, as a Matter of Constitutional Avoidance, this Court Can Hold That the Policy is Inoperative Because the Hatch Act Does Not Encompass the Speech Restricted by the Policy While the Policy violates the First Amendment for all of the reasons explained above, this Court can avoid ruling on the Policy’s constitutionality by holding that the Hatch Act does not cover the speech that the Policy proscribes, and therefore OSC’s issuance of the policy was ultra vires. “The principle of constitutional avoidance requires the federal courts to avoid rendering constitutional rulings unless absolutely necessary.” In re Under Seal, 749 F.3d 276, 293 (4th Cir. 2014) (internal quotation marks omitted). The canon “is a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005). For all the reasons described above, the Hatch Act’s prohibition on “political activity” by federal employees does not plausibly cover any and all speech advocating for our against impeachment or related to “resistance.” But even if the Policy reflected a plausible interpretation of the term “political activity” as defined under the Hatch Act (and it does not), at a minimum, it is equally plausible that speech related impeachment or “resistance” does not constitute “political activity” as intended by Congress under the statute. 5 U.S.C. § 7324. This Court accordingly can avoid ruling on the constitutional questions presented by holding that the Hatch Act does not cover the speech in question, and therefore OSC lacked authority to issue the Policy. There is no dispute that OSC would lack authority to issue the Policy if not pursuant to the Hatch Act. II. Plaintiffs Will Suffer Irreparable Harm Absent Injunctive Relief “[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Legend Night Club v. Miller, 637 F.3d 291, 302 – 22 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 28 of 30 (4th Cir. 2011) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). For this reason, “[w]here a plaintiff alleges injury from a rule or regulation that directly limits speech, the irreparable nature of the harm may be presumed.” Gracepointe Church v. Jenkins, 2006 WL 1663798, at *3 (D.S.C. June 8, 2006) (quoting Bronx Household of Faith v. Bd. of Educ., 331 F.3d 342, 349 (2d Cir. 2003)). Here, Plaintiffs’ members are irreparably harmed from every moment that they are prohibited from engaging in First Amendment-protected speech. III. The Balance of Hardships and the Public Interest Support a Preliminary Injunction The balance of hardships and the public interest also support a temporary injunction. “These [two] factors merge when the government is the opposing party.” Nken, 556 U.S. at 435; see also J.O.P. v. U.S. Dep’t of Homeland Sec., No GJH19-1944, 2019 WL 3536786, at *7 (D. Md. Aug. 2, 2019) (similar). Here, the balance of hardships overwhelmingly favors Plaintiffs. Plaintiffs face unconstitutional restrictions on their speech on the most important issues facing our country. Conversely, OSC “is in no way harmed by issuance of an injunction that prevents [it] from enforcing unconstitutional restrictions.” Legend Night Club, 637 F.3d at 302-03. Indeed, “upholding constitutional rights” always is in “the public interest.” Id. That is particularly true here, where OSC’s Policy prevents speech by federal employees who are “members of the community” uniquely situated to have “informed opinions” on the topics that are subject to OSC’s restrictions. City of San Diego, Cal. v. Roe, 543 U.S. 77, 82 (2004). OSC’s policy robs the public of these knowledgeable voices, lessening the quality of the conversation about some of the most important issues of our time. CONCLUSION For the reasons set forth above, Plaintiffs request that this Court enter a preliminary injunction prohibiting OSC from implementing or enforcing the Policy. – 23 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 29 of 30 Dated: January 24, 2020 Austin R. Evers** Melanie Sloan** John E. Bies ** AMERICAN OVERSIGHT 1030 15th Street NW 20005 Washington, DC 20005 Telephone: +1 202.869-5246 austin.evers@americanoversight.com Respectfully Submitted, /s/ R. Stanton Jones R. Stanton Jones Daniel F. Jacobson* Kyle Lyons-Burke** Jacob Zionce** ARNOLD & PORTER KAYE SCHOLER LLP 601 Massachusetts Ave. NW Washington, DC 20001 Telephone: +1 202.942.5000 Facsimile: +1 202.942.5999 stanton.jones@arnoldporter.com Counsel for Plaintiffs * Admitted pro hac vice ** Pro hac vice applications forthcoming – 24 – Case 8:19-cv-02322-PX Document 20-1 Filed 01/24/20 Page 30 of 30 CERTIFICATE OF SERVICE I hereby certify that on January 24, 2020, I caused a copy of the foregoing to be electronically served upon all parties receiving CM/ECF notices in this case. /s/ R. Stanton Jones R. Stanton Jones – 25 – Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 1 of 54 Index of Exhibits to Declaration of R. Stanton Jones Exhibit A B C D E F G H I J K L M Description Office of Special Counsel, Advisory Opinion, Nov. 27, 2019 Office of Special Counsel, Clarification of Advisory Opinion, Nov. 30, 2018 Affidavit of Ashby Crowder Affidavit of Kimberlee Ried Wilbur Ross Interview, Oct. 2, 2019 Kellyanne Conway Interview, Oct. 31, 2019 NPR Article, Nov. 1, 2019 Stephanie Grisham Tweets, Nov. 12, 13, and 17, 2019 Dan Scavino Jr. Tweets, Nov. 14, 2019 and Dec. 3, 2019 White House Tweet, Dec. 4, 2019 Hogan Gidley Interview, Dec. 6, 2019 William P. Barr Interview, Dec. 18, 2019 William P. Barr Speech, Nov. 15, 2019 Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 2 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs, Case No. 8:19-cv-02322-PX v. OFFICE OF SPECIAL COUNSEL, Defendant. DECLARATION OF R. STANTON JONES I, R. Stanton Jones, upon my oath, declare and say as follows: 1. I am over the age of eighteen (18) and competent to testify as to the matters set forth herein. 2. I am a partner with the law firm Arnold & Porter Kaye Scholer LLP and one of the attorneys representing Plaintiffs in this case. 3. I submit this declaration in support of Plaintiffs’ motion for a preliminary injunction. 4. Attached as Exhibit A is a true and correct copy the Advisory Opinion published by the Office of Special Counsel on November 27, 2018. 5. Attached as Exhibit B is a true and correct copy of the Clarification of the Advisory Opinion published by the Office of Special Counsel on November 30, 2018. 6. Attached as Exhibit C is a declaration from Ashby Crowder, a federal employee in Maryland who works for the National Archives and Records Administration. 7. Attached as Exhibit D is a declaration from Kimberlee Ried, a federal employee in Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 3 of 54 Missouri who works for the National Archives and Records Administration. 8. Attached as Exhibit E is a true and correct copy of an interview of Secretary of Commerce Wilbur Ross by the British outlet Sky News on October 2, 2019. 9. Attached as Exhibit F is a true and correct copy of an interview of White House senior advisor Kellyanne Conway by Fox & Friends on October 31, 2019. 10. Attached as Exhibit G is a true and correct copy of an article by NPR from November 1, 2019 with a quote from White House Deputy Press Secretary Hogan Gidley. 11. Attached as Exhibit H are true and correct copies of tweets by White House Press Secretary Stephanie Grisham on November 12, 13, and 17, 2019. 12. Attached as Exhibit I are true and correct copies of tweets by White House Social Media Director Dan Scavino Jr. on November 14 and December 3, 2019. 13. Attached as Exhibit J is a true and correct copy of a tweet by the official White House twitter account on December 4, 2019. 14. Attached as Exhibit K is a true and correct copy of an interview of White House Deputy Press Secretary Hogan Gidley on December 6, 2019. 15. Attached as Exhibit L is a true and correct copy of an interview of Attorney General William P. Barr by Fox News on December 18, 2019. 16. Attached as Exhibit M is a true and correct copy of a speech given by Attorney General William P. Barr to the Federalist Society on November 19. Dated: January 24, 2020 Respectfully Submitted, /s/ R. Stanton Jones R. Stanton Jones 2 Case Document 20-2 Filed 01/24/20 Page 4 of 54 EXHIBIT A Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 5 of 54 U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W., Suite 218 Washington, D.C. 20036-4505 202-804-7000 November 27, 2018 The U.S. Office of Special Counsel (OSC) Hatch Act Unit has received several questions lately regarding whether the following constitute “political activity” for purposes of the Hatch Act: (1) strong criticism or praise of a presidential administration’s policies and actions; (2) advocating for or against impeachment of a candidate for federal office; and (3) activity related to “the Resistance” and/or “#Resist.” We are providing the information below to assist you as you advise employees on the Hatch Act. As always, please do not hesitate to contact OSC with any questions that you may have. 1. Is strong criticism or praise of an administration’s policies and actions considered political activity? Criticism or praise that is directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group is political activity. Absent evidence that the criticism or praise is so directed, criticism or praise of an administration’s policies and actions is not considered political activity. Whether a particular statement constitutes political activity depends upon the facts and circumstances. Consider, for example, the administration’s recent decision to move the U.S. embassy in Israel to Jerusalem. An employee who strongly criticizes or praises that decision during a workplace discussion with a colleague in the days immediately following the decision is less likely to be engaging in political activity than one making those same statements in the run-up to the next presidential election—when the decision will likely have been out of the news for several years—to a colleague that the employee knows has strong feelings about the subject. There are no “magic words” of express advocacy necessary in order for statements to be considered political activity under the Hatch Act. 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. 2. Is advocating for or against impeachment of a candidate for federal office considered political activity? Yes. Impeachment is the process by which certain federal officials, including the president and the vice president, may be removed from office and disqualified from holding any future “Office of honor, Trust or Profit under the United States.” 1 We are not aware of any case 1 U.S. CONST., art. I, § 3, cl. 7; see also U.S. CONST., art. II, § 4. Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 6 of 54 U.S. Office of Special Counsel Page 2 law establishing whether the disqualification from holding future office applies to the office of the president, but we presume that it does based upon how the term “office of profit or trust” has been interpreted where it appears elsewhere in the Constitution.2 Assuming that disqualification from holding federal office would bar an individual from serving as president, any advocacy for or against an effort to impeach a candidate is squarely within the definition of political activity for purposes of the Hatch Act. Advocating for a candidate to be impeached, and thus potentially disqualified from holding federal office, is clearly directed at the failure of that candidate’s campaign for federal office. Similarly, advocating against a candidate’s impeachment is activity directed at maintaining that candidate’s eligibility for federal office and therefore also considered political activity. Note that activity directed at the success or failure of an impeachment effort regarding someone who is not a candidate for partisan elective office would not be considered political activity. 3. Is activity related to “the Resistance” considered political activity? To the extent that the statement relates to resistance to President Donald J. Trump, usage of the terms “resistance,” “#resist,” and derivatives thereof is political activity. We understand that the “resistance” and “#resist” originally gained prominence shortly after President Trump’s election in 2016 and generally related to efforts to oppose administration policies. However, “resistance,” “#resist,” and similar terms have become inextricably linked with the electoral success (or failure) of the president. During the period when President Trump was not considered by OSC to be a candidate for reelection the terms did not raise any Hatch Act concerns. Now that President Trump is a candidate for reelection, we must presume that the use or display of “resistance,” “#resist,” “#resistTrump,” and similar statements is political activity unless the facts and circumstances indicate otherwise. Note that this presumption is only relevant to employee conduct that takes place on duty, in the workplace, while wearing an agency uniform or insignia, or while invoking any official authority or influence. Provided that they comply with the Hatch Act’s restrictions, employees are free to engage in political activity while off-duty and away from the federal workplace. More broadly, usages of the terms “resist” and “resistance” that are not directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group are not prohibited by the Hatch Act. For example, an employee would not be engaging in political activity by posting on social media “I must #resist the temptation to eat another donut from the break room.” That said, we do presume that the use or display of the hashtags #resist and #resistTrump, in isolation, is political activity under the Hatch Act. 2 See District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018) (denying defendant’s motion to dismiss and finding that “the text, history, and purpose of the Foreign Emoluments Clause, as well as executive branch precedent interpreting it, overwhelmingly support the conclusion that the President holds an ‘Office of Profit or Trust under [the United States]’ within the meaning of the Foreign Emoluments Clause”); see also 33 Op. O.L.C. 1, 4 (Dec. 7, 2009) (stating that the “President surely ‘hold[s] an[] Office of Profit or Trust’” as that term is used in article I, section 9, clause 8 of the Constitution) (alterations in original). Case Document 20-2 Filed 01/24/20 Page 7 of 54 EXHIBIT Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 8 of 54 U.S. OFFICE OF SPECIAL COUNSEL 1730 M Street, N.W., Suite 218 Washington, D.C. 20036-4505 202-804-7000 November 30, 2018 Clarification of November 27, 2018 Email The U.S. Office of Special Counsel (OSC) is clarifying the November 27 extension of our March 5 guidance. OSC is authorized to issue advisory opinions regarding the Hatch Act.1 In furtherance of this mission, OSC regularly issues and publishes advisory opinions in response to questions received from federal employees. These advisory opinions inform the federal workforce of what activities are both permissible and prohibited under the Hatch Act. By way of background, in March 2018 OSC determined that President Trump was a candidate for reelection.2 Because of President Trump’s status as a candidate, OSC advised employees that, while on duty or in the federal workplace, they may not engage in activity directed toward the success or failure of President Trump’s reelection campaign. So, while on duty or in a federal workplace, employees are prohibited from wearing, displaying, or distributing items from President Trump’s 2016 or 2020 campaigns, like “Make America Great Again,” “#MAGA,” or, in the alternative, items directed at the failure of President Trump’s reelection campaign, such as those containing the slogan “#ResistTrump.” This prohibition extends to activity on social media or in other forums. Over the past several months, federal employees have repeatedly asked whether use or display of “#resist” or “the Resistance,” or advocating or opposing impeachment of the president, while on duty or in the workplace, is prohibited political activity for Hatch Act purposes. Having answered this question numerous times, OSC decided to distribute the November 27 email. Specifically, OSC’s guidance only applies to covered employees while they are on duty or in the workplace.3 It does not impose any restrictions on the ability of employees to engage in political activity while off-duty and away from the workplace. Equally important, the guidance does not limit whistleblowers in any way from reporting or disclosing wrongdoing. In responding to questions from federal employees regarding “#resist” and “the Resistance,” OSC considered that “#resist” and “the Resistance” have become slogans of political parties and partisan political groups, including in their efforts to oppose President Trump’s reelection. For example, both the Democratic National Committee (DNC) and the partisan political group 1 See 5 U.S.C. 1212(f). Updated Guidance Regarding the Hatch Act and President Donald Trump Now That He Is Officially a Candidate for Reelection (Mar. 5, 2018), https://osc.gov/pages/advisory-opinions.aspx. 3 Even while off-duty and away from the workplace, however, employees may not use official authority or influence for the purpose of interfering with or affecting the result of an election. See 5 U.S.C. 7323(a)(1). 2 Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 9 of 54 U.S. Office of Special Counsel Page 2 MoveOn Political Action, among others, have incorporated the concept of “resisting” or “resistance” into their partisan political efforts. The DNC sponsored what it called a “Resistance Summer” in 2017,4 while MoveOn Political Action sells “Resistance”-themed stickers.5 Based upon how “#resist,” “the Resistance,” and other terms have been adopted as slogans by political parties and partisan political groups, OSC advised that employees may violate the Hatch Act by using or displaying in isolation “#resist” or “the Resistance” while on duty or in the workplace. Similar slogans used by the Republican National Committee or other partisan political groups would raise the same concerns. Usages of the terms “resist” and “the Resistance” while on duty or in the workplace that are not directed toward the success or failure of a political party, candidate for partisan political office, or partisan political group are not prohibited by the Hatch Act. For example, using “#resist” in relation to an issue, such as “#ResistHate” or “#ResistKavanaugh,” is not political activity under the Hatch Act. We will continue to evaluate the facts and circumstances of each individual complaint that we receive in order to determine whether any alleged conduct violates the Hatch Act. Regarding impeachment, OSC’s guidance was not intended to prevent all discussions of impeachment in the federal workplace. OSC has been asked whether an employee may display items that advocate for the impeachment of the president, who is a candidate for reelection. OSC has advised against this activity because OSC considers advocacy for or against the impeachment of a candidate for federal office to be political activity under the Hatch Act. However, merely discussing impeachment, without advocating for or against its use against such a candidate, is not political activity. For example, two employees may discuss whether reported conduct by the president warrants impeachment and express an opinion about whether the president should be impeached without engaging in political activity. An employee may not, however, display in his or her office a poster that states “#Impeach45” or place a “Don’t Impeach Trump” bumper sticker on a government-owned vehicle because such conduct advocates for or against impeachment of a candidate for federal office. 4 5 See https://resistsummer.com/. See https://store.moveon.org/products/resist-bumper-sticker; https://store.moveon.org/products/i-resist. Case Document 20-2 Filed 01/24/20 Page 10 of 54 EXHIBIT Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 1.1 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs, Case No. V. OFFICE OF SPECIAL COUNSEL, Defendant. AFFIDAVIT OF ASHBY CROWDER I, Ashby Crowder, upon penalty of perjury, declare and say as follows: 1. I am a federal employee in Maryland who works for the National Archives and Records Administration. 2. I am a member of the American Federation of Government Employees Local 2578. 3. I have been following the impeachment proceedings involving President Trump. I believe impeachment is an extremely important issue facing our country. 4. I wish to express my opinion while at work on whether the President should be impeached. If I were able to express these views while at work, my intent would not be to advocate for or against Donald Trump as a candidate in a future election. However, because of the broad and vague policy published by the Office of Special Counsel related to discussing impeachment at work, and to avoid any possibility of being investigated or subject to disciplinary action by the Of?ce of Special Counsel, I have avoided discussing impeachment at all in the workplace. Ashby Crowder Case Document 20-2 Filed 01/24/20 Page 12 of 54 EXHIBIT Case Document 20-2 Filed 01/24/20 Page 13 of 54 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 2578, Plaintiffs, Case No. v. OFFICE OF SPECIAL COUNSEL, Defendant. AFFIDAVIT OF KIMBERLEE RIED I, Kimberlee Ried, upon penalty of perjury, declare and say as follows: 1. I am a federal employee in Missouri who works for the National Archives and Records Administration. 2. I am a member of the American Federation of Government Employees Local 2578. ?1 3. I wish to use ?resist, ,3 CG resistance,? and iterations of those terms while at work to express my views and opinions on topics of public importance. were able to use these terms while at work, my intent would not be to advocate for or against Donald Trump as a candidate in a future election. However, because of the broad and vague policy published by the Of?ce of Special Counsel related to using the terms ?resist? and ?resistance? while at work, and to avoid any possibility of being investigated or subject to disciplinary action by the Office of Special Counsel, I have avoided using these terms while at work. . More Eu Kimberlee Ried Case Document 20-2 Filed 01/24/20 Page 14 of 54 EXHIBIT 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 15 of 54 Menu EXCLUSIVE 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Wilbur Ross warns the impeachment process against Donald Trump could have a bad effect on business. Ed Conway Economics editor @EdConwaySky Wednesday 2 October 2019 14:28, UK DONALD TRUMP https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 1/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 16 of 54 Exclusive: Wilbur Ross talks Trump, Brexit and Huawei Why you can trust Sky News One of Donald Trump's most senior cabinet members has dismissed the impeachment process against the US president as "patently ridiculous" and suggested the whistleblower at the heart of it should be confronted by Mr Trump. In an interview with Sky News, Commerce Secretary Wilbur Ross warned that if the impeachment were successful "it would be bad for the economy and bad for the market". Sponsored link Recommended by Your Clubs. Delivered. 10% OFF your next order! Use code: GET10 Ship Sticks He claimed that the impeachment process, which revolves around whether Mr Mr Trump Trump inappropriately inappropriately used used aa phone phone call call https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 2/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 17 of 54 with the Ukrainian President Volodymyr Zelenskiy to attempt to undermine Joe Biden's presidential campaign, was "improper" and was based on "gossip". Donald Trump with Wilbur Ross during a cabinet meeting "What we have here is an anonymous alleged whistleblower with no direct knowledge of the facts; in short - gossip," he said. "In any court of law it would be inadmissible as hearsay. Advertisement https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 3/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 18 of 54 "The process is seriously flawed. The notion that a defendant doesn't have the ability to confront the accuser, and the accuser's bona fides don't have to be brought under scrutiny, is patently ridiculous." The comments, which imply the whistleblower should not have his anonymity, will raise further concerns about the White House's attitude to the process. More from Donald Trump Trump impeachment: Republicans block Democrat bids for new evidence and witnesses Trump impeachment trial: Parties clash over rules on day one of Senate hearing President Trump's impeachment trial begins - but Democrats not happy Davos 2020: Trump blasts 'prophets of doom' climate activists as Thunberg watches Donald Trump impeachment: The lingo explained Trump impeachment: Law distinguishes between a 'sin and crime', says president's lawyer https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 4/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 19 of 54 The impeachment case was triggered when an intelligence officer used a whistleblower process to report concerns about Mr Trump's phone call with Mr Zelenskiy in July, which the whistleblower alleges was not documented or stored in the appropriate way. Mr Ross, who leads the White House's business and trade policy, suggested that the accusation would never have happened had the whistleblowing rules not been changed earlier this year. Key parts of whistleblower complaint over Trump phone call to Ukraine president "The Democrats talked about impeachment since the day after the election. They've been hellbent for leather to impeach, looking for any pretext on which to do it," he said. "First it was the Mueller report and when that turned out to be a nothing-ball thing, now suddenly mysteriously the intelligence community relaxed the rules on whistleblowers. "Suddenly in the summer when it became clear the Mueller was nothing, suddenly covertly the whistleblower rules were changed https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 5/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 20 of 54 to allow for gossip. It'd be very interesting to find out just how did that come about, it's very convenient." Trump: 'It was a perfect call' The intelligence community inspector general has denied that the rules were changed in this way. Challenged on whether he was merely positing a conspiracy theory, Mr Ross said: "I'm not much of a conspiracy theorist but it does makes one wonder. "All I can say is it's mysterious, it should be looked into, I'm confident that it will be looked into." https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 6/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 21 of 54 Mr Ross said Mr Trump was "obviously very unhappy with this process because it's not a proper process. They're not even following proper procedure". He added: "They talk about a cover-up, but how is it a cover-up when the president voluntarily - not under subpoena - but voluntarily released the transcripts of the conversation, then held a press conference with the other party... what the hell kind of a cover-up is that?" Donald Trump demands to meet anonymous whistleblower The US president says the whistleblower represented his conversation in a "totally inaccurate and fraudulent way" Mr Ross, who has been in the UK visiting American businesses, also warned that many of them were concerned about the state of the Brexit negotiations. "They're very nervous," he said. "They've spent the better part of a billion dollars on measures to mitigate problems. They are very, very uncertain about the outcome and particularly worried about supply chain implications. "UPS told us there are 78 million cross-border checks coming into place. That's a lot in a year." https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 7/11 1/22/2020 'Ridiculous' Trump impeachment based on 'gossip', says US commerce secretary Wilbur Ross Business News Sky News Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 22 of 54 Commenting on Britain's continued involvement with Chinese tech giant Huawei, who are banned in the US but are bidding to be part of the process to install new 5G hardware in the UK, Mr Ross said: "I think it should discomfort the UK. We think people should be very cautious. "If you were about to buy a new car but there was a 10% chance you would be killed because of a defect, would you buy it? I don't think so. "I promise you there's far more than a 10% chance of something untoward happening with Huawei equipment." Huawei's president of government affairs, Victor Zhang, responded: "This claim by the US Commerce Secretary is without foundation and is not supported by a shred of evidence. "Huawei products serve billions of customers around the world and in 30 years we have not had a significant security incident. "As we've seen before, these baseless allegations are simply part of a political campaign by the US government to further the objectives of its trade policy. "Cyber security is a challenge we all face and Huawei is committed to working in partnership with all responsible parties to improve standards worldwide." Sponsored Links https://news.sky.com/story/ridiculous-trump-impeachment-based-on-gossip-says-us-commerce-secretary-wilbur-ross-11824724 8/11 Case Document 20-2 Filed 01/24/20 Page 23 of 54 EXHIBIT 1/22/2020 Kellyanne Conway calls Democrats' bluff on impeachment, claims 'they don't have the votes' Print Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 24 of 54 Close Kellyanne Conway calls Democrats' bluff on impeachment, claims 'they don't have the votes' By Nick Givas Published October 31, 2019 Fox News House Democrats don't have the votes to impeach President Trump and are more concerned about getting reelected than sticking to their political guns, said White House adviser Kellyanne Conway on "Fox & Friends" Thursday. "Impeachment is simple math, you either have the votes or you don't. And guess what – dirty little secret – they don't have the votes," she said. "You just went through the list of Democratic members of Congress who have not committed to an impeachment inquiry. That's key." "Think about all the people they represent — the 17 swing states that are basically being looked at and are in play for next year," Conway continued. "The people, especially the independents in those states, are allergic to a protracted impeachment. Impeaching a president is an extraordinary event that's rarely done because we have democratic elections." HOUSE TO VOTE ON RESOLUTION FORMALIZING IMPEACHMENT INQUIRY Conway said various House Democrats promised to lower drug prices and work with the president on bipartisan infrastructure reform, but have instead defied the will of the people and abused their authority to investigate the president. More from Media Cardinal Dolan supports priest who denied Joe Biden communion, but says he wouldn't have done it Rep. McCaul: Schiff was 'complicit' with whistleblower, doesn't want Republican questioning Left-wing elitists' 'disdain' for the working class will cost Democrats in 2020, says Don Jr. "President Trump was democratically elected. Don't allow people to overturn the last election results, or to interfere in the next ones," she said. CLICK HERE TO GET THE FOX NEWS APP "These Democrats came to Washington and said, 'I'm going to reduce your drug prices.' They're trying to impeach and investigate the president. 'I'm going to work on infrastructure.' They're investigating the president. 'I'm going to keep the economy humming along.' Not a single one of them voted for the greatest tax cut and the deregulation agenda that we had... I think they're having trouble." https://www.foxnews.com/media/democrats-trump-impeachment-house-vote-kellyanne.print 1/2 1/22/2020 Kellyanne Conway calls Democrats' bluff on impeachment, claims 'they don't have the votes' Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 25 of 54 House Democrats are set to vote on procedural rules to officially launch their inquiry on Thursday but aren't expected to vote on actual articles of impeachment against Trump for several more weeks. Nick Givas is a reporter with Fox News. You can find him on Twitter at @NGivasDC. Print Close URL https://www.foxnews.com/media/democrats-trump-impeachment-house-vote-kellyanne Home Video Politics U.S. Opinion Entertainment Tech Science Health Travel Lifestyle World Sports Weather Privacy Terms This material may not be published, broadcast, rewritten, or redistributed. © FOX News Network, LLC. All rights reserved. All market data delayed 20 minutes. Updated Privacy - Do Not Sell my Personal Information New Terms of Use - FAQ https://www.foxnews.com/media/democrats-trump-impeachment-house-vote-kellyanne.print 2/2 Case Document 20-2 Filed 01/24/20 Page 26 of 54 EXHIBIT 1/22/2020 White House Responds To Impeachment Resolution : NPR HOURLY NEWS Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 27 of 54 WAMU 88.5 Edition LISTEN Morning LIVE PLAYLIST DONATE SUBSCRIBE TO THE NPR POLITICS PODCAST POLITICS White House Responds To Impeachment Resolution November 1, 2019 · 7:15 AM ET Heard on Morning Edition 6-Minute Listen PLAYLIST Download Transcript NPR's Steve Inskeep speaks with Deputy Assistant to the President and the White House Principal Deputy Press Secretary Hogan Gidley about the White House's response to the impeachment process. STEVE INSKEEP, HOST: The House has formally approved an impeachment inquiry focused on President Trump. It was very nearly a party-line vote. It establishes a process to make the inquiry more public. People investigators have interviewed in private may be interviewed again at hearings seen on TV. The White House, we should recall, has not disputed the facts found in testimony and documents for the most part. President Trump did ask Ukraine's president to investigate Democrats, including his political rival Joe Biden. The president instead argues that his conduct was, quote, "perfect" and that the investigation is unfair. Hogan Gidley is deputy assistant to the president and the White House principal deputy press secretary, and he's on the phone. Good morning, sir. HOGAN GIDLEY: Good morning. https://www.npr.org/2019/11/01/775324267/white-house-responds-to-impeachment-resolution 1/17 1/22/2020 White House Responds To Impeachment Resolution : NPR Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 28 of 54 INSKEEP: Does the House vote and the process that's now been set up for public hearings make this process any more fair? GIDLEY: Well, two things. First, let me start off with the premise outright, which is completely incorrect. The president was talking to President Zelenskiy about corruption. President Zelenskiy ran on and won on rooting out corruption in Ukraine. It's a worldwide fact. Everyone knows that Ukraine was a corrupt country. That's why Zelenskiy was able to win so easily. The president was simply talking to him about the corruption in that country... INSKEEP: Well, let me just - you say - you said that... GIDLEY: ...And how bad to try and root that out, No. 1. INSKEEP: I want to make sure I'm - Hogan, Hogan, just a - Mr. Gidley, I want to make sure we're clear on this. You said the premise was incorrect. I've just been reading, again, the transcript of the call - or not a transcript, the record of the call. The president asks about a couple of specific things. One is a conspiracy theory involving crowd size - CrowdStrike in a Democratic National Committee server. The other involves Joe Biden and his son, Hunter Biden. Those are the only things the president asked about - of all the possible corruption, the only things the president asks about. Do you disagree that the president asked Ukraine's president to investigate Democrats? GIDLEY: What he didn't talk about were his political rivals for 2020. Everyone in the world - and forgive me, but I'm old enough to remember when Democrats actually cared about what happened in the 2016 election. That's what he was talking about. And quite frankly, this is what the president ran on and won on. And that is, making sure that the money we give these countries, these hundreds of millions of dollars, are actually spent wisely. Now, I understand Democrats don't care about how we spend taxpayer dollars at home, much less abroad, but this president does. INSKEEP: Let me just stop you there - Mr. - let me... https://www.npr.org/2019/11/01/775324267/white-house-responds-to-impeachment-resolution 2/17 1/22/2020 White House Responds To Impeachment Resolution : NPR Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 29 of 54 GIDLEY: To the second part of your point as it relates to the impeachment vote, I think we should move there. INSKEEP: Well, let me - but let's... GIDLEY: That's pretty... INSKEEP: Wait, wait. Hogan, we've got to correct a fact here. You said the president did not ask about a 2020 rival. The record of the call, the White House record of the call, the record you released, says that President Trump asked about Joe Biden. So that is totally false, what you just said. Why do you say that false thing? GIDLEY: In relation to the 2016 corruption. He wasn't talking about 2020, and you and your listeners know that. Let's talk about... INSKEEP: Why - how is Joe Biden involved with the CrowdStrike thing, exactly? GIDLEY: If you're talking about the 2016 election, and you're talking about the corruption as it related to Ukraine, you talk about the person who dealt with Ukraine. That was Joe Biden. I'm sorry, but running for president doesn't insulate you from any criticism or any investigation in any way. INSKEEP: That is certainly true. Let's go on to your question about the process now because you wanted to make a point about the process and whether it's more fair. GIDLEY: Right. It's not. What the Democrats here have done is run a sham impeachment process all behind closed doors, without any sunlight whatsoever, selectively leaking pieces of information without full testimony to try and build a narrative moving into the second round. The vote yesterday did nothing except say we're going to make portions of the next part public after we've already tried to tie you - tie your hands, bound your feet, blindfold you, put you in a closet and beat you senseless. Then we're just going to take the blindfold off for round two. Round three is when we're going to take you in front of the Judiciary Committee. And we expect, though, that you're going to be bloodied up enough where it won't matter. https://www.npr.org/2019/11/01/775324267/white-house-responds-to-impeachment-resolution 3/17 1/22/2020 White House Responds To Impeachment Resolution : NPR Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 30 of 54 The problem is who they're fighting against is Donald Trump. He's going to stand up by round three, fight back and win. INSKEEP: You know, it's interesting. I think Democrats would characterize it differently, but there is an element of truth in what you said that they would have to admit, which is that they've just taken a bunch of testimony in these private hearings. And they're going to call those witnesses back in public and expect them to stand behind those stories, which we largely know. Is that going to make it challenging to defend the president in public? GIDLEY: And face - right, and face cross-examination. INSKEEP: So do you think that there's going to be difficulty defending that case, given that so much of it is already on the record? GIDLEY: No, because you're only hearing, you know, selective pieces of one portion. And then also yesterday, for example, a lot of the things they're doing in private is beginning to backfire. There were reports that Mr. Morrison's testimony was that he felt the president had done nothing wrong, nothing illegal. So there are all types of things coming out of these hearings. And you're kind of making my point, which is it'd be really nice for the American people to get to see this out in the open and in public. If you get a parking ticket, you're afforded due process. You can confront the policeman who gave it to you. You can talk to the judge about it. You can submit evidence. You can ask questions. INSKEEP: Although, they may... GIDLEY: They're trying to impeach a president on nothing. INSKEEP: Although, as you know, the police might investigate that in private first. Then you get a trial, which could be coming. Who knows? Hogan Gidley, thanks so much. Really appreciate it. GIDLEY: Thanks for the time. https://www.npr.org/2019/11/01/775324267/white-house-responds-to-impeachment-resolution 4/17 Case Document 20-2 Filed 01/24/20 Page 31 of 54 EXHIBIT Case Document 20-2 Filed 01/24/20 Page 32 of 54 Tweet Stephanie Grishem a @PressSac I encourage people to take the time to read this. "The Democrats do not even pretend their impeachment game is fair or actuallyr about fact ?nding.This is simply about using a grant of power in the Constitution arbitrarily and politically, outside the bounds of due 9 Jenna Eilis? @iennafilisEso - NOV 13, 2019 My latest in @thehill Dems aren't interested in innocence or guilt. Their only interest is staging a poiitical coup against @reaiDonaidTrump. But this is even bigger than the preaident. it?s an attempt to overthrow the U5. governmerit from the inside.? 109 PM - Nov 12 2819 - Twitte: for iPhone 3.5K Retweets 93H Likes 11 ?1 Case Document 20-2 Filed 01/24/20 Page 33 of 54 (- Tweet Stephanie Grisham @PressSec Rep Turner points out that the first 2 "star? witnesses in this impeachment sham have never even spoken to Think about that: in a Presidential impeachment hearing, the dorms witnesses have never even spoken vv President Trump. This country deserves so much better. 2:06 FM Nov 13, ?019 - Twitter for iPhone 431! Retweets 13.5?. Likes 0 L1 Case Document 20-2 Filed 01/24/20 Page 34 of 54 Tweet . Stephanie Grisham (QB PressSec Very well said! If the dems had the votes they wouldn?t be prolonging this Charade. They?rejust working with their partners in the media to say the words "impeach" 3t "bribery" as much as they can, for as long as they can. But the people of this country are smarter than thatl 0 Rep Andy Biggs 9 @RepAndyEiggsAE - Nov 2m 9 Democrats once were rumored to have plans to impeach @realDonaldTrump by Thanksgiving. Then Christmas. Now after the New Year? it's becoming clear that It?s very difficult to impeach a President when the facts aren't on your side. 9:19 PM Nov 17, 2019 TWItter for IPhone 4.1K Retweets 13.5! Likes 11 .11 Case Document 20-2 Filed 01/24/20 Page 35 of 54 Exhibit I Case Document 20-2 Filed 01/24/20 Page 36 of 54 6 Tweet Dan StavineJrF 6 . ?Adam Schitf is wasting the nation's time with impeachment hearings" Adam thif?f i5 wasting The ?5 heanngg . .. - .r FM: - .- . I?ll. I . TL: .- Case Document 20-2 Filed 01/24/20 Page 37 of 54 Tweet W. Dan Scavina Jr.? 0 Watching Schiff held an embarrassing Impeachment Sham press conference in THE SWAMP from my phone. while President IQ mp is at in London with other World Leaders (below), representing the United States of America! Schiff is a total JOKE, embarrassing himselfl! Case Document 20-2 Filed 01/24/20 Page 38 of 54 EXHIBIT Case Document 20-2 Filed 01/24/20 Page 39 of 54 I . TheWhiteHnuseG Democrats are conducting an impeachment inquiry in search of a crime. 330 .- 2,5? e: i Case Document 20-2 Filed 01/24/20 Page 40 of 54 EXHIBIT Case Document 20-2 Filed 01/24/20 Page 41 of 54 Aaron Rupar? @atrupar Hogan Gidley: as we head into Christmas, please remember that impeachment isn?t putting feed on the table of the American people mu UPI BETH) i7; 01' 1.1:qu 1.1M ween-5. F01 NEWS iw1tter Web Chem 1?4 Retweets "?54 Likes 0 Case Document 20-2 Filed 01/24/20 Page 42 of 54 EXHIBIT 1/22/2020 Print AG Barr warns against 'political' impeachment, hits back at Comey in Fox News interview Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 43 of 54 Close AG Barr warns against 'political' impeachment, hits back at Comey in Fox News interview By Ronn Blitzer Published December 18, 2019 Fox News Attorney General Bill Barr, in an interview Wednesday with Fox News, warned that impeachment could be "trivialized" by Democrats' efforts to remove President Trump, while also firing back at ex-FBI Director James Comey's reaction to the Justice Department inspector general's report on the Russia investigation. Barr sat down with Martha MacCallum as the House of Representatives was debating two articles of impeachment ahead of an expected floor vote. The top law enforcement officer noted that the Constitution specifically includes a high standard for impeachment, and said he does not believe the allegations against President Trump meet that standard. COMEY ACCUSES BARR OF 'IRRESPONSIBLE STATEMENT' ON FBI CONDUCT "As a general matter, I think we have to be careful about trivializing the process and they put in a hurdle of high crimes -- of treason, bribery and other high crimes," Barr told "The Story with Martha MacCallum" in an interview scheduled to air Wednesday night. "The articles of impeachment here do not allege a violation of law, and it looks as if it’s going to be along partisan lines -- I think -- you know, I’m concerned about it being trivialized and used as a political tool." WATCH ATTORNEY GENERAL BARR ON FOX NEWS' 'THE STORY' WEDNESDAY AT 7 PM ET House Republicans made similar arguments as members of both parties took to the House floor throughout the day Wednesday. They clashed over articles of impeachment against Trump alleging abuse of power and obstruction of Congress, in connection with his efforts to pressure Ukraine to launch investigations of Democrats as his administration withheld aid. GOP members have claimed that abuse of power is not a statutory crime, and that if Democrats had a problem with Trump asserting privilege when he instructed witnesses not to comply with requests to testify, they should have gone to the courts. Barr also addressed comments made by Comey in the wake of Inspector General (IG) Michael Horowitz's report and subsequent testimony regarding the FBI's conduct during the Russia probe. Horowitz found that FBI officials misled the Foreign Intelligence Surveillance Court (FISC) through inaccuracies and omissions in warrant applications for the surveillance of former Trump campaign adviser Carter Page. WATCH BILL BARR'S INTERVIEW ON 'THE STORY WITH MARTHA MACCALLUM WEDNESDAY NIGHT Comey was defensive of the FBI during an interview on "Fox News Sunday," insisting that the report did not show that agents engaged in any intentional misconduct. Horowitz did say that the investigation was launched https://www.foxnews.com/politics/ag-barr-warns-against-political-impeachment-hits-back-at-comey-fox-news-interview.print 1/2 1/22/2020 AG Barr warns against 'political' impeachment, hits back at Comey in Fox News interview Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 44 of 54 properly and that he did not see evidence of political bias. Still, he has also said that the motivation behind the FBI's actions remains unknown. "There are so many errors, we couldn’t reach a conclusion or make a determination on what motivated those failures other than we did not credit what we lay out here were the explanations we got," Horowitz told the Senate Homeland Security and Governmental Affairs Committee during a Wednesday hearing. This is similar to what Barr said during an NBC News interview after the report's release. "These irregularities, these misstatements, these omissions were not satisfactorily explained, and I think that leaves open the possibility to infer bad faith," he said. Yet Comey called this "an irresponsible statement," telling Fox News' Chris Wallace that Barr "does not have a factual basis as the Attorney General of the United States to be speculating that agents acted in bad faith." CLICK HERE TO GET THE FOX NEWS APP Barr said he does not view the situation the same way as the former FBI director. "One of the things that I object to is the tack being taken by Comey, which is to suggest that people who are criticizing or trying to get to the bottom of the misconduct are somehow attacking the FBI. I think that is nonsense," Barr said. "We’re criticizing and concerned about misconduct by a few actors at the top of the FBI, and they should be criticized if they engaged in serious misconduct." Print Close URL https://www.foxnews.com/politics/ag-barr-warns-against-political-impeachment-hits-back-at-comey-fox-newsinterview Home Video Politics U.S. Opinion Entertainment Tech Science Health Travel Lifestyle World Sports Weather Privacy Terms This material may not be published, broadcast, rewritten, or redistributed. © FOX News Network, LLC. All rights reserved. All market data delayed 20 minutes. Updated Privacy - Do Not Sell my Personal Information New Terms of Use - FAQ https://www.foxnews.com/politics/ag-barr-warns-against-political-impeachment-hits-back-at-comey-fox-news-interview.print 2/2 Case Document 20-2 Filed 01/24/20 Page 45 of 54 EXHIBIT 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 46 of 54 JUSTICE NEWS Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National Lawyers Convention Washington, DC ~ Friday, November 15, 2019 Remarks as Prepared for Delivery Good Evening. Thank you all for being here. And thank you to Gene [Meyer] for your kind introduction. It is an honor to be here this evening delivering the 19th Annual Barbara K. Olson Memorial Lecture. I had the privilege of knowing Barbara and had deep affection for her. I miss her brilliance and ebullient spirit. It is a privilege for me to participate in this series, which honors her. The theme for this year’s Annual Convention is “Originalism,” which is a fitting choice — though, dare I say, a somewhat “unoriginal” one for the Federalist Society. I say that because the Federalist Society has played an historic role in taking originalism “mainstream.” While other organizations have contributed to the cause, the Federalist Society has been in the vanguard. A watershed for the cause was the decision of the American people to send Ronald Reagan to the White House, accompanied by his close advisor Ed Meese and a cadre of others who were firmly committed to an originalist approach to the law. I was honored to work with Ed in the Reagan White House and be there several weeks ago when President Trump presented him with the Presidential Medal of Freedom. As the President aptly noted, over the course of his career, Ed Meese has been among the Nation’s “most eloquent champions for following the Constitution as written.” I am also proud to serve as the Attorney General under President Trump, who has taken up that torch in his judicial appointments. That is true of his two outstanding appointments to the Supreme Court, Justices Neil Gorsuch and Brett Kavanaugh; of the many superb court of appeals and district court judges he has appointed, many of whom are here this week; and of the many outstanding judicial nominees to come, many of whom are also here this week. *********** I wanted to choose a topic for this afternoon’s lecture that had an originalist angle. It will likely come as little surprise to this group that I have chosen to speak about the Constitution’s approach to executive power. I deeply admire the American Presidency as a political and constitutional institution. I believe it is, one of the great, and remarkable innovations in our Constitution, and has been one of the most successful features of the Constitution in protecting the liberties of the American people. More than any other branch, it has fulfilled the expectations of the Framers. Unfortunately, over the past several decades, we have seen steady encroachment on Presidential authority by the other branches of government. This process I think has substantially weakened the functioning of the Executive Branch, to the detriment of the Nation. This evening, I would like to expand a bit on these themes. I. First, let me say a little about what the Framers had in mind in establishing an independent Executive in Article II of the Constitution. The grammar school civics class version of our Revolution is that it was a rebellion against monarchial tyranny, and that, in framing our Constitution, one of the main preoccupations of the Founders was to keep the Executive weak. This https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 1/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 47 of 54 is misguided. By the time of the Glorious Revolution of 1689, monarchical power was effectively neutered and had begun its steady decline. Parliamentary power was well on its way to supremacy and was effectively in the driver’s seat. By the time of the American Revolution, the patriots well understood that their prime antagonist was an overweening Parliament. Indeed, British thinkers came to conceive of Parliament, rather than the people, as the seat of Sovereignty. During the Revolutionary era, American thinkers who considered inaugurating a republican form of government tended to think of the Executive component as essentially an errand boy of a Supreme legislative branch. Often the Executive (sometimes constituted as a multi-member council) was conceived as a creature of the Legislature, dependent on and subservient to that body, whose sole function was carrying out the Legislative will. Under the Articles of Confederation, for example, there was no Executive separate from Congress. Things changed by the Constitutional Convention of 1787. To my mind, the real “miracle” in Philadelphia that summer was the creation of a strong Executive, independent of, and coequal with, the other two branches of government. The consensus for a strong, independent Executive arose from the Framers’ experience in the Revolution and under the Articles of Confederation. They had seen that the War had almost been lost and was a bumbling enterprise because of the lack of strong Executive leadership. Under the Articles of Confederation, they had been mortified at the inability of the United States to protect itself against foreign impositions or to be taken seriously on the international stage. They had also seen that, after the Revolution, too many States had adopted constitutions with weak Executives overly subordinate to the Legislatures. Where this had been the case, state governments had proven incompetent and indeed tyrannical. From these practical experiences, the Framers had come to appreciate that, to be successful, Republican government required the capacity to act with energy, consistency and decisiveness. They had come to agree that those attributes could best be provided by making the Executive power independent of the divided counsels of the Legislative branch and vesting the Executive power in the hands of a solitary individual, regularly elected for a limited term by the Nation as a whole. As Jefferson put it, ‘[F]or the prompt, clear, and consistent action so necessary in an Executive, unity of person is necessary….” While there may have been some differences among the Framers as to the precise scope of Executive power in particular areas, there was general agreement about its nature. Just as the great separation-of-powers theorists– Polybius, Montesquieu, Locke – had, the Framers thought of Executive power as a distinct specie of power. To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation. But the Framers understood that Executive power meant more than this. It also entailed the power to handle essential sovereign functions – such as the conduct of foreign relations and the prosecution of war – which by their very nature cannot be directed by a pre-existing legal regime but rather demand speed, secrecy, unity of purpose, and prudent judgment to meet contingent circumstances. They agreed that – due to the very nature of the activities involved, and the kind of decision-making they require – the Constitution generally vested authority over these spheres in the Executive. For example, Jefferson, our first Secretary of State, described the conduct of foreign relations as “Executive altogether,” subject only to the explicit exceptions defined in the Constitution, such as the Senate’s power to ratify Treaties. A related, and third aspect of Executive power is the power to address exigent circumstances that demand quick action to protect the well-being of the Nation but on which the law is either silent or inadequate – such as dealing with a plague or natural disaster. This residual power to meet contingency is essentially the federative power discussed by Locke in his Second Treatise. And, finally, there are the Executive’s powers of internal management. These are the powers necessary for the President to superintend and control the Executive function, including the powers necessary to protect the independence of the Executive branch and the confidentiality of its internal deliberations. Some of these powers are express in the Constitution, such as the Appointment power, and others are implicit, such as the Removal power. One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.” They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 2/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 48 of 54 idea of the unitary executive does not go so much to the breadth of Presidential power. Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision. This is not “new,” and it is not a “theory.” It is a description of what the Framers unquestionably did in Article II of the Constitution. After you decide to establish an Executive function independent of the Legislature, naturally the next question is, who will perform that function? The Framers had two potential models. They could insinuate “checks and balances” into the Executive branch itself by conferring Executive power on multiple individuals (a council) thus dividing the power. Alternatively, they could vest Executive power in a solitary individual. The Framers quite explicitly chose the latter model because they believed that vesting Executive authority in one person would imbue the Presidency with precisely the attributes necessary for energetic government. Even Jefferson – usually seen as less of a hawk than Hamilton on Executive power – was insistent that Executive power be placed in “single hands,” and he cited the America’s unitary Executive as a signal feature that distinguished America’s success from France’s failed republican experiment. The implications of the Framers’ decision are obvious. If Congress attempts to vest the power to execute the law in someone beyond the control of the President, it contravenes the Framers’ clear intent to vest that power in a single person, the President. So much for this supposedly nefarious theory of the unitary executive. II. We all understand that the Framers expected that the three branches would be jostling and jousting with each other, as each threatened to encroach on the prerogatives of the others. They thought this was not only natural, but salutary, and they provisioned each branch with the wherewithal to fight and to defend itself in these interbranch struggles for power. So let me turn now to how the Executive is presently faring in these interbranch battles. I am concerned that the deck has become stacked against the Executive. Since the mid-60s, there has been a steady grinding down of the Executive branch’s authority, that accelerated after Watergate. More and more, the President’s ability to act in areas in which he has discretion has become smothered by the encroachments of the other branches. When these disputes arise, I think there are two aspects of contemporary thought that tend to operate to the disadvantage of the Executive. The first is the notion that politics in a free republic is all about the Legislative and Judicial branches protecting liberty by imposing restrictions on the Executive. The premise is that the greatest danger of government becoming oppressive arises from the prospect of Executive excess. So, there is a knee-jerk tendency to see the Legislative and Judicial branches as the good guys protecting society from a rapacious would-be autocrat. This prejudice is wrong-headed and atavistic. It comes out of the early English Whig view of politics and English constitutional experience, where political evolution was precisely that. You started out with a King who holds all the cards; he holds all the power, including Legislative and Judicial. Political evolution involved a process by which the Legislative power gradually, over hundreds of years, reigned in the King, and extracted and established its own powers, as well as those of the Judiciary. A watershed in this evolution was, of course, the Glorious Revolution in 1689. But by 1787, we had the exact opposite model in the United States. The Founders greatly admired how the British constitution had given rise to the principles of a balanced government. But they felt that the British constitution had achieved only an imperfect form of this model. They saw themselves as framing a more perfect version of separation of powers and a balanced constitution. Part of their more perfect construction was a new kind of Executive. They created an office that was already the ideal Whig Executive. It already had built into it the limitations that Whig doctrine aspired to. It did not have the power to tax and spend; it was constrained by habeas corpus and by due process in enforcing the law against members of the body politic; it was elected for a limited term of office; and it was elected by the nation as whole. That is a remarkable democratic institution – the only figure elected by the Nation as a whole. With the creation of the American Presidency, the Whig’s obsessive focus on the dangers of monarchical rule lost relevance. This fundamental shift in view was reflected in the Convention debates over the new frame of government. Their concerns were very different from those that weighed on 17th century English Whigs. It was not Executive power that https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 3/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 49 of 54 was of so much concern to them; it was danger of the legislative branch, which they viewed as the most dangerous branch to liberty. As Madison warned, the “legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” And indeed, they viewed the Presidency as a check on the Legislative branch. The second contemporary way of thinking that operates against the Executive is a notion that the Constitution does not sharply allocate powers among the three branches, but rather that the branches, especially the political branches, “share” powers. The idea at work here is that, because two branches both have a role to play in a particular area, we should see them as sharing power in that area and, it is not such a big deal if one branch expands its role within that sphere at the expense of the other. This mushy thinking obscures what it means to say that powers are shared under the Constitution. Constitution generally assigns broad powers to each of the branches in defined areas. Thus, the Legislative power granted in the Constitution is granted to the Congress. At the same time, the Constitution gives the Executive a specific power in the Legislative realm – the veto power. Thus, the Executive “shares” Legislative power only to the extent of the specific grant of veto power. The Executive does not get to interfere with the broader Legislative power assigned to the Congress. In recent years, both the Legislative and Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority. Let me first say something about the Legislature. A. As I have said, the Framers fully expected intense pulling and hauling between the Congress and the President. Unfortunately, just in the past few years, we have seen these conflicts take on an entirely new character. Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration. Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power. It obviously connotes that the government is not legitimate. This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic. What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government. A prime example of this is the Senate’s unprecedented abuse of the advice-and-consent process. The Senate is free to exercise that power to reject unqualified nominees, but that power was never intended to allow the Senate to systematically oppose and draw out the approval process for every appointee so as to prevent the President from building a functional government. Yet that is precisely what the Senate minority has done from his very first days in office. As of September of this year, the Senate had been forced to invoke cloture on 236 Trump nominees — each of those representing its own massive consumption of legislative time meant only to delay an inevitable confirmation. How many times was cloture invoked on nominees during President Obama’s first term? 17 times. The Second President Bush’s first term? Four times. It is reasonable to wonder whether a future President will actually be able to form a functioning administration if his or her party does not hold the Senate. Congress has in recent years also largely abdicated its core function of legislating on the most pressing issues facing the national government. They either decline to legislate on major questions or, if they do, punt the most difficult and critical issues by making broad delegations to a modern administrative state that they increasingly seek to insulate from Presidential control. This phenomenon first arose in the wake of the Great Depression, as Congress created a number of so-called “independent agencies” and housed them, at least nominally, in the Executive Branch. More recently, the Dodd-Frank Act’s creation of the Consumer Financial Protection Branch, a single-headed independent agency that functions like a junior varsity President for economic regulation, is just one of many examples. Of course, Congress’s effective withdrawal from the business of legislating leaves it with a lot of time for other pursuits. And the pursuit of choice, particularly for the opposition party, has been to drown the Executive Branch with “oversight” demands for testimony and documents. I do not deny that Congress has some implied authority to conduct oversight https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 4/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 50 of 54 as an incident to its Legislative Power. But the sheer volume of what we see today – the pursuit of scores of parallel “investigations” through an avalanche of subpoenas – is plainly designed to incapacitate the Executive Branch, and indeed is touted as such. The costs of this constant harassment are real. For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function. Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection. There is no FOIA for Congress or the Courts. Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process. That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people. In recent years, we have seen substantial encroachment by Congress in the area of executive privilege. The Executive Branch and the Supreme Court have long recognized that the need for confidentiality in Executive Branch decisionmaking necessarily means that some communications must remain off limits to Congress and the public. There was a time when Congress respected this important principle as well. But today, Congress is increasingly quick to dismiss good-faith attempts to protect Executive Branch equities, labeling such efforts “obstruction of Congress” and holding Cabinet Secretaries in contempt. One of the ironies of today is that those who oppose this President constantly accuse this Administration of “shredding” constitutional norms and waging a war on the rule of law. When I ask my friends on the other side, what exactly are you referring to? I get vacuous stares, followed by sputtering about the Travel Ban or some such thing. While the President has certainly thrown out the traditional Beltway playbook, he was upfront about that beforehand, and the people voted for him. What I am talking about today are fundamental constitutional precepts. The fact is that this Administration’s policy initiatives and proposed rules, including the Travel Ban, have transgressed neither constitutional, nor traditional, norms, and have been amply supported by the law and patiently litigated through the Court system to vindication. Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law. The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law. This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day. It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic. In any age, the so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end. They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications. They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides. Conservatives, on the other hand, do not seek an earthly paradise. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing. This means that we naturally test the propriety and wisdom of action under a “rule of law” standard. The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances? For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy far, especially when doing so under the weight of a hyper-partisan media. https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 5/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX DocumentB.20-2 Filed 01/24/20 Page 51 of 54 Let me turn now to what I believe has been the prime source of the erosion of separation-of-power principles generally, and Executive Branch authority specifically. I am speaking of the Judicial Branch. In recent years the Judiciary has been steadily encroaching on Executive responsibilities in a way that has substantially undercut the functioning of the Presidency. The Courts have done this in essentially two ways: First, the Judiciary has appointed itself the ultimate arbiter of separation of powers disputes between Congress and Executive, thus preempting the political process, which the Framers conceived as the primary check on interbranch rivalry. Second, the Judiciary has usurped Presidential authority for itself, either (a) by, under the rubric of “review,” substituting its judgment for the Executive’s in areas committed to the President’s discretion, or (b) by assuming direct control over realms of decisionmaking that heretofore have been considered at the core of Presidential power. The Framers did not envision that the Courts would play the role of arbiter of turf disputes between the political branches. As Madison explained in Federalist 51, “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others.” By giving each the Congress and the Presidency the tools to fend off the encroachments of the others, the Framers believed this would force compromise and political accommodation. The “constitutional means” to “resist encroachment” that Madison described take various forms. As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other. Conspicuously absent from the list is running to the courts to resolve their disputes. That omission makes sense. When the Judiciary purports to pronounce a conclusive resolution to constitutional disputes between the other two branches, it does not act as a co-equal. And, if the political branches believe the courts will resolve their constitutional disputes, they have no incentive to debate their differences through the democratic process — with input from and accountability to the people. And they will not even try to make the hard choices needed to forge compromise. The long experience of our country is that the political branches can work out their constitutional differences without resort to the courts. In any event, the prospect that courts can meaningfully resolve interbranch disputes about the meaning of the Constitution is mostly a false promise. How is a court supposed to decide, for example, whether Congress’s power to collect information in pursuit of its legislative function overrides the President’s power to receive confidential advice in pursuit of his executive function? Nothing in the Constitution provides a manageable standard for resolving such a question. It is thus no surprise that the courts have produced amorphous, unpredictable balancing tests like the Court’s holding in Morrison v. Olson that Congress did not “disrupt the proper balance between the coordinate branches by preventing the Executive Branch from accomplishing its constitutionally assigned functions.” Apart from their overzealous role in interbranch disputes, the courts have increasingly engaged directly in usurping Presidential decision-making authority for themselves. One way courts have effectively done this is by expanding both the scope and the intensity of judicial review. In recent years, we have lost sight of the fact that many critical decisions in life are not amenable to the model of judicial decision-making. They cannot be reduced to tidy evidentiary standards and specific quantums of proof in an adversarial process. They require what we used to call prudential judgment. They are decisions that frequently have to be made promptly, on incomplete and uncertain information and necessarily involve weighing a wide range of competing risks and making predictions about the future. Such decisions frequently call into play the “precautionary principle.” This is the principle that when a decision maker is accountable for discharging a certain obligation – such as protecting the public’s safety – it is better, when assessing imperfect information, to be wrong and safe, than wrong and sorry. It was once well recognized that such matters were largely unreviewable and that the courts should not be substituting their judgments for the prudential judgments reached by the accountable Executive officials. This outlook now seems to have gone by the boards. Courts are now willing, under the banner of judicial review, to substitute their judgment for https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 6/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 52 of 54 the President’s on matters that only a few decades ago would have been unimaginable – such as matters involving national security or foreign affairs. The Travel Ban case is a good example. There the President made a decision under an explicit legislative grant of authority, as well has his Constitutional national security role, to temporarily suspend entry to aliens coming from a half dozen countries pending adoption of more effective vetting processes. The common denominator of the initial countries selected was that they were unquestionable hubs of terrorism activity, which lacked functional central government’s and responsible law enforcement and intelligence services that could assist us in identifying security risks among their nationals seeking entry. Despite the fact there were clearly justifiable security grounds for the measure, the district court in Hawaii and the Ninth Circuit blocked this public-safety measure for a year and half on the theory that the President’s motive for the order was religious bias against Muslims. This was just the first of many immigration measures based on good and sufficient security grounds that the courts have second guessed since the beginning of the Trump Administration. The Travel Ban case highlights an especially troubling aspect of the recent tendency to expand judicial review. The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship. What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives. The impact of these judicial intrusions on Executive responsibility have been hugely magnified by another judicial innovation – the nationwide injunction. First used in 1963, and sparely since then until recently, these court orders enjoin enforcement of a policy not just against the parties to a case, but against everyone. Since President Trump took office, district courts have issued over 40 nationwide injunctions against the government. By comparison, during President Obama’s first two years, district courts issued a total of two nationwide injunctions against the government. Both were vacated by the Ninth Circuit. It is no exaggeration to say that virtually every major policy of the Trump Administration has been subjected to immediate freezing by the lower courts. No other President has been subjected to such sustained efforts to debilitate his policy agenda. The legal flaws underlying nationwide injunctions are myriad. Just to summarize briefly, nationwide injunctions have no foundation in courts’ Article III jurisdiction or traditional equitable powers; they radically inflate the role of district judges, allowing any one of more than 600 individuals to singlehandedly freeze a policy nationwide, a power that no single appellate judge or Justice can accomplish; they foreclose percolation and reasoned debate among lower courts, often requiring the Supreme Court to decide complex legal issues in an emergency posture with limited briefing; they enable transparent forum shopping, which saps public confidence in the integrity of the judiciary; and they displace the settled mechanisms for aggregate litigation of genuinely nationwide claims, such as Rule 23 class actions. Of particular relevance to my topic tonight, nationwide injunctions also disrupt the political process. There is no better example than the courts’ handling of the rescission of DACA. As you recall, DACA was a discretionary policy of enforcement forbearance adopted by President Obama’s administration. The Fifth Circuit concluded that the closely related DAPA policy (along with an expansion of DACA) was unlawful, and the Supreme Court affirmed that decision by an equally divided vote. Given that DACA was discretionary — and that four Justices apparently thought a legally indistinguishable policy was unlawful —President Trump’s administration understandably decided to rescind DACA. https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 7/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX Document 20-2 Filed 01/24/20 Page 53 of 54 Importantly, however, the President coupled that rescission with negotiations over legislation that would create a lawful and better alternative as part of a broader immigration compromise. In the middle of those negotiations — indeed, on the same day the President invited cameras into the Cabinet Room to broadcast his negotiations with bipartisan leaders from both Houses of Congress — a district judge in the Northern District of California enjoined the rescission of DACA nationwide. Unsurprisingly, the negotiations over immigration legislation collapsed after one side achieved its preferred outcome through judicial means. A humanitarian crisis at the southern border ensued. And just this week, the Supreme Court finally heard argument on the legality of the DACA rescission. The Court will not likely decide the case until next summer, meaning that President Trump will have spent almost his entire first term enforcing President Obama’s signature immigration policy, even though that policy is discretionary and half the Supreme Court concluded that a legally indistinguishable policy was unlawful. That is not how our democratic system is supposed to work. To my mind, the most blatant and consequential usurpation of Executive power in our history was played out during the Administration of President George W. Bush, when the Supreme Court, in a series of cases, set itself up as the ultimate arbiter and superintendent of military decisions inherent in prosecuting a military conflict – decisions that lie at the very core of the President’s discretion as Commander in Chief. This usurpation climaxed with the Court’s 2008 decision in Boumediene. There, the Supreme Court overturned hundreds of years of American, and earlier British, law and practice, which had always considered decisions as to whether to detain foreign combatants to be purely military judgments which civilian judges had no power to review. For the first time, the Court ruled that foreign persons who had no connection with the United States other than being confronted by our military on the battlefield had “due process” rights and thus have the right to habeas corpus to obtain judicial review of whether the military has a sufficient evidentiary basis to hold them. In essence, the Court has taken the rules that govern our domestic criminal justice process and carried them over and superimposed them on the Nation’s activities when it is engaged in armed conflict with foreign enemies. This rides roughshod over a fundamental distinction that is integral to the Constitution and integral to the role played by the President in our system. As the Preamble suggests, governments are established for two different security reasons – to secure domestic tranquility and to provide for defense against external dangers. These are two very different realms of government action. In a nutshell, under the Constitution, when the government is using its law enforcement powers domestically to discipline an errant member of the community for a violation of law, then protecting the liberty of the American people requires that we sharply curtail the government’s power so it does not itself threaten the liberties of the people. Thus, the Constitution in this arena deliberately sacrifices efficiency; invests the accused with rights that that essentially create a level playing field between the collective interests of community and those of the individual; and dilutes the government’s power by dividing it and turning it on itself as a check, at each stage the Judiciary is expressly empowered to serve as a check and neutral arbiter. None of these considerations are applicable when the government is defending the country against armed attacks from foreign enemies. In this realm, the Constitution is concerned with one thing – preserving the freedom of our political community by destroying the external threat. Here, the Constitution is not concerned with handicapping the government to preserve other values. The Constitution does not confer “rights” on foreign enemies. Rather the Constitution is designed to maximize the government’s efficiency to achieve victory – even at the cost of “collateral damage” that would be unacceptable in the domestic realm. The idea that the judiciary acts as a neutral check on the political branches to protect foreign enemies from our government is insane. The impact of Boumediene has been extremely consequential. For the first time in American history our armed forces is incapable of taking prisoners. We are now in a crazy position that, if we identify a terrorist enemy on the battlefield, such as ISIS, we can kill them with drone or any other weapon. But if we capture them and want to hold them at Guantanamo or in the United States, the military is tied down in developing evidence for an adversarial process and must spend resources in interminable litigation. The fact that our courts are now willing to invade and muck about in these core areas of Presidential responsibility illustrates how far the doctrine of Separation of Powers has been eroded. https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 8/9 1/22/2020 Attorney General William P. Barr Delivers the 19th Annual Barbara K. Olson Memorial Lecture at the Federalist Society's 2019 National L… Case 8:19-cv-02322-PX DocumentIII.20-2 Filed 01/24/20 Page 54 of 54 In this partisan age, we should take special care not to allow the passions of the moment to cause us to permanently disfigure the genius of our Constitutional structure. As we look back over the sweep of American history, it has been the American Presidency that has best fulfilled the vision of the Founders. It has brought to our Republic a dynamism and effectiveness that other democracies have lacked. At every critical juncture where the country has faced a great challenge – – whether it be in our earliest years as the weak, nascent country combating regional rebellions, and maneuvering for survival in a world of far stronger nations; – whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory; – whether it be the Civil War, the epic test of the Nation; – World War II and the struggle against Fascism; – the Cold War and the challenge of Communism; – the struggle against racial discrimination; – and most recently, the fight against Islamist Fascism and international terrorism. One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success. In so many areas, it is critical to our Nation’s future that we restore and preserve in their full vigor our Founding principles. Not the least of these is the Framers’ vision of a strong, independent Executive, chosen by the country as a whole. Speaker: Attorney General William Barr Component(s): Office of the Attorney General Updated November 15, 2019 https://www.justice.gov/opa/speech/attorney-general-william-p-barr-delivers-19th-annual-barbara-k-olson-memorial-lecture 9/9